thereof against the elevator. If the intention was that the writing should not affect Day Bros.' liability upon the draft, the parties used very remarkable language to express it. It may be that the plaintiff never thought of Day Bros.' liability being affected; but if this were conceded, it would only show the more clearly that the qualifying clause of the writing was not designed to refer to it. Sup. Ct. Iowa, June 10, 1884. First Nat. Bank of Decorah v. Day. Opinion by Adams, J. (19 N. W. Rep. 882.) NEW BOOKS AND NEW EDITIONS. TERRY'S ANGLO-AMERICAN LAW. Some Leading Principles of Anglo-American Law, expounded with a view to its arrangement and codification. By Henry T. Terry, Professor of Law in the University of Tokio, Japan. T. & J. W. Johnson & Co., Phila., 1884. Pp. 686. The above work is a contribution to the legal literature of the times, having for its end and aim codification. Every member of the American bar, whether advocates of codification or not, should peruse this volume, for the reason that the author does not carry him back to times of the civil law, as writers on jurisprudence generally do, but grappling our own law in its present condition, which in itself is a herculean task, he feels, to borrow one of Bishop's expressions, "for the ribs of the law." The volume closes with some suggestions on the subject of codification, which to those interested and engaged in such labor will be of particular interest. We do not entirely agree with the author's views, as we have before pointed out. The book is excellently printed and bound. REESE'S MEDICAL JURISPRUDENCE AND TOXICOLOGY. Text Book of Medical Jurisprudence and Toxicology. By John J. Reese, M. D. P. Blakiston, Son & Co., Phila., 1884. Pp. 606. This work is itended as a stepping-stone to the more voluminous and exhaustive treatises of Casper, Taylor, Beck, Wharton & Stillé, Tidy and others. The author has condensed all the essentials of the science, presenting them in an orderly, systematic and lucid manner. If some of those into whose hands the book may find its way will follow the advice therein given, the court scenes which the author so much deprecates will grow beautifully less. But experience teaches us that the medical expert will insist upon "explaining" instead of answering questions. Again, the author seems to think that if "experts were equally skilled there rarely would occur any conflict of opinion between the opposite sides, since both are equally desirous of discovering and testifying to the truth, and truth is always undivided." This reads well, but the records of cases in which it has been necessary to call in "experts" show that no matter who the experts are, whether professors or doctors, they still are men, interested in and swearing for the side which employs them. If the work which is so faithfully done encourages an in terest in the subject of Forensic Medicine the author's hopes will be realized, and his labors will not have been in vain. The printing is excellently done. NOTES. "AFFIRMED." Addison Brown of Lefort, But great his belief in the same, Said his sometime attorney (De Graw Was the legal gentleman's name), "The action (at least) will not lie, (For he owed his old client a grudge), And the only thing he will try Is the patience of jury and judge." The plaintiff opened his case: "Here is a French adage," he said, "I cannot refer to the place, But the same I am sure you have read. Which holds out a man who appears For himself on his own brains reliant, Regardless of jibes and of jeers, Has always a fool for a client." We said that he did not agree With this sentiment, plainty untrue, And thought himself perfectly “free To assert that neither do you." "Opinion by the full Bench For the county and town of Lefort; A lawyer writes us from Minneapolis: "I do not know whether you care to hear from youngsters, but will take the liberty of expressing the pleasure, ever increasing, which the advent of the JOURNAL affords me each week. From the LAW JOURNAL I glean my legal lore quite as much as I ever did from Blackstone or Kent or Parsons or Story, and the friendliest face of all I met when I came to Minnesota from New York was the old familiar one of your periodical. Infant that I still am (not in the legal sense), I save the best for the last, and commence my perusal of the paper with the "Notes of Cases," to wind up with "Current Topics;" and to thank you for the enjoyment to be derived from the latter is my object in writing. They form the greenest of oases in the limitless desert stretching out before a clientless counsellor in a strange land. May your right hand never grow weary-or are you lefthanded?" Such a discerning young lawyer will not be briefless very long.-The American Law Register for October contains a leading article on Possession by Husband and Wife, by David Stewart; and the following cases in full: Whalley v. Lancashire, etc., Ry Co. (Eng.), on obstruction of surface water by railway embankments, with note by Edmund H. Bennett: Gleason v. Gleason (Neb.), on divorce for cruelty, with note by W. W. Thornton; Hoffman v. Brooks (Cincinnati Supr. Ct.), on pooling contracts, with note by Elisha Greenhood; Hoverson v. Noker (Wis.), on father's liability for torts of minor child, with note by Marshall D. Ewell. -Chief Justice Jackson, of Georgia, affords us the following in 70 Ga.: "Unfortunately for the Dahlonega company however it dealt with the Battle Branch Company as a corporation repeatedly, in respect to the waters of this very ditch, it actually obtained its permission to use those waters; it did use those waters under that permission for years; it dealt with its attorneys, its