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defendant, an actor, had brandished a pistol and Jones, p. 265. — An action lies in Rhode Island for threatened to give the deceased a “matinee.” In Allen breach of contract of sale of goods, the contract being v. Slute, p. 293, the reporter says: “An eloquent and made there and valid there, but the goods to be delivered erudite argument was filed for the appellant, by some in New York, where the contract was invalid by the one whose modesty deterred him from appending his statute of frauds. Carpenter v. McLaughlin, p. 270. — name thereto." That argument prevailed. For sober One who as surety and before utterance indorses a consideration we recommend Walker v. State, p. 245, a note payable to another is liable to the payee as a joint murder case, where the examining magistrate had com- maker, although the payee knew him to be a surety. pelled the prisoner to make his footprints in an ash Shurtleff v. Millard, p. 272. — A minor may recover heap, in order that they might be compared with tracks money voluntarily paid by him on a contract which he found at the scene of the crime. This was held regu- has repudiated, and from which he derived no benefit. lar, citing State v. Graham, 74 N. C. 646; S. C., 21 Am. Ordway v. Remington, p. 319. — Under a lease for years Rep. 493, and distinguishing Stokes v. State, 5 Baxt. from a specified day, rent conditioned to be payable 619; S. C., 30 Am. Rep. 72. (But see State v. Sanders, quarterly on certain days is not due until after mid68 Mo. 202; S. C., 30 Am. Rep. 782, where the jury, at night of such days. Austin v. Coggeshall, p. 329. — A the suggestion of the prisoner's counsel, made an ex- city is not liable for the expense of a public entertainperiment out of court with worn-out boots like the ment given to strangers upon the resolution of the prisoner's, and the conviction was set aside.) In common council. Providence Steam Engine Co. v. Wright v. State, p. 574, the principal State's witness Providence, etc., Steamship Co., p. 348. - A riparian claimed to have acquired his knowledge of the offense owner platted his land into streets, lots, and squares, in the character of a detective and feigned accomplice. one of such streets being below high-water mark; the The question of his real guilt was left to the jury. street was subsequently filled out, but was subse

quently closed by the owner of all the adjoining lots; XII RHODE ISLAND REPORTS.

