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40; Madden v. Minneapolis, etc., R. Co., 20 N. W. Rep 317; Cone v. Delaware, etc., R. Co., 81 N. Y. 206; Booth v. Boston, etc., R. Co., 73 id. 38. (3) There is no legal presumption that it is the duty of the con. ductor of a railway freight train to inspect the cars and machinery of his train, or that he is chargeable with negligence for using cars if the defect was such that it might have been discovered by inspection. Rusier v. Minneapolis, etc., R. Co. Opinion by Dickinson, J.

[Decided July 21, 1884.]

WAIVER.

SALE-PARTICULAR USE-WARRANTY Where a chattel is to be made or supplied to the order of the purchaser, it is the general rule that there is an implied warranty that it shall be fit for the purpose intended. But where the article ordered and agreed to be furnished is to be of a particular design, pattern or model, well defined and understood between the parties, and the article made and delivered in pursuance of the contract conforms to such design or model, there is no such warranty implied, but only that it should be of good material and workmanship. Cunningham v. Hall, 4 Allen, 274; Mason v. Chappell, 15 Gratt. 586; Chanter v. Hopkins, 4 Mees. & W. 399; Prideaux v. Bunnett, 87 E. C. L. 613. C. contracted to manufacture and deliver to B. "one of the Cosgrove Cascade Roller Mills, machine to have a capacity of 100 barrels

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Editor of the Albany Law Journal:

The spelling "Vergil," in the Court of Appeals opinion by Judge Earl (Chapman v. Phoenix Bank, 85 N. Y. 449), having been alluded to with a "sic" in your pages, it is proper to state that the name is so spelled in Harper & Brothers' edition of Green's History of the English People, vol. I, p. 65, and that the publishers, in reply to my question whether it is a misprint, say: "D. Lewis and other competent authorities support the spelling, Vergil." Yours respectfully,

Feb. 4, 1885.

B. W. HUNTINGTON.

["Vergil" is a well accredited modern form.-ED.]

COURT OF APPEALS DECISIONS.

in twenty-four to us, the mill at that te stipulation THE following decisions were handed down Tues

as to the capacity of the mill amounted to an express warranty, and that such contract of warranty was not satisfied by delivering a machine of a certain size or description, if there proved to be such inherent defects in the mill as to prevent its successful operation, so that ordinarily under proper management it could not turn out the stipulated amount of flour. The express warranty distinguishes this case from Haase v. Nonnemacher, 21 Minn. 490. Here there is a written contract obligating the parties to do certain things, and binding upon both. The receipt of a mill otherwise answering the description in the contract was not a waiver of defendant's right to sue upon the warranty on a subsequent discovery of its breach. Polhemus v. Heiman, 45 Cal. 573; Mandel v. Buttles, 21 Minn. 397; Scott v. Raymond, 18 N. W. Rep. 274. Cosgrove v. Burnett. Opinion by Vanderburgh, J. [Decided July 29, 1884.]

CORRESPONDENCE.

HOLLS' MEMOIR OF LIEBER.

Editor of the Albany Law Journal:

In your very courteous notice of my paper on Dr. Francis Lieber occurs the following statement:

"When a translation of the Conversations Lexicon could be termed an Encyclopædia Americana, it is not surprising to learn that it was seriously proposed to control Bismarck at Frankfort by a German compendium from Cushing's Manual."

This does injustice to the memory of Dr. Lieber. The Encyclopædia Americana was much more than a translation. About half of its articles were original, and the rest were "adapted" for the new work in a manner which involved rewriting as well as translating.

