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the need of business men. Exceptional cases must mark. A similar disposition was made for the shift for themselves."
creation for a court of patent appeal. “The Origin of Municipal Incorporation in Eng- A resolution by Judge Thomas, of New York, land and the United States ” formed the subject was adopted to the effect that there should be of Judge A. M. Eaton, of Providence, R. I., erected at Washington a Temple of Justice suffiaddress. Tracing the history of incorporation, he cient in capacity to accommodate all the courts argued that the right to self-government is a which are now compelled to meet in different places fundamental Anglo-Saxon right, apart from power in the district. derived from the State. On the liberties of cities W. B. Hornblower, of New York, offered a resohe said:
lution, which was unanimously adopted, that the “Foremost among these liberties is the right committee on federal courts be instructed to preto local self-government that politicians through- pare and submit to the association at the next out the United States are assailing through control annual meeting a bill to increase the number of of the legislature by the machine. Too often they judges in each United States Circuit Court from are helped, or not resisted, through public apathy, three to five, four of whom shall be necessary for ignorance of the deep-seated nature of the right a quorum.” to local self-government through the origin and
In the section of patent trade-mark and copydevelopment of municipal incorporation and the right law a number of papers were read and disdecisions of courts, guided by erroneous rules of cussed. In the section of legal education Henry S. law and precedents following implicitly conclusions Redfield, of the Columbia Law School, read a paper arrived at without adequate study of English and on “A Defect in Legal Education," which was American history and our legal and political de- followed by discussion. Franklin M. Danaher, of velopment, following the mere letter of the law the New York State board of law examiners, prewithout inquiry into the principle at the bottom sented' a paper on “Courses of Study for Law
Clerks." of it. I firmly believe that herein now lies the
The association will meet at Hot Springs, Va., greatest source of danger to American political institutions. Either an enlightened public opinion
in August, 1903. W. B. Hornblower, of New York and better knowledge by bench and bar of our
city, presided at the annual dinner of the associarights must arouse our judiciary to save us from tion, which was given at the Grand Union hotel. such legislation as has been upheld in late decisions or our Constitutions must be amended so that they
OLIVER WENDELL HOLMES, 2d, AS A will state explicitly that towns, cities (or counties,
SUPREME COURT JUDGE. etc., in some States) are the units of our system of government and have the right to govern them
While intensely American in the best sense, selves in all matters of local concern, free from
Chief Justice Holmes is a cosmopolite in his readthe control of the legislature, except through gen- and in his ideals as a jurist. For his own as well
ing, in personal acquaintance, in his sympathies, eral laws, applicable to all such units alike, or
as for his father's sake, he has been taken into through particular laws passed at the request and
European circles which few American jurists have with the consent of such units, to enable them to do that which otherwise they would be powerless
penetrated. He knows continental literatures. He
is alive to Italian pioneer investigation in juristo accomplish."
prudence based on science. The Bar Association elected the following offi
Socially he will adorn the cosmopolitan society cers: President, Francis Rawle, Philadelphia; secre- of the national capital. And in the sacred confines tary, John Hinkley, Baltimore; treasurer, Frederick of the court-room, whether when under public E. Wadhams, New York; executive committee, scrutiny or when the justices are “ by themselves," ex-officio, Francis Rawle, Philadelphia; U. M. Rose, he will not be found lacking in that father-wit Little Rock; Frederick E. Wadhams, New York, which so often goes along with the judicial temand John Hinkley, Baltimore. The following were perament. Of the five requisites of success in the elected members: Charles F. Libby, Portland;
calling to which he has given so much of his liie, Rodney A. Mercer, Towanda; James Hagerman, as defined by the late Justice Joseph P. Bradley, St. Louis; P. W. Meldrim, Atlanta, and Platt of the United States Supreme Court — moral sense, Rogers, Denver. Vice-presidents and members of brains, learning, tact, and experience Chief Juslocal councils were also elected for each State.
tice Holmes has at least four strongly marked. In A resolution of Judge L. L. Bond, of Chicago, I addition, he has what Chief Justice Bradley said in regard to preparing a national trade-niark law must be added to natural aptitude, viz.: “power was referred to the standing committee on trade-I of intense and persistent labor.” That he is a Papinian, a Cujas, a Coke, a Hale, a Mansfield, a for an illegal purpose; and, thirdly, that in order Blackstone, a Marshall — in short, a genius such to properly establish that the article was designed as arises now and then to put talent to shame and to be put, or has been put, to an illegal use, there dazzle the legal profession, none of his most ardent must be a proceeding in a court of criminal jurisadmirers in Massachusetts will claim. Nor will diction, and the question of the guilt or innocence those who question most the wholeness of his vision of the owner of or person who uses the article canas judge fail to pay homage to the insight of his not be determined in the replevin case. Testing the
instruction granted by the learned judge below by partial views, or the moral courage and lofty pur- these principles, we think it will clearly appear that poses of the man.- From a sketch of Oliver
he has fallen into error; for while we held in the Wendell Holmes, Jurist,” by George Perry Morris, former appeal that a machine like the one here in in the American Monthly Review of Reviews for question, which the prayer concedes can be used September.