held, that he could be compelled to reopen it by the

owner of some of the other lots. Lee v. Union RailThis volume, published by Houghton, Osgood & Co. road Co., p. 383. – A was injured by a horse driven by of Boston, contains decisions down to March, 1880. | B, on a highway, and frightened by the overturn of a In the old fable, the rabbit took pride to herself as sleigh by a heap of snow and ice wrongfully made on against the lioness, for producing so many young at a the highway by C; held, that A could maintain an birth, whereas the lioness brought forth but one. action against C therefor. Buldwin v. Barney, p. 392. Unum sed leonem, responded the lioness. So the - A, carefully driving on Sunday on a highway in Rhode Island court, although not prolific, never puts Massachusetts, was injured by the reckless driving of forth a volume that is not full of interest. Her court B; held, that A could maintain an action therefor is one of the ablest, and her reporter, Mr. Arnold against B. Glavin v. Rhode Island Hospital, p. 411. — Green, is one of the very best. Of the contents of the One who sustains injury at a public hospital from present volume we have already called particular atten- unskillful surgical treatment by an unpaid attending tion to a considerable portion, and now will simply surgeon, may maintain an action against the hospital note the following important decisions inclusive of therefor, although the hospital is a public charity, and those to which we have alluded: Williams v. Winsor, the plaintiff paid nothing but a small amount for board p. 9. — A mortgage of property subsequently to be and attendance. Cassidy v. Angell, 'p. 447. – Where acquired is valid in equity. Saint Joseph's Church v. one was found fatally injured in an excavation in a Assessors of Taxes, p. 19. — The residence of a priest highway, and there was no proof of the circumstances or clergyman is not exempt from taxation as a “build- of his death, the jury may consider his habits as to ing for religious worship,” because it contains one temperance and caution, and his acquaintance with room set apart as a religious chapel. Wakefield v. the locality, upon the question whether he had used Newell, p. 75. – A municipal corporation is not liable reasonable care. McKim v. McKim, p. 462. — In case for allowing ordinary surface water to escape from a of separation of husband and wife, equally fit, by highway on to adjacent land, por for the results of character and circumstances, to have the custody of such ordinary changes of grade as must be presumed children, the custody of a delicate female child of four to have been contemplated and paid for on laying out years of age will be awarded to the mother for the the highway. Elliott v. Gower, p. 79. — A married time being. Peck v. Peck, p. 485. — Betrothal, followed woman may charge her separate equitable estate ex- by cohabitation, but without a present agreement to pressly in writing, or orally when the contract is for become husband and wife, does not constitute a valid the benefit of herself or the estate. King Philip Mills marriage. Hatch v. Tucker, p. 501. — The consignee v. Slater, p. 82. — The plaintiff having failed in the first and receiver of a cargo is liable for the freight, although deliveries of goods which he contracted to manufac- the master, owing to a dispute with the person who ture and deliver, in successive lots, cannot compel the loaded the vessel about the price of trimming the acceptance of goods subsequently manufactured and cargo, sailed without signing the bill of lading; and offered. Kelley v. Silver Spring Co., p. 112. — An adult he cannot deduct that price from the freight. Fallon employee, injured by imperfect and unfenced machin- v. O'Brien, p 518. - One whose horse escaped from an ery, cannot maintain an action against his employer inclosure, and strayed on a highway, without negliwhere he himself was familiar with the machinery and gence on the part of the owner in suffering the escape had long worked with it without complaint. Butcher or in recapturing the horse, and injured a person on v. Providence Gas Co., p. 149. --- Plants in plaintiff's the highway, is not liable for such injury. Carpenter greenhouse were injured by the escape of gas from the v. Carpenter, p. 544. — A testator having directed his defendant's mains, laid in a city street, through a city executors to invest $5,000 in their names as executors, sewer, owing to the negligence of the city in building for the benefit of his grandson, the executors in their the sewer; held, that defendant was liable. Bennett v. books charged themselves as trustees and credited the Lovell, p. 166. — The plaintiff sustained injury through grandson with that sum, invested it in government the fright of his horse, on a highway, by tubing and and State bonds, and deposited them in a bank vault, machinery left by defendant on the highway; held, in a tin box, in an envelope labelled, "investment of that defendant was liable. Goodell v. Fairbrother, p. $5,000 for" the grandson, with the date of purchase; 233. -- One who hires a piano, with an agreement that the vault was robbed and the bouds were lost; the when and not until the rent amounts to a specified sum executors, giving iudemnity, procured new bonds in the piano shall become his property, has no attachable their place, through an agent, whom they had reason interest before the payment of the full sum. Hunt v. to suppose honest, but who appropriated the bouds, so

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mond county to record certain papers; for the build- Rule 7th of our Court of Appeals has been langed ing of a canal bridge upon Genesee street in Utica; in so as to read as follows: Any person who has been relation to One Hundred and Eleventh street in the admitted, and has practiced three years as an attorney city of New York; for the relief of Bridget Gray; and counsellor in the highest court of law in another relative to the Public Exchange in the city of New State, may be admitted and licensed without examinaYork; amending act creating separate road district in tion. And the General Term of the Supreme Court the town of Middletown, Richmond county; in rela- may, in its discretion, so admit and license any person tion to companies insuring steam boilers; to incorpo- | who has thus practiced in another country. But he rate Excelsior Hose Company in Warwick; for the must possess the other qualifications required by these protection of fish in Monroe county; amending the rules, and must produce a letter of recommendation general law relative to fire insurance; repealing act from one of the judges of the highest court of law of relating to the pay of certain town officers in Sullivan such other State, or furnish other satisfactory evidence county; for the relief of Mary A. Van de Water; to of character and qualifications." incorporate the Bachelor Club of the city of New York; for the relief of James E. McVeany; relative

The July number of the Criminal Law Magazine to certain claims in abating nuisances in Buffalo; contaius the following leading articles: The plea of establishing the compensation of the county judge of insanity as an answer to an indictment, by John OrRockland county; legalizing the official acts of Daniel dronaux, and Interposing the statute of limitations by P. Cornell as notary public; rebuilding Fulton Market demurrer, by Franklin Fisk Heard. Also a note upon in the city of New York; to incorporate the Grand

State v. Redemier, as to burden of proof of insanity; Council of the Royal Arcanum; relative to the organ

five other important cases in full, digests, and other ization and regulation of certain business corporations; interesting matter. The Magazine is an editorial sucto legalize the acts of Franklin C. Whitney as a notary

In Kansas Central Railway Co. v. Allen, 22 public; relating to Independence river; legalizing the

