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ment of the writer: "Law-givers, philosophers and theologians have for ages assumed that men are responsible beings, and the combined experience of many centuries is far weightier than the speculations of visionary theorists. But as we have seen, the assumption is supported by the closest analogies and strongest reasons. Its denial involves the affirmation that organized society is impossible, and this is nihilism in its worst form. There are however degrees of responsibility; some persons are less responsible than others. On this point we nearly always err, for we almost invariably place the heavier responsibility on the wrong person. If a lad born of good parents, and who moves among the refined and educated, commits a theft, we feel that his punishment should be light, but if a child born of wicked parents, and who belongs in the ranks of the degraded, commits a like offense, we feel that he should be severely punished. This judgment is radically wrong. strict justice it is the well-born lad who deserves the severest punishment, and not the ill-born, whose inherited tendencies, and whose surroundings have exerted such a fearful influence upon his mental and moral nature. Environment is, I know, a term often made to stand for much and mean little, but it possesses an important meaning, and conveys a material thought when used as descriptive of the influences under which children are born and reared. The child reared among thieves and harlots and brutal men is surrounded by fateful influences that would be very likely to drive into crime a child born of the purest and best parents. The malignant influences that surround the young who dwell with vicious women and brutish men are so powerful that it is a marvel that any one ever escapes from their fell power. Better a thousand fold than all the criminal codes that man ever did or ever can devise, would be a pian that should take the young from these dark places and evil associations, and place them in a brighter and purer region. More potent than the law of environment is the dreadful and unbending one of heredity. The laws of heredity and environment, powerful as they are, do no more than implant in the individual tendencies and propensities; they are not laws of action; they do not compel a person to do wrong; they simply incline him to a life of evil. They are not supreme laws; above them are the conscience, the judgment and the will. No sane man was ever driven into crime by the laws of heredity and environment. As Dr. Elam says: 'And herein consists man's responsibility, and the very possibility of virtue, that whilst the brute acts strictly according to his organization, man equally urged by his, may act according to a higher law, i. e., a moral law. Every sane man is responsible for his voluntary acts, whatever may be the moving impulse. Sin and crime are always sin and crime, whatever the constitutional tendency.' * * * Society too often disregards these potent laws of heredity and environment, and thrusts young offenders into confinement
* * *
with men hardened in crime; men whose glory is their wickedness; and by the evil associations thrown around these novices in evil-doing have their inborn propensities festered into settled wickedness, and reformation becomes impossible. The wrong is a cruel one, in most instances an awful crime. It is a fierce enough battle for the young offender to fight the inherited impulses, strengthened as they most often are by his environments, without having his enemies re-enforced by the teachings and influences of the inmates of the prison disgraced beyond the hope of reclamation; and society does a cruel thing in supplying the re-enforcements that conquer the already hard pressed and far-spent combatant. Not only do the evil associations strengthen the wicked propensities, but the disgrace destroys all hope. There are many prison doors over which might be written the memorable words of Dante: 'Abandon hope all ye who enter here.' It may cost money to change our system of dealing with the young in crime, but shall an enlightened people weigh money against souls? It may be a slow and toilsome work, the repose of society may somewhat suffer, but in the end the gain will be infinitely greater than any loss, and will many times repay the work and time bestowed. There may be disheartening failures, but success will be attained at last, and in such fair measure that no one will doubt that the end crowns all. take measures to reform those in whom there is hope of reformation is to lay the axe to the root. To take the children of the bad from evil influences is to check the polluted stream that breeds criminals as foul waters breed slimy things. That society has a right to do this there can be no doubt; that it is the duty of society to do it is not uncertain."
NOTES OF CASES.