Moreover the body for whose benefit Dr. Lieber thought of translating Cushing's Manual was, as I stated in my paper, the revolutionary Parliament which met in St. Paul's church at Frankfort in 1848, and of which Bismarck never was a member. Dr. Lieber's hard common sense would never have allowed him to seriously propose influencing or controlling the German Diet (Bundestag), to which Bismarck was appointed ambassador from Prussia in 1852, by any parliamentary rules. He was right however in considering

day, Feb 10, 1885:

Judgment affirmed with costs-Daniel P. Barnard and others, respondents, v. John T. Barnard and others, Horatio G. Onderdonk, appellants; Sarah B. Aikman, respondent, v. Blaize L. Harsell and another, trustees, appellants; In re Will of Ann Martin; Willy Wallach and another, executors, respondents, v. Commercial Fire Ins. Co., appellants; Daniel Defreest, respondent, v. Samuel S. Warner and others, appellants; G. Bruce Brown, adm'r, etc., respondent, v. George L.Landon, appellant; Sophie Schmid, adm'x, respondent, v. N. Y., L. E. & W. R., appellant; Johanna Donahue, respondent, v. Susan R. Kendall and others, appellants; Catherine Murphy, adm'x, respondent, v. N. Y., L. E. & W. R. Co., appellant; Susan Lenhart, adm'x, respondent, v. N. Y., L. E. & W. R. Co., appellant; Ida Deweese, adm'x, respondent, v. Boston and Albany R. Co., appellant; Martha A. Beales, executor, etc., respondent, v. James Lyons, appellant; In re Final Accounting of Stephen T. Hopkins, executor, etc.; Jos. Blumenthal, respondent, v. Julia A Riley, adm'x, appellant.-Judgment affirmed and record remitted to the court below, with directions to proceed according to law-People, respondent, v. George H. Mills, appellant. Judgment affirmed without costs in this court to either party-Rector, etc., of Trinity Church, etc., appellant, v. Jacob H. Vander. bilt, respondent.-Order affirmed and judgment absolute ordered for the defendant on the stipulation with costs-Henry G. Crouch, appellant, v. William M. Hayes, treasurer, etc., respondent.-Judgment reversed, new trial granted, costs to abide the eventCynthia A. Tolman, adm'x, etc., respondent, v. Syracuse, Binghamton and New York Railroad, appellant; Eugene Lewis, executor, respondent, v. Enos Merritt, appellant; Mary A. Brick, adm'x, etc., respondent, v. Rochester, New York and Pennsylvania Railroad Company, appellant.-Motion for reargument denied with costs-Stephen D. Pringle, respondent, v. Charles D. Leverich, appellant.-Motion to amend remittitur denied with costs-People ex rel. James S. Stranahan and others v. Hubert O. Thompson, commissioner, etc.-Granted with costs-Mary F. Stoughton, respondent, v. Samucl A. Lewis, appellant.Motion to vacate order dismissing appeal granted, without costs-Elizabeth Welch v. John T. Wilson. -Motion to put on preferred calendar denied without costs-In re Accounting of C. A. Waldron, assignee.

The Albany Law Journal.

MR.

ALBANY, FEBRUARY 21, 1885.

CURRENT TOPICS.

R. CLEMENT BATES, in the Cincinnati Law Bulletin, has the following on text-books: "If codification is really necessary as a relief from an intolerable load of precedents, there must be, in my opinion, years of preliminary work done before any body of lawyers, however accomplished, or any Legislature, however free from ignorance or indolence, can succeed in it or any part of it. To thresh a field sown with different kinds of grain, by threshing one stalk of each at a time before separation and gathering into shocks, would be easier and more possible. The present generation of wordy and inexplicit text-books must first pass away, and with them disappear the present system of teaching law. It is not only necessary before codification, but also highly desirable for other purposes, and far from impossible, that now, at the present time, treatises on the best known legal subjects should be constructed by formulating settled and universal propositions into the shape of categorical rules, like the sections of a statute, and printing them, perhaps, in large type. These then stand as legal axioms of ultimate postulates. Then under each of these axioms, in smaller type, follow its sub-rules or inferential branches, as corollaries; and finally, in still smaller type, under each of these latter deductions, will naturally fall the anomalous and doubtful decisions, and extreme and inconsistent applications of the principles, all the primary or secondary being accompanied, of course, by their illustrative and historical authorities. * * This leads to the only other alternative in the preparation of material for codification, and that is, for the men engaged in instructing in the elements of law to formulate the law somewhat in the manner of the text-books above described, but on a smaller scale, and thus furnish the profession and the world with the raw material of codification." We do not assent to this. The best text-book writers would prove poor codifiers. A writer on a special subject has a hobby which he must ride, and the importance of which he will exaggerate. He cannot take the broad view of the man trained to look at principles as separated from cases, and to express them concisely. It is indeed disheartening if we have to wait a generation for codification in order to have our text-books improved.