Kans. 285, an action brought for injuries sustained by acts of Samuel Williams, a justice of the peace;

a boy while disporting on a railway turntable, the amending the game law; preventing the sale of adulter- court thus describe the restless small boy: “Everyated vinegar; relative to telegraph companies; in rela- | body knows that by nature and by instinct boys love tion to the harbor and port of New York; amending

to ride, and love to move by other meaus than their general law relating to public instruction; relative to own locomotion. They will cling to the hind ends of apple barrels; for the enlargement of a canal bridge moving wagons, ride upon swings and swinging gates, at Fultonville; relative to the estate of George Bright, slide upon cellar doors and the rails of stair-cases, pull deceased; to iucorporate the order Germania; to make sleds up hill in order to ride down upon them on the effectual judicial decrees against unknown owners;

snow, and even pay to ride upon imitation horses and relative to criminals and commutation of their sen- imitation chariots swung around in a circle by means tences; authorizing trustees of religious corporations of steam or horse power. This last is very much like to appoint constables; relative to the superintendent riding around in a circle upon a turn-table. Now, of the poor of Westchester county; for the better everybody, knowing the nature and the instincts comsecurity of the bonds of public officers; for the relief

mon to all boys, must act accordingly. No person has of the sureties of trustees, committees and guardians; a right to leave, even on his own land, dangerous amending the game law; relative to the superintendent machinery calculated to attract and entice boys to it, of the poor of Columbia county; relative to making there to be injured, unless he first takes proper steps good deficits in capital of banking institutions; repeal- to guard against all danger; and any person who thus ing act relating to draining certain lowlands in Orange does leave dangerous machinery exposed, without first county; relating to the printing of the Code of Crimi- providing against all danger, is guilty of negligence." nal Procedure; to encourage the improvement of steam propulsion on the Champlain canal; for the relief of The New Jersey Law Journal gives the following Babette Stemmler; for the relief of George W. Mor- midsummer Law in Verse, reporting the case of Kuhn ton; requiring banks and banking associations to V. Jewett: redeem and retire their circulating notes; relating to the title to personal property; to exempt Sullivan

The shades of night were falling fast,

As o'er the Erie railroad passed county in reference to the appointment of poor-house

A locomotive, laden down keepers; relating to the election of certain school offi

With crude petroleum near the town cers in certain school districts; relative to the incorpo

Of Paterson. ration of villages; of distraining cattle and other

A piercing shriek, a blinding flash, chattels; to transfer the duties of the bonding com

And then an instantaneous crashmissioners of Poughkeepsie; relating to rural ceme

Two trains collided - down the banks tery associations; to incorporate the “Empire Yacht

The oil was emptied from the tanks Club;" for the relief of Isaac Piser; to incorporate

Immediately. the Grand Lodge Knights of Honor; relating to the

The oil igniting, sparkling, flowed M, E. Church Home in the city of New York; for the

Down the embankment, across the road, election of a messenger for the common council of

Into a bubbling brook that pours

Its waters on the fertile shores Brooklyn; relating to macadamizing the highways in

of the Passaic. the village of Piermont; relating to the protection of

The barn of the complainant stood female employees in the cities of New York and

Beside this unheroic flood, Brooklyn; relating to arrears of rents and charges for

And thus the floating flames of fire Croton water in the city of New York; relating to

Consumed it and produced a dire marshals in the city of New York; to abolish the office

Calamity. of railroad commissioner in any town; relating to the

His honor, the Vice-Chancellor says laying out of public roads; in relation to the State

That if a devastating blaze Board of Audit, and to define its powers; amending

Is negligently started, still an act to provide for the incorporation of bridge com

The defendant is responsible panies; to legalize certain proceedings of the common

In damages,

If no obstructions intervene, council of New York city; amending the charter of

As a new agency, between the city of Yonkers; the Code of Criminal Procedure;

The cause and its effect as here; repealing certain acts and parts of acts relating to the

This rule is singularly clear city of New York.

And logical.

The Albany Law Journal.