IN Huntley v. Baker, 33 Hun, 578, a judgment by
default was entered against the defendant in the Municipal Court of Dane county, Wisconsin. He was at that time domiciled in that State, but was absent therefrom. The summons was not personally served upon him, but was left at his residence in the presence of his wife. This mode of service, and the proceedings in the Municipal Court were regular and valid according to the laws of that State. Held, that the judgment was valid, and that an action might be maintained thereon in this State. The court, Bradley, J., said: "The courts of any State or country can have no extraterritorial jurisdiction so as to give notice, serve process, or charge persons or property beyond their respective boundaries. And when thus unable to acquire jurisdiction of the person against whom legal proceedings are by statute authorized, and nominally taken without actual service on him, the proceeding can be treated as in rem only in respect to property within the jurisdiction. But it has been repeatedly held in England that this doctrine is not applicable when the person so sought to be
charged by judgment is a subject or citizen of the country where and at the time the proceedings are taken, and when they are in conformity to the statute there, although the person be then absent from the country, and that is put upon the ground that the person domiciled there owes allegiance to the country and submission to its laws. Douglas v. Forrest, 4 Bing. 686; Becquet v. McCarthy, 2 Barn. & Adol. 951; Bank of Australasia v. Nias, 16 Q. B. (Ad. & Ell.) 717; Same v. Harding, 9 C. B. (M. G. & S.) 661; Vallee v. Dumergue, 4 Exch. 290; Meeus v. Thellusson, 8 id. 638; Copin v. Adamson, L. R., 9 id. 345; S. C., 10 Moak, 492. And therefore a judgment may in such case be rendered against and charge a defendant in personam, without any personal service upon or actual notice to him, and in his absence from the country. There are only a few reported cases in this country where that proposition has been considered. In the United States Supreme Court a question somewhat analogous was decided in like manner as applied to the United States. Lafayette Insurance Company v. French, 18 How. 404; approved in St. Clair v. Cox, 106 U. S. 356; Pennoyer v. Neff, 95 id. 714, 722, 734, 735. And in this State this proposition is stated, and the English cases cited with apparent approval. Gibbs V. Queen Insurance Company, 63 N. Y. 114, 126; Hunt v. Hunt, 72 id. 218, 238; S. C., 28 Am. Rep. 129; Cassidy v. Leetch, 53 How. Pr. 108, 109. Without stating the principle more at length it may be assumed that by reason of the relation between the State and its citizen, which affords protection to him and his property, and imposes upon him duties as such, he may be charged by judgment in personam, binding on him everywhere as the result of legal proceedings instituted and carried on in conformity to the statute of the State, scribing a method of service which is not personal, and which in fact may not become actual notice to him. And this may be accomplished in his lawful absence from the State."
expressed. A false pretense is defined to be 'representation of some fact or circumstance calculated to mislead, which is not true.' Commonwealth v. Drew, 19 Pick. 179. What is said to be a fuller and practically better definition is the following: 'A false pretense is such a fraudulent representation of an existing or past fact by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value.' 2 Bish. Cr. Law, § 415. In Reg. v. Evans, 8 Cox C. C. 257, note to Bish. Cr. Law, 235, it is said: 'Had the prisoner represented the note to be of five pounds value, when she knew it was not of that value, and the jury had found the false pretense, and that the note was of less value than five pounds to her knowledge, it would have been sufficient to sustain a verdict of guilty. In Commonwealth v. Stone, 4 Metc. 43, the Supreme Court of Massachusetts held that the passing of a bill of a broken bank at its nominal value by one who represents it to be of such value, yet knows it to be nearly if not quite worthless, is an indictable pretense under the statute, although the bill may be of some value. 'A representation that a horse is sound, by one who knows it not to be true, is within the statute, and is indictable.' State v. Stanley, 64 Me. 157." To the same effect, Watson v. People, 87 N. Y. 561; S. C., 41 Am. Rep. 397. "The doctrine in the language of Russell, that the pretense need not be such an artificial device as will impose upon a man of ordinary caution is fully established, at least in the English courts. And the pretense need not be such as cannot be guarded against by common prudence.' 2 Bish. Cr. Law, § 436. 'It is substantially settled that any false representation, extending beyond mere opinion, conpre-cerning the quality, value, nature or other incident of an article offered for sale, whereby a purchaser relying on the representation is defrauded, is a violation of these statutes.' Id., § 447. 'A mere opinion is not a false pretense, but any statement of a present or past fact is, if false.' Id., § 454. There need be only one false pretense, and although several are set out in an indictment, yet if any one of them is proved, being such as truly amounts in law to false pretense, the indictment is sustained.' Id., 418. A false representation that one Conlin was a liquor dealer, doing business as such in Boston, was held to be within the statute. Commonwealth v. Stevenson, 127 Mass. 449." See also Higler v. People, 44 Mich. 299; S. C., 38 Am. Rep. 267, where the representation was of being a "storekeeper."