*

Nearly every one will agree with Mr. Bates however that our text-books might be improved. They should gradually be written after the method above pointed out, which we believe was originated by Vice-Chancellor Wigram in his unrivaled treatise on Extrinsic Evidence as to Wills, and which has VOL. 31-No. 8.

been very successfully followed in a few instances, as by Underhill on Torts, Desty on Taxation, Lawson on Custom, and some others. And every one will agree with Bates in the following: "Law treatises so constructed, whether they prove imperfect or not, will also revolutionize the present inadequate method of teaching and learning law. I suppose no lawyer, of say fifteen years' standing, but feels and regrets that all he has learned might perhaps have been acquired in four or five years, if he only could have had the proper tools, and the advantage of working or being taught on some conceivably better plan; and law students might be in two or three years trained in the fundamental conceptions and theories of the entire substantive law, and not only that, but more thoroughly and accurately than now, producing a set of men better equipped than we are to undertake codification. It would be unjust to disparage too much present systems of instruction; some, notably the Langdell system, and that of the Iowa school, have conspicuous merits, but the results are entirely inadequate to the time required."

Governor Hoadley, of Ohio, who is an earnest and able advocate of codification, has the following on the subject in his late message: "If the whole body of the law of Ohio were reduced to writing and enacted into statutes, great progress would be made in giving to it accessibility and certainty, and in the economy of its administration. This was done with the Roman law in the days of Justinian, and the body of the civil law prepared under the auspices of that emperor (revised in France in the Codes of Napoleon), is to-day the legal system of the whole civilized world, except the English speaking nations, and largely affects even their jurisprudence. The practicability of such a work has therefore been tested by the experience of ages. In California and Dakota codification has been successfully accomplished, so that no unwritten law is administered, and the courts no longer indulge in guesses as to the customs of England as the basis for judicial action. In New York the complete code has twice received legislative sanction, and but for vetoes by Governors Robinson and Cornell would have been in force. Livingston's work, done early in the century, in the preparation of a Code of Procedure and Penal Code for Louisiana, still stands, and twentyfour States have codified their Civil and nineteen their Criminal Procedure successfully since. The work which has been so well done in Ohio in the Codes of Civil and Criminal Procedure, in the laws of testamentary succession, usury, guardianship and many other topics, may be extended with profit to the whole body of the law. I recommend that it be undertaken through the agency of a commission to be created for that purpose.' The italics are ours, and those words express the state of the law as well as any we have ever seen.

Judge Freedman has adjudged ex-Mayor Edson guilty of contempt in disobeying Judge Beach's in

junction restraining him from filling certain mu-
nicipal offices in the city of New York.
He says:
"The defendant, as mayor, was the chief executive
officer of the corporation of New York. He was
elected to that high office by the votes of a majority
of the electors of this great city. He, above all oth-
ers, should have set an example of devotion and
submission to the supremacy of the law as adminis-
tered by the tribunals created by the sovereign
power of the State for that purpose. Occupying
such a high position, his willful and public disobe-
dience to the positive mandate of a court of general
jurisdiction, is an act of far-reaching consequences.
Under these circumstances, and inasmuch as neither
the sentence by this court in the Compton case of
Alderman Sturtevant to imprisonment for fifteen
days, and to payment of a fine of $250 into the city
treasury, and of a further fine of $102.07 to the re-
lators for their costs and expenses, nor the sentence
by the Supreme Court in the Dwyer case of each of

profession and the public in this State. We call attention to a communication on this subject in another column, which suggests some novel expedients, well worthy of serious consideration. In regard to two of them we can at once express our own opinion. We have long believed that there are a good many appeals manifestly taken for delay in which the court ought to exercise its power to impose damages. As to increasing the costs of appeal generally, we are decidedly opposed to it. Litigation should be made cheaper rather than dearer, and many sound lawyers are even in favor of abolishing costs except as a penalty. In regard to the other and main expedient suggested, we must reflect with

our readers.