IN

Wood in criminal relations with the prisoner's wife.
The examining magistrate received Mrs. Briggs'

testimony, against objection, in which, we believe, ALBANY, JULY 31, 1880.

she denies any criminality. By chapter 182 of Laws

of 1876, it was provided that “in all criminal CURRENT TOPICS.

trials, and examinations before trial, a husband or

wife may be examined as a witness on behalf of the N connection with our article on "what consti- other, but upon no such trial or examination shall tutes a majority of electors," our attention is

a husband or wife be compelled to testify against called to People ex rel. Furman v. Clute, 50 N. Y.

the other.” There is no doubt that previous to this 461, and it is said this "seems to show that the law

statute the wife would have been wholly incompein New York is at variance with the conclusions of tent as a witness. In fact, this was so held in the article." We cannot see that that case is in the

Wilke v. People, 53 N. Y. 525. Under the present slightest degree in point. This case turned on the statute she cannot be competent against the husband point of votes cast for a disqualified candidate, and unless inferentially, by the omission to enact that it was held that if a majority of the electors vote

she shall not testify against him if she desires so to for a disqualified candidate, through ignorance of do. On this point Mr. Moak argued as follows: law or fact, the next highest candidate is not

“ Before this section the wife was not a competent elected, but the election is a failure. It is true that witness against, or for, her husband. It required the court say, that those voters who “are absent

an affirmative provision, making her competent on from the polls, in theory and practical result are

either side, to make her so. This section affirmaassumed to assent to the action of those who go to tively declares she shall be for her husband, and the polls; and those who go to the polls and do not then proceeds negatively to say she shall not be vote for any candidate for an office are bound by compelled to testify against him. There is no the result of the action of those who do; and those affirmative declaration that she may. A mere negawho go to the polls and vote for an office, if for tive provision that she shall not be compelled to be, any valid reason their votes are as if no votes, they certainly is not an affirmative provision that she also are bound by the result of the action of those

may be. When the act of 1876 was passed, no one whose votes are valid and of effect.” But this does

would have claimed, that under any circumstances, not reach the subject of our discussion, which is she was competent against her husband. If not this: If at the same election A is running for one

competent she could not be allowed to be sworn office and B for another, and A has a majority of against him. Suppose the Legislature had simply the votes cast for his office, but not of the votes passed an act in the words of the last part of the cast for both offices, is A elected?

section, “upon no such trial or examination (crim

inal trials and examinations before trial) shall a husWe have received and read the arguments of band or wife be compelled to testify against the Messrs. Harris, Hill and Miller, in favor of the valid-other,” would it have been any thing more than a ity of the Indiana constitutional amendments. They declaration of part of the law, as it then existed, are able arguments; but we do not agree to the that a husband or wife should not be compelled to statement that “the Supreme Court of the United testify against the other? It would have removed States has settled the question already," as that

no existing incompetency. It would have given or decision was in the case of a special election. We conferred no competency.” “It would be a novel have also read the dissenting opinions of Niblack proposition that the competency of a witness, as a and Scott, JJ. They are able productions. We

witness against another party, should depend upon have also read many columns of abuse in the Indi

the willingness of the witness to testify without the ana newspapers (of one political party) of the slightest power on the part of either party, of the majority of the court. These are not able produc

court or of the law, to interfere or to have a word tions. We can consent, on satisfactory evidence,

to say on the subject. I have never heard, and I to believe that judges have gone wrong in a given venture the assertion your honor never has, of a case, but we cannot consent to believe, on no evi-wife or husband being called against the other.” dence at all, that they have made knaves as well as

We are inclined to agree with Mr. Moak, and to fools of themselves for political ends. In this case,

believe that it requires an affirmative statutory if the majority of the court have erred, as we are

declaration to qualify a wife to testify against her inclined to believe they have, they have the courts

husband, even if she is willing, just as much as to of Illinois, Minnesota and Missouri on their side, qualify her to testify in his favor. and Mr. Justice Bradley. We await the appearance of the majority opinion with curiosity.

The question, “can an assignee for creditors set

aside his assignor's fraudulent assignment ?” (see An interesting question of the competency of a ante, 60), was recently answered in the negative, in wife, to testify against her husband in a criminal Pillsbury v. Kingon, 31 N. J. Eq. 619. An appeal proceeding, has arisen in the case of Briggs, under has been taken to the ultimate court. This decision arrest for the homicide of Wood. It will be re- does not involve any statute like ours of 1858, but membered that the prisoner claims to have detected the court, citing Burrill on Assignments, remark

VOL. 22.-- No. 5.