In People v. Jordan, Supreme Court of California, October, 1884, 18 Rep. 713 it was held that an indictment for false pretenses will lie for falsely and fraudulently representing that certain railroad bonds are of a certain market value, whereby a sum of money is obtained on the pledge thereof. The court, Morrison, C. J., said: It is true that the authorities may be somewhat conflicting, and that in many of them very nice and not entirely satisfactory distinctions are drawn between cases that are and cases that are held not to be within the statute; and as was said by Dewey, J., in Common_ wealth v. Norton, 11 Allen, 267: It may be difficult to draw a precise line of discrimination applicable to every possible contingency, and we think it safer to leave it to be fixed in each case as it may occur.' But we have found no case that holds such representations as are charged in this case not indictable. The following principles and authorities may be cited in further support of the views herein
In Farrell v. Cook, Supreme Court of Nebraska, September, 1884, 18 Rep. 727, an injunction was granted against the use and occupation of premises as a place for putting jacks and stallions to mares, in full view of plaintiff's dwelling, and to the great inconvenience and discomfort of the plaintiff and his family. The court said: "A nuisance may be defined as whatever is injurious, offensive
to the senses, indecent or an obstruction to the free use of property, so as materially to interfere with the comfortable enjoyment of life or property. Regina v. Grey, 4 Fost. & F. 73; State v. Purse, 4 McCord, 472; Nolin v. Mayor, 4 Yerg. 163; Pickard v. Collins, 23 Barb. 444-453; Hackney v. State, 8 Ind. 494; State v. Taylor, 29 id. 517; 4 Wait Act. & Def. 727. It is any thing that unlawfully worketh hurt, inconvenience or damage. 3 Bl. Com. 5, 216; 2 Bouv. Law Dict. 245; Commonwealth v. R. Co., 14 Gray, 93; Coker v. Birge, 9 Ga. 425. It is a term applied to that class of wrongs that arise from the unreasonable or unlawful use by a person of his own property, real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction of or injury to the right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt, that the law will presume a consequent damage. Wood Nuis., § 1. There must not only be a violation of a right, but an essential inconvenience, annoyance or discomfort must result therefrom. Id., § 9. A party is entitled to free use and enjoyment of his own property, but he must so use it as not to interfere with the rights of others. Enjoy your property in such a manner as not to injure that of another person, is the maxim of the law. That the plaintiff in error has violated this rule is clearly shown by the petition, and also that the defendant in error has sustained special injury by such violation. In Hayden v. Tucker, 37 Mo. 214, it was held that the keeping and standing of jacks and stallions within the immediate view of a private dwelling was a nuisance. So too the keeping of a brothel near one's dwelling. Hamilton v. Whitridge,
ties on improper comments of counsel will be found in a note in 48 Am. Rep. 336, now in press.
In Commonwealth v. Keeper of County Prison, Pennsylvania Quarter Sessions, March 28, 1884, 15 W. N. C. 282, it was held that obtaining money upon a false representation that the party obtaining it can produce the spirits of deceased persons, etc., is punishable under the statute against false pretenses. The court said: "It has been held in England, under a statute similar to our own, that a defendant falsely pretending that he had power to communicate with the spirits of deceased persons, and that he could cause such spirits to be present in a material form, and play upon musical instruments, made a pretension of existing facts, and that obtaining money on such pretenses came within the statute against false pretenses. Regina v. Lawrence, 36 L. T. (N. S.) 404; Regina v. Giles, 11 id. 643. Although the fraudulent misrepresentation of an existing fact was accompanied by an executory promise to do something at a future period, it was none the less a false pretense. Regina v. West, The lady who testified in this case paid her money on 8 Cox C. C. 12; Regina v. Jennison, 9 id. 158. the faith of the representations of the relators, which proved to be false, and thus we have a clear case of obtaining money by false pretenses." See Bowen v. State, 9 Baxt. 45; S. C., 40 Am. Rep. 71, and note, 75.