either for legal or illegal purposes, may not be sum
marily seized by the police authorities, his instrucNotes of Cases.
tion is based upon the proposition that such a seizure of such a machine is legal if the court in
the replevin case find that it was used, or intended Gambling Device; Seizure; Illegal Use.— In
to be used, by the plaintiff for gambling, and that Wagner v. Upshur, decided by the Court of Appeals the devices for such innocent use were fraudulently of Maryland in June, 1902 (52 Atl., 509), it was attached to the machine for the purpose of evading held that a musical slot machine which could be used the laws of this State against gambling. While the for either legal or illegal purposes could not be questions of fact as to the guilt of the plaintiff of seized by the police authorities as a preventive
the charge of gambling, submitted by this instrucmeasure unless it had first been properly established tion, would be properly submitted to a jury, or to in a criminal proceeding that such article was the court sitting as a jury, in a criminal proceeding, designed or used for an illegal purpose. The court they have no proper place in a civil proceeding like said in part:
an action of replevin; otherwise, as suggested by The question presented here, although one of counsel for appellant, “the result would be to cause considerable importance, is a narrow one, and is, j a forfeiture of property for crime by indirectly conwe think, controlled by the views announced in victing of crime in a civil proceeding." But there is the former appeal (93 Md., 192, 48 Atl., 455, 52 L. another objection to the prayer, raised by the plaintR. A., 775). Thus, in the former case it is said: iff's special exception, to the effect that there is no “In the case at bar, the property seized under the legally sufficient evidence to show that the innocent concessions of the demurrer is an instrument 'in- features of the machine were fraudulently attached tended and designed to be used by the plaintiff and thereto for the purpose of violating the gambling others in violation of the gambling laws,' and one laws of the State. We have carefully examined the of such a character that 'it can be put to no legitimate record, and are of opinion not only that this excepuse. It does not, therefore, belong to the class of tion is well taken, but that there is an absolute articles that may or may not be used for legal pur- failure of proof on this point. It follows, therefore, poses. If it did, the presumption cannot be made without the further consideration of other objections that the owner intended it for illegal purposes, and, which were urged against the granted instruction, however the law may be otherwise, it is clear upon that we are of opinion it is erroneous, and should principle and authority that no seizure can be made not have been granted. The plaintiff's second as a preventive measure without it had first been prayer is, we think, a clear and proper statement of properly established that the article was procured the law applicable to the case, and should have been and held for an illegal purpose.” Then, again, granted. By it the plaintiff requested the court to towards the end of the opinion, referring to authori- declare, as the law of the case," that if the court, ties cited : “ Those are cases where the article sitting as a jury, finds that, as a matter of fact, seized may be put to legal, as well as illegal, pur- the musical slot machine mentioned in the pleadings poses, and, until it has been shown before the proper and evidence is an article that may or may not be tribunal that it was designed to be put or has been used for legal purposes, that the plaintiff was enput to an illegal use, it may not be seized as a titled to the possession thereof when taken by the preventive measure.” The doctrines thus clearly defendants, and that the same was then seized and announced in the former appeal conclusively settle taken by the defendants, then the verdict must be the following propositions: First, that only such for the plaintiff; there being no evidence in this property or articles as are intended to be used in case legally sufficient to prove that, at the time of violation of law, and can be used for no legitimate the seizure of the machine by the defendants, it purpose, can be summarily seized by the police had been shown before the proper tribunal that said authorities; and, secondly, that articles or property machine was designed to be put or had been put that may or may not be used for legal purposes can- to an illegal use; there being no evidence legally not be seized until it has first been properly estab- sufficient to show that at the time of said seizure lished that the article was procured, held or used' there was any charge preferred against the plaintiff
or others for any crime committed in connection routes by Houston to New Orleans and by Shrevewith said machine, or any evidence legally sufficient port to New Orleans were not open for business, to show that said machine was seized and held by as a result of severe storms in that section, which the defendants for use as evidence against the had prostrated its wires. It was also known to plaintiff or others." It is hardly necessary to say them that, as a result of the condition of defendthat it is conceded that an article like the one which ant's wires between Houston and New Orleans and is the subject of this case may always be seized and Shreveport and New Orleans, there had been held for use as evidence against the owner, possessor congestion of business in the Dallas relay office, and or others in a criminal proceeding against them or that messages sent to that office would be delayed. either of them.— New York Law Journal.