NOTES OF CASES.

N Geismer v. Lake Shore and Michigan Southern

the seventeen aldermen to imprisonment for thirty G. Co., 34 Hun, 50, it was held that the de

fendant was liable in damages for delay in trans

days and the payment of a fine of $250 deterred the defendant from defying the authority of this court; the case demands the infliction of the highest pun-portation of goods caused by a strike of its emishment anthorized by law, unless mitigating circumstances can be found that can properly be considered. Upon this point I have, after due deliberation, come to the conclusion that some of the matters urged as an excuse, but rejected as insufficient in law for that purpose, ought to be accepted in mitigation. The fact cannot be denied that the order of injunction was granted under circumstances which made it difficult to ascertain whether there was or was not jurisdiction, and upon being advised by counsel that the order was void, the defendant may well have believed it. Moreover the practice of the plaintiffs themselves in obtaining the injunction was so faulty and irregular as to lend color to the theory that the order was invalid. Upon the whole, I am charitable enough to think that the defendant actually believed that the order was void. But after giving to the defendant the fullest benefit of every extenuating consideration that can be presented, the case still remains one which calls for substantial punishment. I therefore direct that for the willful disobedience and the contempt of which the defendant stands adjudged guilty, he be imprisoned in the county jail for the period of fifteen days, and that in addition thereto, he pay a fine of $250." This is as much as to say that although an injunction may be contemptible, it is still contempt to disobey it, when there was colorable jurisdiction to grant it. And this is probably the law. We have great confidence in Judge Freedman's judgment, impartiality and integrity. He is one of the city judges who is above suspicion, and we do not believe that any order of his will ever need to be made the subject of legislative inquiry.

Next to codification the relief of our Court of Appeals calendar is the most vital subject to our

ployees, although assisted by outside persons. The court said: "This precise question does not appear to have been passed upon in the courts of this State. In the case of Blackstock v. New York and Erie Railroad Co., 20 N. Y. 48, the damages sustained were for a delay in the carriage of a quantity of potatoes. The delay was occasioned by reason of a strike of the engineers of the railroad company. In that case it was held that although the officers of the company were without the slightest fault, the corporation was responsible for the damages caused by a delay in transporting the property, which resulted from the strike. In that case there does not appear to have been any violence used on the part of the striking engineers. It does not appear however that the railroad company was unable to find other competent men with whom they could safely intrust the running of their engines. The court laid down the rule that the railroad company is liable for the misconduct of its servants, and that it makes no difference whether such misconduct was willful or from carelessness, if their action was within the scope of their employment. In the case of Weed v. Panama Railroad Co., 17 N. Y. 362, the action was for damages sustained by a passenger by reason of the willful act of the conductor in stopping the train and detaining it over night. It was held that the company was under contract to transport the passenger with reasonable dispatch to his place of destination, and that by its failure to do so it was guilty of a breach of contract, and that the plaintiff could recover, notwithstanding the act of the conductor in stopping the train was willful; that he was acting within the scope of his employment. The rule, as laid down in this case, is sufficiently broad to cover the case under consideration. The employees of the defendant were engaged in running the trains of the

6.