presidents, its superintendents and managers, as attorneys, presidents, superintendents and managers of a corporation known and recognized by it as the Etowah and Battle Branch Hydraulic Hose Mining Company. It called it by the name, the long name, the very remarkable and distinguished name, by which it was clearly distinguishable from all the world of creatures, corporeal and incorporeal, and which it had received by baptism at the christening fount of the General Assembly of the State of Georgia. Surely such a recognition of the infant by name; such a dandling and handling it; such billing and cooing with it; such reception of gifts and favors from it; such drinking the water of the child's ditch by permission of the little creature, must estop in all courts, both of law and equity, the recipient of such favors from denying the existencethe breath in the body of the being with whom it thus dealt so long, and from whom it received (much of it without money and without price, too) so many favors." The Albany Law Journal. ALBANY, NOVEMBER 22, 1884. CURRENT TOPICS. T is a good to refer once in a an one of those who never have got over John Brown's invasion, and who are never done with dwelling on its wickedness. We seldom allow ourselves even to whisper any thing about politics, but we would whisper to ex-Justice Campbell that John Brown's invasion can be defended by the same reasoning upon which secession is defended, and upon which alone it can be defended, namely, that it was an at I cient instances of judicial despotism, hire to roar tempt at revolution, justifiable by success, reprehen and warning. The lawyers of this State ought never to forget Judge Davis' fining the counsel for contempt in the Tweed case, which was one of the greatest judicial outrages ever perpetrated. We are glad to see so temperate and intelligent a critic as the London Law Times taking this view of it. In a recent review of Mr. David Dudley Field's works, that periodical says: "There is only one other portion of the work which is of deep interest, and that is to be found in the remarks upon Judge Davis and the Contempt Proceedings.' The history of this case is such as to make us feel with more than usual strength, the value of the traditional dignity and honor of the English Bench and of the integrity and courage of the English Bar. The brief summary of the facts, is that Judge Davis twice 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 protest that Judge Davis ought not to try the case. This protest, after consultation with his brother judges, he treated as a contempt, and his address to the counsel in contempt was received with applause by the junior bar, which as usual, had crowded the court. We can only say that if the law allowed such a thing in England, the honor of the judges would prevent the law from being followed, and we trust the day is far distant when such an address as was delivered by Judge Davis would be received with acclamation by any member of either branch of the profession. Note well, that Judge Davis' monstrous tyranny was the fruit of consultation with his brethern. The conclusion is, that his victims 'were the only men who emerged from this disgraceful scene without a blemished reputation, and that Englishmen may be pardoned if they do not yet see the necessity of Americanizing their judicial system." The Report of the Sixth Annual Meeting of the Alabama State Bar Association, in August last, contains some interesting papers, notably one upon Limitations upon the. Quarantine Power, by Mr. Harry Pillans; one on the moral Responsibility of the Legal Profession for the Administration of Public Justice, by D. S. Troy; two on the Administration of Criminal Law, by Mr. Daniel Coleman and Mr. H. D. Clayton, Jr., respectively; and one by Mr. R. W. Walker, on Separate Courts of Chancery. The address by Mr. John A. Campbell, formerly an associate justice of the United States Supreme Court, is of a tone that indicates that its author has not learned so much of our political affairs in the last twenty yeas as many of his brethern have learned. He is VOL. 30 No. 21. sible for failure. But what good is there in dwelling on these things? The reason for secession has disappeared, and we suppose there are few secessionists who would care to see it restored. It is all well enough for southern soldiers, assembling on solemn or festal occasions, to mourn over the "lost cause. So much is permitted to those who so bravely and persistently fought for what they honestly thought right. We can even tolerate it in politicians and stump-orators. But it is a very improper text for an assembly of lawyers. We deprecate the spirit of this address. A man who can exclaim, "who shall deliver us from the body of this death?" and aver that "only when the United States invaded the States was there war and the calamities of war," is not only dwelling in the past, but has forgotten the past. It was quite a serious omission of attention to our distinguished guest, Lord Chief Justice Coleridge, not to take him out west, and treat him to a stagecoach robbery, compelling him to hold up his hands while the founders of our breezy western civilization put their hands in his pockets. We treat our own chief justices better. Thus, Chief Justice Wade, of Montana, was recently subjected to one of these visitations, and required to hold up his hands, although not for the avowed purpose of swearing. He writes a very amusing account of the incident to a friend, which was published in the Cleveland Leader. The result of the affair is thus described: "How anxious we were to give up our money, and watches and have the entertainment over. It is