The message in question was received by defendant's
agents in the evening of September 13. It was Telegraph Companies; Contract; Delay.— In promptly transmitted to defendant's relay office at Western Union Tel. Co. v. Birge-Forbes Co., de Dallas, and there received at 5:30 P. M. September cided by the Court of Civil Appeals of Texas, in | 13. It was transmitted from the Dallas office to St. June, 1902 (69 S. W., 181), it was held that where Louis at 5:24 A. M. September 14, and remained in the contract of a telegraph company provided that St. Louis twenty minutes. It was transmitted from it should not be liable for delays in the transmission St. Louis at 5:43 A. M., standard time, to New Orof a message arising from unavoidable interruptions leans, and received at the office of C. H. Minge & in the working of its lines, such condition does not Co. at 7:42 A. M. September 14. A reasonable time, exempt the company from liability for delays result- under normal conditions, to send a message from ing from causes existing and known to its agent Sherman to New Orleans and get a reply is thirty at the time the message was received, and of which minutes. Had the message been delivered to C. the sender was not informed.
H. Minge & Co. on the 13th, they could have proIt was further held that where the lines of a tele-tected the offer up to 8 o'clock at night. The congraph company are down at the time a message is tention of appellant is, in effect, that the contract tendered for transmission, it may decline to receive exempts it from liability for damages resulting from the message; but if it is received without informing its failure to transmit the message with dispatch if the sender of the defects in the lines, and if the such failure was occasioned by unavoidable intercompany fails to promptly transmit it, it is liable ruption in the working of its lines, notwithstanding for the resulting damages.
such interruption existed, and its agents had knowlIt was also decided that where, at the time of edge thereof, at the time of the receipt of the mesdelivering a message to a telegraph company to sage, and the sender had no knowledge of such transmit, plaintiff's agent knew that certain lines interruption. Upon the receipt of the message by were down, but did not know that the company the company it was its duty to transmit the same did not have other lines by which the message could with reasonable dispatch to its destination, and be sent, such knowledge did not exempt the com- deliver the same to the addressee. If, after its pany from liability for the damages resulting from receipt, the wires and instrumentalities for the transdelay. The court said in part:
mission of the message became interrupted by reaIt is contended that, the plaintiff having con- son of an unprecedented storm, so as to prevent tracted to absolve the defendant from liability for their working, then, under the stipulation in the delay in transmitting said message occasioned by contract, it would be excused for such delay as the unavoidable interruption in the working of de resulted from such interruption. It is insisted that fendant's lines, the stipulation was valid, and it was the stipulation is broad enough to include such admissible to show in explanation of and as excuse interruptions as existed at the time of the receipt for the delay, the condition of the defendant's wires, of the message. We do not think the contract is poles, and other instrumentalities, and the cause capable of such a construction. It speaks of delays thereof. The contract for the transmission of the arising - evidently meaning to arise in the future. message contained the following clause: " It is lf, however, the contract were capable of the conagreed between the sender of the following message struction contended for by appellant, under the facts and this company that said company will not be the stipulation contained in the contract could not liable in any case for delays arising from unavoid- be invoked in this case. In many respects the duties able interruptions in the working of its lines.” The and liabilities of a telegraph company are analogous usual route for the transmission of messages from to those of a common carrier. They undertake to Sherman to New Orleans was to its relay office in exercise a public employment, and in executing such Dallas, and thence to Houston, and from there over employment they must use the same degree of care its line along the Southern Pacific Railroad to New and skill which a prudent person would use under Orleans, or from Dallas over its line along the Texas the same circumstances. This applies to the receive & Pacific Railroad to Shreveport, and thence to New ing and transmission of all proper messages tenOrleans. If these were closed, then from Dallas dered to it for transmission. If, as contended by to St. Louis, and thence to New Orleans. It was appellant, its wires and instrumentalities over its known by defendant's agents when the message was routes to New Orleans were interrupted by an unreceived by them for transmission that the precedented storm, then it could have declined to receive the message on the ground that an act of Jonathan Ross, former judge of the Supreme Court God had prevented it from complying with its duty of Vermont; “ Asylums,” by Edward M. Winston ; to receive and transmit the message. It should at “Attorney and Client,” by George F. Tucker, of least have informed plaintiff of the facts, and af-: the Boston University Law School; “Attorneyforded it an opportunity to make other arrangements General,” edited by Robert F. Walker, some time if it so desired. Having accepted the message with attorney-general of Missouri: “ Auctions and Aucfull knowledge of the condition of its wires and tioneers,” by Archibald C. Boyd, of the Maine bar instrumentalities, and assumed the duty of trans- - are among the other subjects treated. mitting the same to the addressee, the company Perhaps the most important topic to the general cannot set up the stipulation in the contract to practitioner is Attachments,” edited by Roger Fosexcuse its non-performance of duty (Railway Co. ter, author of “ Foster's Federal Practice.” No v. Anderson, Tex. Civ. App., 21 S. W., 692; Ex- existing text-book has covered this subject adepress Co. v. Jackson, 21 S. W., 667, 92 Tenn., 326). quately and an examination of this treatment in
It is insisted that N. B. Birge, secretary of plaint- the American & English Encyclopaedia of Law (2d iff company, had notice of the condition of defend- ed.) shows, to say the least, some haste and careant's wires when the message was sent.