LAWRENCE'S INTERNATIONAL LAW.*
HESE essays contain a great deal of matter in
11 Md. 128. We have no doubt that the plaintiff TH
below is entitled to an injunction as prayed for in his petition." See Anderson v. Doty, 33 Hun, 160; ante, 323; Marsan v. French, 61 Tex. 173; S. C., 48 Am. Rep. 272, and note, 274.
In Simmerman v. State, Nebraska Supreme Court, Nov. 18, 1884, 21 N. W. Rep. 387, a murder case, the prisoner, being convicted, complained of misconduct of the district attorney in speaking of the plaintiff to the jury as Billy the Kid, or Jesse James sort of a cow-boy." The court said: "The plaintiff in his testimony had freely stated that he had been tending stock in New Mexico and on the plains; that he carried two revolvers and a butcherknife; and that his companion, Belmont, carried four revolvers. It is also apparent that the plaintiff displayed his weapons with something approaching braggadocio; and in fact by his conduct justified the district attorney in speaking of him in the way he did. Peaceable and law-abiding men do not find it necessary, in a peaceable community, to load themselves down with deadly weapons, and their conduct is open to criticism when they do so. There was no error therefore in using the words complained of." A very full collection of authori
teresting to Americans, and for that matter interesting to thoughtful people of all civilized countries. The first essay in the series, "Is there a True International Law," denotes the growing interest in those rules which are assumed to govern the external relations of the great powers. Modern science and commerce have done and are doing much to neutralize ancient conceptions of government, and to compel nations to adopt common principles of external action. Professor Lawrence discusses the nature of these rules, and propounds, in substance, the always interesting question, do these rules of international action respond to those conceptions of law formulated by Austin and the analytical jurists? Answering this selfpropounded question in the negative, he then seeks to show that these international rules are nevertheless entitled to be regarded as laws - not rules.
We quite agree in this conclusion, but we are not prepared to agree with Professor Lawrence that Bantham and Austin. fell into great error in their definitions of positive law. External positive law, as we prefer to call international law, is one thing and modern internal positive law is a very distinct
* Essays on Some Disputed Questions in Modern International Law. By T. J. Lawrence, M. A., L.L.M., Cambridge. Deighton, Bell & Co., 1884.
thing from the archaic institution which did duty for positive law at the epochs portrayed by Sir Henry Maine. Why not concede that the analyses of these different writers are not of universal application, but relate to different spheres? This done, the differentia of the definitions are sufficiently noted without convicting any body of error. observe that nearly all the late international lawyers and text-writers seem to think it incumbent on them to attribute the force of law to custom, and to exaggerate the importance of Sir Henry Maine's critique that Austin's definition of law fails to take into consideration very archaic societies where custom had certain concomitants of law. But this was no discovery of the greater comparative jurist. Cicero in his too little read Treatise on the Law noted the same phenomenon, * * tamen erunt fere in more maiorum qui tum ut lex valebat. (Lib. II, cap. 10, f. 20.)
Where is the necessity then of postulating that custom is law in order to build up a true international law? Custom may not be lex, and yet the law of nations may have a veritable existence. We think that it has, and that Mr. Justice Stephen and other English lawyers fail to treat it with enough deference in the positions cited by Professor Lawrence. But until the late Oxford revival English lawyers have not been strong on international law. There is a large hiatus between Selden's Mare Clausum and such writers as Westlake, Hall and Twiss, not forgetting Lord Stowell.
Positive external law of nations, as we prefer to designate that part of the code which is of universal operation, is positive law enforced by the great modern amphictyonic council. There the resemblance of the law of nations to internal positive law of a particular State stops. The shadowy border land between ethics and law is only law in posse, whether it lies in the domain of the international lawyers or in that of the municipal lawyers. It is no more law in the one case than in the other. The difficulty with Professor Lawrence - one common to most of the late writers on international law is that he overstates his case; he claims too much for the institutes of his science, and is unwilling to recognize that the law of nations is yet in embryo. In two more centuries, such as the nineteenth, the international lawyers will no doubt fill a proud place in the administration of law, for the importance of their vocations will increase with the never-ending advance of science, which goes hand in hand with commerce. But Professor Lawrence fails less in this respect than do others of his school.