amazing how very liberal we all became. We were just aching to give up our valuables. We waited patiently to be killed if that was in the programme (we had no bills showing the acts and scenes), and after waiting for what seemed about nine years, but in fact perhaps ten minutes, one of the masked fellows, who seemed to be in command, and who stood like a statue, said: 'Get into the coach. Be quick about it. Don't look back, and drive like hell.' Some of us hesitated about getting into the coach before we had been robbed. We thought we were entitled to have the regulation programme carried out in full. But a motion from one of the maskers with his gun persuaded us to obey the order, and we got on board, and the driver put the horses to such speed, that I began to think the terrors of road-agents were more endurable than those of a driver attempting to obey such an order. A moment after we started we heard the report of eight or ten guns, crack! crack! and we supposed a load of passengers by another conveyance had been fired into. The firing came about in this way. The sheriff of an adjoining county and another man in a buggy were coming to court, and the sheriff, who had a Winchester with him, discovered one of our masked men behind a rock, and sprang from his buggy and demanded of him what he was doing there, whereupon a bullet went tearing through the sheriff's coat from another direction, but he stood his ground like a rock and returned the fire, and thinks he killed or wounded one or more of his assailants. We came on to town not more than six miles away, and the sheriff of this county and the other sheriff with a company of armed men immediately started in pursuit of the ruffians, but have not yet captured them. If they succeed I shall have the pleasure of sending them to the penitentiary." It was hardly necessary for the chief justice to explain that the purpose of the attack was not robbery, but the rescue of some criminals supposed to be on board. Nobody would dream of attacking a chief justice for the purpose of robbery. bring out the fact that pictures might be either decent or indecent, and that the canons of pure art would accept those of one class and reject those of the other, was properly rejected as an attempt to prove a self-evident proposition. If the question was intended to be followed by proof, that according to the standard of judgment adopted and recognized by artists, the photographs in question were not obscene or indecent, it was properly rejected for the reason that the issue was not whether in the opinion of witnesses, or of a class of people, the photographs were indecent or obscene, but whether they were so in fact, and upon this issue witnesses could neither be permitted to give their own opinions, nor to state the aggregate opinion of a particular class or part of the community. To permit such evidence would put the witness in the place of the jury, and the latter would have no function to discharge." NOTES OF CASES. N [N Barrett v. Hart, 41 Ohio St. 41, it was held that a chattel mortgagee authorized to take possession of the goods whenever "he shall deem himself in danger," etc., may take possession when in good faith, and upon facts arising after the making of the mortgage he deems himself in such danger. The court said: "The facts of dan The decision of a very curious question of expert evidence will be reported in People v. Muller, 96 N. Y. 408. It was there held that on the trial of an indictment for selling obscene photographs, opinions of artistic experts on the question of obscenity are incompetent. The photographs were from pictures exhibited in the Salon in Paris and at the Centennial exhibition in Philadelphia; among oth-ger are not made the condition, but that Hart shall ers, "La Asphyxie," "After the Bath," and "La Baigneuse." Andrews, J., observed: "It does not require an expert in art or literature to determine whether a picture is obscene or whether printed words are offensive to decency and good morals. These are matters which fall within the range of ordinary intelligence, and a jury does not require to be informed by an expert before pronouncing upon them. It is evident that mere nudity in painting or sculpture is not obscenity. Some of the great works in painting and sculpture, as all know, represent nude human forms. It is a false delicacy and mere prudery which would condemn and banish from sight all such objects as obscene, simply on account of their nudity. If the test of obscenity or indecency in a picture or statue is its capability of suggesting impure thoughts, then indeed all such representations might be considered as indecent or obscene. The presence of a woman of the purest character and of the most modest behavior and bearing may suggest to a prurient imagination images of lust and arouse impure desires, and so may a picture or statue not in fact indecent or obscene. deem himself in danger. To fulfill this condition Hart cannot simply say he so thinks, nor can he act from malice or caprice. Still the state of his mind as to his danger of loss is the determining fact agreed upon to decide whether or not he has a right to take possession. The mortgagee is made the judge, his mind is to be moved to a certain state, his judgment is to arrive at a certain conclusion, and his mind must be moved by factsnot opinions on questions of law-and the facts must be those arising after the giving of the mortgage. The mortgagor trusts the mind of the mortgagee, such as that mind is, whether that be active, clear, strong and correct, or dull, weak and nearly certain to go wrong. And being thus trusted the mortgagee must act in good faith, and when he thus acts and 'deems himself in danger of losing said debt, or any part thereof by delaying the collection thereof, until the expiration of the time above limited for the payment thereof,' he may take possession of the property in accordance with the terms of the mortgage. The facts of danger alone cannot determine the breach of this condition. To a judge or jury on the trial such facts may show only apparent and not real danger, and yet the mortgagee deem and know the danger real; or to such judge or jury the facts may show real danger, and the mortgagee deem and know the danger only apparent. The true standard must be whether or not the mortgagee, acting in good faith at the time, deems himself in danger. And the 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 Ill. 