com

company. They stopped the trains at Collingwood, striking employees had been discharged by the detained them there, and thus prevented the prop-company, and that the acts of violence took place erty of the plaintiff from being transported to its after they had ceased to be employees. In that replace of destination, in the same manner as the con- spect is is distinguishable from the case under conductor stopped the train in the case of Panama sideration." Railroad Company, and prevented the transportation of the passenger. Under the authority of that case they were servants acting within the scope of their employment. This case is cited with approval in the case of Mott v. Consumers' Ice Co., 73 N. Y. 543. In the case of the Indianapolis and St. Louis Railroad Co. v. Juntegen (manuscript opinion of the Appellate Court of the Third District of Illinois), the action was for damages occasioned at the same time and by the same strike which is the subject of consideration in this action. The court in that case held that the plaintiff was not entitled to recover. It however placed its decision upon the ground that it appeared from the evidence upon the trial that but a small portion of the strikers had been in the employ of the defendant's company; that they had left their employment and joined the strike, and that the great body of strikers were men not in the employ of the company. The evidence in the case under consideration appears to be quite different upon this branch, making it a proper question for the jury. In the case of the Pittsburg, Fort Wayne and Chicago Railroad Co. v. Hazen, 84 Ill. 36; S. C., 25 Am. Rep. 422, the action was for damages occasioned in consequence of a strike. The rule was there stated as follows: "From the delay resulting from the refusal of the employees of the company to do duty, the company is undoubtedly responsible. For delay resulting solely from the lawless violence of men not in the employment of the company, the company is not responsible even though the men whose violence caused the delay had but a short time before been employed by the company. In the case of the Pittsburg, Cincinnati and St. Louis Railroad Co. v. Hollowell, 65 Ind. 188; S. C., 32 Am. Rep. 63, the action was for damages occasioned by the breach of an agreement to ship live stock, and such breach was occasioned by a strike among the employees of the company. The question was raised upon a demurrer to the pleading. The majority of the court held the pleading insufficient, but differed in reference to its construction and not in reference to the rule of law applicable. The rule as there stated is, that whether the persons causing the delay complained of were the employees of the defendant or not, was a question of fact for trial, and that where the delay was caused by a strike or mob composed solely of the employees of the railroad company, the company will not be excused from carrying the freight in accordance with its contract. This case appears to be in point, and in accordance with the weight of authority in this State. We do not regard it as in conflict with the case of the Pittsburg, Fort Wayne and Chicago Railroad Co. v. Hazen, supra. In that case the evidence tended to show that the

In State v. Nebraska Telephone Co., Nebraska Supreme Court, January 21, 1885, 22 N. W. Rep. 237, it was held that telephone companies being common carriers of news, all persons are entitled to equal facilities in the employment of the benefits to be derived from the use of the telephone; and where no good reason is assigned for a refusal by a telephone company to furnish a telephone instrument to a person who desires to become a subscriber, and ten ders a full compliance with all the rules established for other subscribers, a writ of mandamus will issue to compel such company to furnish such person with the necessary instruments. The court said: The demands of the commerce of the present day make the telephone a necessity. All people, upon complying with the reasonable rules and demands of the owners of the commodity — patented as it is should have the benefits of the new merce. The wires of respondent pass the office of the relator. Its posts are planted in the street in front of his door. In the very nature of things, no other wires or posts will be placed there while those of respondent remain. The relator never can be supplied with this new element of commerce, so necessary in the prosecution of all kinds of business, unless supplied by the respondent. He has tendered to it all the money required by it from its other subscribers in Lincoln for putting in an instrument. He has proven, and it is conceded by respondent, that he is able, financially, to meet all the payments which may become due in the future. It is shown that his office can be supplied with less expense and trouble to respondent than many others which are furnished by it. No reason can be assigned why respondent should not furnish the required instruments, except that it does not want to. There could, and doubtless does exist in many cases, sufficient reason for failing to comply with such a demand, but they are not shown to exist in this case. It is known to be essential to the business interests of relator that his office be furnished with a telephone. The value of such property is of course conceded by respondent, hut by its attitude, it says it will destroy those interests and give to some one in the same business, who may have been more friendly, this advantage over him. It is said by respondent that it has public telephone stations in Lincoln, some of which are near relator's office, and that he is entitled to and may use such telephone to its full extent by coming there; that like the telegraph, it is bound to send the messages of relator, but it can as well do it from these public stations; that it is willing to do so, and that is all that can be required of it. Were it true that respondent had not undertaken to supply a public demand beyond that undertaken by the telegraph,