The essay on the Suez canal becomes of interest here as the Isthmus canals approach completion, for it may be assumed that a canon of international jurisprudence relating to the former will some day be affirmed by the European powers, to be of universal operation. Our National embarrassment is that we have been excluded by our continental policy from aiding to formulate these canons, and will
therefore have to contend that they are not res adjudicata.
It is the paper on the Panama canal, and the Clayton-Bulwer treaty which has the most direct interest for us on this side of the water. The history of the treaty is first given from the British point of view. Then the several contentions of the signatory powers, and in the course of this discussion considerable insight into recent British criticisms of Mr. Blaine's supposed policy is afforded. The means which the author suggests for the neutralization of the canal are set out at length. Much stress is laid upon what was unquestionably Mr. Evarts' unfortunate mistake in assenting to the Egyptian law of liquidation, with the effect of permitting us to conclude that considerable, or busy lawyers, are not always the best prime ministers of a great continental power. All the author's ingenuity is brought to bear on his argument, and while it contains plenty of food for discussion we prefer not to review at the present time the various positions urged. Before long much more will be written on this subject, and then the mere spectator will be better able to draw for himself correct conclusions. One thing we do however desire to notice, and that emphatically; it is that our distinguished friend, Commander Goodrich, U. S. N., overstepped the bounds of military criticism when he touched in his late book on the propriety of the British occupation of the Suez canal. Soldiers and sailors of all nations think much alike, and are hardly authority on international law, which is founded on that rock-peace to all men.
Of all the essays in this volume we prefer that on the Work of Grotius. The setting is a good picture of Grotius' historical environment, and the reasons why his utterances were immediately potent among nations. This essay also indicates briefly, but sufficiently, the influence of the Stoic philosophy on the Roman ius gentium, and the natural confusion of ius naturale with ius gentium, an error which greatly influenced the founders of the modern law of nations. It may be thought that this paper will have only a special interest to the international lawyers, but this is erroneous. The law of nations possesses a singular interest to our own jurisprudence in New York. The struggle of feudality with the ius naturale tinges our entire colonial epoch, during which the foundations of our jurisprudence and government were laid. When a complete history of American law comes to be written the influence of the so-called "law of nature" will have to be profoundly considered, for it plays a great role in the destruction of the feudal system which our English princes at one time struggled to perpetuate among us. In short, the thinking municipal lawyer who glances observedly through this volume will find much suggested, much to ponder over in the enlarged horizon it presents to him.
The little volume is well done, well printed, and
an agreeable variation from the ponderous tomes which formerly were thought appropriate to weighty subjects. It is in such little volumes libelli they may be called that the best modern thought finds its fittest medium of expression, and they foreshadow the day when law shall be no longer a law of technicalities, but as it was in the best days of Rome, a science and a part of the complement of every gentleman's and every scholar's education. We may close our little notice of this book with the hope of its author repeated, tha: some day the evolution of juristic science will lead to perpetual peace.
J. S. Nave, B. F. Hegler, W. S. Potter and A. A. Rice, for appellants.
T. F. Davidson, for appellee.
ELLIOTT, C. J. The appellee was a warehouseman and it was his custom to receive wheat on deposit, and to place it in a common bin with wheat bought by him, and it was also his custom to sell wheat from this bin, but of this custom the appellants had no knowledge. In August, 1882, the appellant, Victoria Rice, deposited with the appellee 210 bushels of wheat: this was thrown into the common bin in accordance with the custom of the appellee, and with it was mingled wheat bought by him and wheat stored by other depositors, and from this bin wheat was sold from time to time, but there was always in the bin wheat enough to supply all depositors, and at any time before the destruction of the warehouse by an accidental fire the appellant could have received from the bin all the wheat she had deposited. Some time after the storage of the wheat the warehouse and all its contents were destroyed by fire, but the fire was not attributable to the wrong or negligence of the appellee. No demand was made for the wheat until after its destruction. The wheat was stored with the appellee, and there was no agreement that the bailor should have an option to demand the grain or its value in money. There are cases in which the bailee is responsible for the loss of goods where he commingles them with his own, but this principle does not apply where a warehouseman receives grain to be stored for the owner. Articles of such a character can be separated by measurement, and no injury results to the owner from the act of the warehouseman in mingling them with like articles of his own.