The evi- lessness in its preparation. dence shows that he knew that the wires between A feature of this work which continues especially Houston and New Orleans were prostrated and not to commend itself is the words and phrases arworking He did not know but that defendant had ranged alphabetically; the words are learnedly other lines open, and over which the message could defined and the phrases admirably selected. be sent. He did not know of the interruption in We cheerfully commend this work to the bench appellant's lines between Shreveport and New Or- and bar, as it seems to be realizing every promise leans. He did not know of the congested condition made by its publishers, and destined to become the of appellant's business at its Dallas relay office. great compendium of American law and practice,
a monument to American enterprise and a boon to New Books and New Editions. lawyers.
Cyclopedia of Law and Procedure. Edited by Wil
Literary Notes. liam Mack and Howard P. Nash. Volume IV. "Assignments” to “ Baggage." New York: The
Mr. Zangwill is writing a new novel, which will American Law Book Company, 76 William street. be published next year. London: Butterworth & Company, 12 Bell Yard.
Hall Caine's next production is to concern itself 1902.
with divers aspects of commercial life, including a We have heretofore had occasion to commend to notable bank failure in the Isle of Man. our readers the earlier volumes of this work as they
The limited edition of Edward Rowland Sill's appeared. What was then said applies with equal,
poetry that was announced about a fortnight ago if not greater, force to the volume now before us. The fact that we have said it before does not de- by Houghton, Viffin & Co. has now been entirely
subscribed for. tract from the force of our previous commendation of the plan by which all the law — both substantive One of the leading books of the Lothrop Publishand adjective — is to be treated in one work. Plead-ing Company for the coming season will be a novel ing and practice, and substantive law are so closely by James Creelman, entitled “Eagle's Blood.” It interrelated that a logical division is not only is a patriotic tale of the present time. impracticable, but if justiable at all, only for financial
The Putnams are publishing a new book on Robreasons the benefit, of course, accruing to the ert Louis Stevenson. This is an essay, more of a publishers.
critical than a personal estimate, by Leslie Stephen, The voiumes now in our hands, the fourth of the and will be published in September in the “Ariel series, commences with “Assignments” and ends Booklet Series.” with “ Baggage.” Assignments” written by Roderick E. Rombauer, some time of the St. Louis Court
Mrs. “ John Oliver Hobbes" Craigie's new novel,
Love and the Soul Hunters," is to be brought out of Appeals, is a complete and exhaustive ment of that subject. 'Assignments for the Benefit
in September. It is a long story, and it is said that of Creditors" is fully treated by Marion C. Early,
the leading personages are connected with the world of the St. Louis bar, whose edition of “ Bishop's of finance and the empire of fashion. Commentaries on the Law of Statutory Crimes," A new anthology of Victorian poetry has been fully warrants the conclusion that the subject has made by Sir Mountstuart E. Grant Duff, and will been ably and comprehensively handled. The arti- be placed on sale by E. D. Pútnam & Co. Owing cle covers one hundred and seventy-five pages, and to Mr. Stedman's volume, which was first in the is exhaustively written up in that space. * Associa- field, being called "A Victorian Anthology," a new tions,” by H. Gerald Chapin, editor of the Ameri- title had to be found for this newcomer. It has can Lawyer; "Assumpsit, Action of,” edited by been dubbed “An Anthology of Victorian Poetry.”