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, by 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, 1 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 Ex60; S. 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 sup., and previous to that case there is an unbroken chain of authorities in favor of the decision In Baines v. Toy, Q. B. Div., July, 1884, 51 L. T. Rep. (N. S.) 292, an action for necessaries supplied to an infant, it appeared that the infant was already sufficiently supplied, but that fact was not known to the plaintiff. Held, that that fact should have been submitted to the jury. By Field and Lopes, JJ., Manisty, J., doubting, but not dissenting, following Foster v. Redgrave, L. R., 4 Ex. 35, n.; Brayshaw v. Eaton, 7 Scott, 183; and not following Ryder v. Wombwell, L. R., 3 Ex. 90. Lopes, J., said: "If it had not been for what has been said by my brother Manisty I should have said that I take a very strong view of this case, and have expressed the opinion that the learned judge had misdirected the jury. I do not propose to go through the cases that have been cited to show that the direction was wrong A contract by an infant for goods cannot be enforced unless the articles be necessaries, the policy of the law being to protect the infant. In point of fact a tradesman dealing with an infant does so at his own peril, and he must lose his money unless he can prove that the goods supplied were necessaries for the infant, according to his station in life. That being the law, we come to the question what are necessaries. To determine this question we must take into account what the infant had at the time of the order; for example, a watch may be prima facie a necessary, but if the infant were supplied with other watches then it would cease to be a necessary. It is admitted in this case that regard must be had to the supply the infant had at the time of the order if the plaintiffs knew at that time that the infant was amply supplied; but it is contended on behalf of the plaintiffs that this is not so if the plaintiffs did not know of the previous supply. If this were so the protection given to the infant would depend entirely on what might be the state of knowledge of the tradesman, which would in effect deprive the infant of the protection intended by the law. I think it is immaterial whether the plaintiffs did or did not know of the supply; it is immaterial even whether they knew or did not know that the defendant was a minor. The learned judge ought to have admitted the evidence, and the question ought to have been left to the jury whether the articles were necessaries, and if so, did they cease to be so we now arrive at." In Commonwealth v. Pomphret, Massachusetts Supreme Court, Oct., 1884, that the furnishing of spirituous liquors by a club to its members by the glass is not a "selling" within the statute. The court said the legislature "has not undertaken to pro hibit the drinking or buying of intoxicating liquor, or the distribution of it in severalty among persons who own it in common. If therefore two or more persons unite in buying intoxicating liquor, and then distribute it among themselves, they do not violate the statute, and the intent with which they do this is immaterial. If they intend in this manner to obtain intoxicating liquor to drink, without thereby subjecting any person to the penalties of the statute, they still act with impunity, because what they do, is not prohibited by the statute. The word 'club' has no very definite meaning. Clubs are formed for all sorts of purposes, and there is no uniformity in their constitutions and rules. well known that clubs exist which limit the number of the members and select them with great care, which own considerable property in common, and in which the furnishing of food and drink to the members for money, is but one of many conveniences which the members enjoy. If a club were really formed solely or mainly for the purpose of furnishing intoxicating liquors to its members, and any person could become a member by purchasing tick It is ets which would entitle the holder to receive such intoxicating liquors as he called for, upon a valuation determined by the club, the organization itself might show that it was the intention to sell intoxicating liquors to any person who offered to buy, and the sale of what might be called a temporary membership in the club with a sale of the liquors, would not substantially change the character of the transaction. One inquiry always is, whether the organization is bona fide a club with limited membership into which admission cannot be obtained by any person at his pleasure, and in which the property is actually owned in common with the mutual rights and obligations which belong to such common ownership under the constitution and rules of the club; or whether either the form of a club has been adopted for