This doctrine is older at least than Lupton v. White, 15 Ves. Jr. 432, for there Lord Eldon said: "What are the cases in the old law of a mixture of corn or flour? If one man mixes his corn or flour with that of an. other, and they were of equal value, the latter must *To appear in 97 Indiana Reports.
have the given quantity; but if articles of different value are mixed, producing a third value, the aggregate of both, and through the fault of the person mixing them the other party cannot tell what was the original value of his property, he must have the whole." Chancellor Kent takes a like view of the question, and his last editor, Judge Holmes, cites a great many cases upon the subject. 2 Kent Com. (12th ed.) 365, 590. This is the view taken by the textwriters and courts generally in cases where the deposit is made with a warehouseman. Story Bail., § 40; Bis.& Sim. Law of Prod. Ex., § 152; 2 Schouler Pers. Prop. 46; 6 Am. Law Rev.457; 2 Black.Com. (Cooley's ed.) 404,
note. There is however, as shown by the cases cited, some conflict of opinion, but as said in a late work, the great weight of authority is that the contract is one of bailment, and not of sale, the warehouseman and the depositor becoming owners as tenants in common. Bis. & Sim. Law of Prod. Ex., § 154, auth. note 9. To the authorities cited by the authors referred to may be added Ledyard v. Hibbard, 48 Mich. 421; S. C., 42 Am. Rep. 474; Nelson v. Brown, 44 Iowa, 455; Sexton v. Graham, 53 id. 181: Nelson v. Brown, id. 555; Irons v. Kentner, 51 id. 88; S. C., 33 Am. Rep. 119, where the rule is carried much farther than is necessary in the present instance. The rule which we accept as the true one is required by the commercial interests of the country, and is in harmony with the cardinal principle that the intention of contracting parties is always to be given effect. It is not unknown to us, nor can it be unknown to any court, for it is a matter of great public notoriety and concern, that a vast part of the grain business of the country is conducted through the medium of elevators and warehouses, and it cannot be presumed that warehousemen in receiving grain for storage, or depositors in intrusting it to them for that purpose, intended or expected that each lot, whether of many thousand bushels or of a few hundred, should be placed in separate receptacles; on the contrary, the course of business in this great branch of commerce, made known to us as a matter of public knowledge and by the decisions of the courts of the land, leads to the presumption that both the warehouseman and the depositor intended that the grain should be placed in a common receptacle and treated as common property. This rule secures to the depositor all that in justice he can ask, namely, that his grain shall be ready for him in kind and quantity whenever he demands it. Any other rule would impede the free course of commerce, and render it practically impossible to handle our immense crops. It is reasonable to presume that the warehouseman and his depositor did not intend that the course of business should be interrupted, and that they did not intend that the almost impossible thing of keeping each lot, small or great, apart from the common mass should be done by the warehouseman. If the warehouseman is not bound to place grain in a separate place for each depositor, then the fact that he puts it in a common receptacle with grain of his own and that of other depositors, does not make him a purchaser, and if he is not a purchaser then he is a bailee. In all matters of contract the intention of the parties gives character and effect to the transaction, and in such a case as this the circumstances declare that the intention was to make a contract of bailment and not a contract of sale. The duties, rights and abilities of warehousemen are prescribed by the law as declared by the courts and the Legislature, and as matter of law it is known to us that a warehouseman, by placing grain received from a depositor in a common receptacle, and treating it as the usages of trade warrant, does not become the buyer of the grain, unless indeed there is some stipulation in the contract imposing that character upon him.