IN

*

that our statute “expressly invested assignees with

NOTES OF CASES. this power.” The opinion shows that there has been a good deal of diversity on the general ques- N State v. Hoyt, 46 Conn. 330, it was held that tion.

standard medical works on insanity may be read Lord Justice Bramwell has written a strong letter

to the jury by the counsel for the accused, on the condemning the bill pending in Parliament propos- question of his insanity. The court said: “The ing to make masters liable to servants for injuries plea of insanity interposed in behalf of persons inby fellow-servants in the course of the same employ- dicted is supported by the testimony of persons who ment. We have several times expressed ourselves by study of books and men have entitled themagainst this. See 17 Alb. L. J. 358; 19 id. 505. selves to speak as experts in that science. By way Lord Bramwell says: “I have shown that

of vindication of their right to be heard as instructit is not a natural right that the master should be ors of the jury, they usually preface their testimony liable, nor any thing that exists in the nature of by a statement of the extent of their experience in things. That it is reasonable a railway company the treatment of persons afflicted with disease of should be liable to a passenger for the negligence of the mind and the time given to the reading of treaits servants, because it has so contracted; and that tises upon insanity written by men of wide experiit should not be to one of its own servants, because ence and acknowledged ability in the treatment of it has not so contracted. We are to start afresh, such diseases; their opinion is the result of observathen, and make a new rule. Why? Why if I have tion of men and reading of books. And in this two servants, A. and B., and A. injures B. and B. jurisdiction for a long series of years counsel have injures A. by negligence, should I be liable to both been permitted to read to the jury, as a part of their when, if each had injured himself, I should not be argument upon this part of their case, extracts from to either ? There can be but one reason for it- such treatises as by the testimony of experts have viz.: that, on the whole, looking at the interest of been accepted by the profession as authority upon the public, the master, and the servants, it would that subject; such treatises as have helped to form be a better state of things than exists at present. the opinion expressed by the expert. The practice Is that so ?” This he answers in the negative. As by repetition has hardened into a rule; a rule, upon the servant may now contract that the master shall

the continued existence of which counsel for the be liable, so under the new law he might contract accused in the case before us had a right to rely; that he should not be liable, and for say sixpence a the abrogation of which by the ruling complained day difference of wages, he would so contract. “The of may have been a surprise. The question is not, great employers of labor will understand the change shall such reading be now for the first time perin the law and guard against it. The mischief and mitted; it is, shall it now for the first time be forwrong will be in the case of men, who, not knowing bidden without notice. We think that privileges of the change, will go on paying the wages which hitherto granted to persons in like circumstances include the compensation for risk, the premium of with the accused should not be denied to him, to insurance, and yet find they have to pay compensa- his possible prejudice.” Three judges concurred tion when the risk happens, and that they are in- in this opinion, but two others dissented in a caresurers though they have not received the premium,” | ful opinion. The dissent is authorized by CommonHis lordship concludes that change would do the wealth v. Wilson, 1 Gray, 338; Asworth v. Kittridge, workman no good except in this last class of cases.

12 Cush. 193; Commonwealth v. Sturtevant, 117 Mass. Admitting that it might make the master more care- 122; S. C., 19 Am. Rep. 401; Collier v. Simpson, ful in selecting servants, he denies that this is a suf- 5 C. & P. 73; Ordway v. Haynes, 50 N. H. 159; ficient consideration for the enormous increase of People v. Anderson, 44 Cal. 65; Carter v. State, 2 risk. He might add that the master is already lia- Cart. 617; Gale v. Rector, 5 Bradw. 484; Harris v. ble for carelessness in selection, and there is there- Panama R. Co., 3 Bosw. 7. In Luning v. State, 1 fore all the less need of making him an insurer of Chand. (Wis.) 178, and Wade v. De Witt, 20 Tex. his servants' care toward one another. Finally, he 398, the admission of such evidence was held dissays: “And even if the law were made obligatory cretionary. in spite of bargains to the contrary, it would not profit the servant. Because it is certain there is a In Odd Fellows' Mutual Life Insurance Co. v. Rohnatural rate of wages, one fixed by what neither kopp, Pennsylvania Supreme Court, March 17, 1880, master nor man can control, and that if they are 8 W. N. C. 489, a policy of life insurance contained practically added to one way, they will be taken a clause that the company should not be liable if from in another. If a manufacturer's wages now the insured became so far intemperate as seriously are £10,000 in the year, and he is made to pay com- or permanently to impair his health. In an action pensation to the amount of £1,000 a year, his wages brought upon the policy, held, that evidence to show will fall to £9,000. He cannot charge more for his that deceased was an habitual drunkard prior to the produce because he has to pay more; and if he date of the policy, and that he had created an appecould, his sales would diminish, and injury be done tite which had become fixed upon him, but which to the workman in loss of work." For our own had not seriously injured his health at that date, to part we regard the proposed change as so impolitic, be followed by the testimony of experts to show unjust, and unequal, as to verge on folly.

that the amount he drank before that date together

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