other purposes, with the intention and understanding that the mutual rights and obligations of the members shall not be such as the organization purports to create, or a mere name has been assumed without any real organization behind it. The decisions of other courts which [are pertinent undoubtedly turn more or less upon the particular language of the statute construed. Graff v. Davis, 8 Q. B. D. 375; Seim v. State, 55 Md. 567; S. C., 39 Am. Rep. 419; Rickart v. People, 79 Ill. 85; Marmont v. State, 48 Ind. 21; State v. Mercer, 32 Iowa, 405; Martin v. State, 59 Ala. 34. ** * The ruling and instruction in this case seems to us to assume that this was bona fide a club; that the liquors were owned in common by the members, and that they were kept by the defendant as one of the members and as steward of the association. On the assumptions upon which we understand the instructions proceed, we think that under the decision in Commonwealth v. Smith, 102 Mass. 144, it was not competent for the jury to find the defendant guilty." See Tennessee Club of Memphis v. Dwyer, 11 Lea, 452; S. C., 47 Am. Rep. 298. NEILSON'S MEMORIES OF RUFUS CHOATE. THIS HIS work is not a mere biography. The author having in mind, it would seem, that others Mr. Parker, Mr. Whipple, Professor Brown, and the present editor of this journal - had written of Mr. Choate, turns aside somewhat and pursues a pathway of his own. In this he was wise, and with his facile and original modes of treatment the special traits and peculiarities of Mr. Choate, his studies, services, devotion and self-sacrifice become, as it were, articulate, and must satisfy the curiosity, and excite the admiration of the reader. Thus, "Out of the old fields cometh all this new corn." The book is dedicated to the memory of Isaac Grant Thompson, the former editor of this journal. This was becoming and appropriate. It was in deference to his wishes that in 1877-8 Judge Neilson contributed to the JOURNAL a series of papers in respect to Mr. Choate, parts of which are reproduced in this volume. In recalling and collecting these memories of Mr. Choate Judge Neilson was indulging the hope "that facts and incidents, resting in the silent memories of his friends, might be called out and preserved." He had more than twenty contributors, of whom he says: "The writers, whose contributions are now published, held various relations to Mr. Choate his associates in the college, his students in the law office, his professional brethren, his friends - those friends who were with him in hours of joy and of sorrow, and those who saw and heard him occasionally, and knew him in the supreme felicity and attraction of his genius and character. * * With the loyalty of disciples, and the faithfulness due to a trust, they give delineations of Mr. Choate, The poetical, the practical, the loyal, the reverential traits of his character, as revealed at home and abroad, are set forth with freedom and fidelity." The author had a just estimate of these contribuWe would fain linger over these pages, refer to the wealth of fact, incident and anecdote, and to the spirit and tone, the grace and simplicity of style, so worthy of the subject and of these writers. But we have in mind certain topics to which we wish to pay some attention. tors. In the first chapter the author considers two popular fallacies. The first imputed want of moral tone to lawyers who were willing to defend persons apparently guilty of crime; the second imputed to Mr. Choate the practice of using his powers of persuasion to prevent the due administration of criminal law. These fallacies are exposed, and the arguments drawn from social, ethical and historical sources, are full and conclusive. We have always thought that Mr. Choate was one of the greatest advocates, and the best of men. We believe with Judge Neilson that "no one has suggested that he ever practiced any artifice or evasion to enable the guilty to escape;" and that "to no one was the pure, inflexible, benign administration of the law more dear than to Mr. Choate." Soon after persons on trial for capital offenses in the English courts were allowed the benefit of counsel, a question arose as to the lawyer's duty and privilege; and from the time of Erskine to the present the rule that they could not withhold their aid in the defense of criminal cases has been generally respected. The question took a peculiar form as to the case of Professor Webster, indicted for the murder of Doctor Parkman. It appears that the friends of the professor, including some distinguished professional men in Boston, believing that he was innocent, and that if Mr. Choate acted for him he might be saved, urged him to undertake the defense. But they had one theory, Mr. Choate had another, and as neither would yield he did not go into the case. Their theory was set up on the trial and failed, as Mr. Choate had foreseen that it would fail. His view of the duty and privilege of counsel, as deduced from that case by the author, was correct, and should be followed by others who are called upon to defend the accused: "While accepting the theory that in a criminal case a lawyer is not at liberty to withhold his services absolutely, Mr. Choate did not think him bound to go into court contrary to his own convictions, and assert what he did not believe to be true, or take a line of defense which he considered untenable." As to one literary habit Mr. Choate and Daniel Webster are contrasted. As speakers they each had a style as rich and ornate as was consistent with severe thought or argument. But they dif fered in their final disposition of rhetorical ornaments. Mr. Choate let his stand with his other |