Peter Newell, the well-known artist, has recently and Mrs. Churchill at their summer residence, recovered from an attack of typhoid fever, but is Harlakenden house, on July 24th. Augustus St. busily engaged at present on work for the holidays. Gaudens, Maxfield Parrish and L. E. Shipman, among Mr. Newell does not work from models, his figures others, were present, and the announcement is said not being drawn on conventional lines.
to have been received without great surprise and
with no little enthusiasm. Houghton, Mifflin & Co. have in preparation a new revised edition of their portrait catalogue. Portraits Miss Glasgow, author of “ The Battleground,” is of the newer authors have been added and the cata- now in the Adirondacks spending most of her time logue contains over 1,000 titles, and is said to be playing golf. Doubleday, Page & Co. will soon pubaltogether a very notable and valuable list.
lish her book of poems. The volume will be beautiThe first edition (1719) of “Robinson Crusoe," fully printed by De Vinne and will include poems and the second edition of the “Farther Adventures
of a miscellaneous sort that have appeared in the of Crusoe, published in the same year, were sold Atlantic Monthly and other publications, as well as
unpublished verse. In October the same firm will in London the other day for $1,225. Both works
bring out illustrated edition of the author's were rare and fine octavo copies in old calf.
“Voice of the People.". Benjamin Kidd, author of “Principles of Western Civilization," has gone to South Africa to make
A new novel by the author of Stringtown on economic studies there. His latest work has been the Pike,” “Warwick,” etc., is announced for early done for the “Encyclopaedia Britannica.” One of publication by Dodd, Mead & Co. It is called “Redhis articles deals with the application of the doctrine Head,” and in it John Uri Lloyd has drawn the of evolution to society.
picture of a Kentucky feud. Red-Head, it may be
remembered, was a character from Mr. Lloyd's "A Speckled Bird,” the new novel by Augusta “Stringtown on the. Pike,” but this story, while it Evans Wilson, of which 75,000 copies have been touches upon the characters in that book, is pracsold in advance of publication, is on the press for tically. new. It has been illustrated as a Christmas another edition of 25,000. The book will be issued book by Reginald Birch, every page being decorated simultaneously in England and Canada, by the in color, and there
full-page Dillingham Company.
illustrations. S. R. Crockett, author of “The Dark o'the Moon,”
A copy of the first edition of “Elia,” uncut, and has been traveling on the Continent for the past with the author's inscription, “Mr. John Clare, with two or three months in search of rest and recreation Elia's regards,” brought at a recent sale the sum and fresh literary material. He is expected to of $440. At the same sale a copy of Lamb's works, return to London this month. “The Dark o' the first edition, two volumes, original boards, uncut, Moon” seems to rival the success of Mr. Crockett's with inscription, “For Mr. Clare, with C. Lamb's former book, “The Raiders."
kindest remembrance," brought $345. A copy of
the first edition of Lamb's “Prince Dorus," in a Henry C. Shelley has drawn a picture of the poet Keats in “ Keats and His Circle,” which G. P. $310. A first edition of Keats's poems, with auto
rare octavo, with nine colored engravings, brought Putnam's Sons are to publish. The object has been
graph inscription," John Clare, Helpstone," was to present the poet as a man, aside from his literary sold for $123, the first edition of Keats's “ Endy.
But several points of doubt in Keats's life mion” for $70, and the first edition of his " Lamia' that have a literary interest have been investigated,
for $65. and new material has been used. It is asserted by the London Chronicle that if a
John Fiske left two volumes of essays ready for literary treasure comes on the market nowadays it publication, being his only posthumous work comstands a good chance of going to America.
" Lon- pleted and ready for the press. He was an energetic don booksellers have standing orders to buy for worker and had other material in preparation, but American customers, and high prices are
at the time of his death this was the only manuscript
not grudged. “The effect of this demand from America,' which he had carried to the final stage. The essays said a well-known bookdealer the other day, 'is will be published by the Macmillan Company in the that America is becoming the great depository of early autumn under the title “ Essays: Historical English literary treasures.'"
and Literary." The contents of the two volumes
will be: “ Thomas Hutchinson, Last Royal GovWinston Churchill, at Cornish, N. H., announced ernor of Massachusetts ; “ Charles Lee, the Soldier himself as a candidate for the legislature. It seems of Fortune;” Alexander Hamilton," “ Thomas to be taken for granted in the despatches that have Jefferson, the Conservative Reformer; " James come out of Concord that after the November poll- Madison, the Constructive Statesman;
“Andrew ing the author of “ The Crisis” will be the repre- ' Jackson, Frontiersman and Soldier ; * An Amerisentative-elect from Cornish. It is hinted that he can Democracy Sixty Years Ago,” “ Tippecanoe and has his eye on congress. The announcement of his Tyler Too,” Daniel Webster," "Old and New candidature was made at a reception given by Mr. Ways of Treating History," “ The Boston Tea