then its obligations would extend no further. But as the telegraph has undertaken to the public to send dispatches from its offices, so the telephone has undertaken with the public to send messages from its instruments, one of which it proposes to supply to each person or interest requiring it, if conditions are reasonably favorable. This is the basis upon which it proposes to operate- the demand which it proposes to supply. It has so assumed and undertaken to the public. That the telephone, by the necessities of commerce and public use, has become a public servant, a factor in the commerce of the nation, and of a great portion of the civilized world, cannot be questioned. It is to all intents and purposes a part of the telegraphic system of the country, and in so far as it has been introduced for public use, and has been undertaken by the respondent, so far should the respondent be held to the same obligation as the telegraph and other public servants. It has assumed the responsibilities of a common carrier of news. It has and must be held to have taken its place by the side of the telegraph of such common carrier. The views herein expressed are not new." Citing Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 9; State v. Bell Telephone Co., 36 Ohio St. 296; S. C., 38 Am. Rep. 583, and note, 587.

RULES AS TO THE PRIVILEGES OF WIT

NESSES.

RULE. An officer of the government is not compellable to give evidence (a) or to produce documents (b) which, in his opinion, it is for the public interest to keep secret (1); nor in any case while he is officially engaged in the duties of his office (c).

The first judicial expression and enforcement of this rule is believed to have taken place in the celebrated American State trial of Aaron Burr (2), Chief Justice Marshall saying: "That the president of the United States may be subpoenaed and examined as a witness, and required to produce any paper in his possession is not controverted. I cannot however on this point go the whole length for which counsel here contended. The president, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. I do not think precisely with the gentlemen on either side. I can readily conceive that the president might receive a letter which it would be improper to exhibit in public, because of the manifest inconvenience of its exposure. The occasion for demanding it ought in such a case to be very strong, and to be fully shown to the court

(1) Marbury v Madison, 1 Cranch. 137 (1803); Totten v. United States, 92 U. S. 105 (1875); R. v. Hardy, 24 How. St. Tr. 199: R. v. Watson, 32 id. 102.

(2) Burr's Trial, vol. 2, page 535.

before its production could be insisted on. I admit that in such a case much reliance must be placed on the declaration of the president, and I do think that a privilege does exist to withhold private letters of a certain description. The reason is this: letters to the president in his private character are often written to him in consequence of his public character, and may relate to public concerns. Such a letter, though it be a private one, seems to partake of the character of an official paper, and to be such as ought not on light ground to be forced into public view. Yet it is a very serious thing, if such a letter should contain any information material to the defense, to withhold from the accused the power of making use of it. It is a very serious thing to proceed to trial under such circumstances. I cannot precisely lay down any general rule for such a case. Perhaps the court ought to consider the reasons which would induce the president to refuse to exhibit such a letter as conclusive on it, unless such letter could be showu to be absolutely necessary in the defense. The president may himself state the particular reason which may have induced him to withhold a paper, and the court would unquestionably allow their full force to these reasons. At the same time the court could not refuse to pay proper attention to the affidavit of the accused. But on objections being made by the president to the production of a paper the court would not proceed further in the case without such an affidavit as would clearly show the paper to be essential to the justice of the case. On the present occasion the court would willingly hear further testimony on the materiality of the paper required,

but that is not offered. In no case of this kind would a court be required to proceed against the president as against an ordinary individual. The objections to such a course are so strong and so obvious that all must acknowledge them. But to induce the court to take any definitive and decisive step with respect to the prosecution, founded on the refusal of the president to exhibit a paper, for reasons stated by himself, the materiality of that paper ought to be shown. In this case however the president has assigned no reason whatever for withholding the paper called for. The propriety of withholding it must he decided by himself, not by another for him. Of the weight of the reasons for and against producing it he is himself the judge. It is their operation on his mind, not on the mind of others, which must be respected by the court. They must therefore be approved by himself, and not be the mere suggestions of another to him. It does not even appear to the court that the president does object to the production of any part of

this letter.

The objection, and the reasons in support of the objection, proceed from the attorney himself, and are not understood to emanate from the president. He submits it to the discretion of the attorney. Of course it is to be understood that he has no objections to the production of the whole if the attorney has not. Had the president when

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