A NOTES OF CASES. between collections generally and collections of a CURIOUS question of statutory construction arose in United States v. Sixty-five Terra-Cotta Vases, United States Circuit Court, Southern District of New York, November 16, 1883, 18 Fed. Rep. 508. Section 2505 of the Revised Statutes declares that among other articles, "cabinets of coins, medals, and all other collections of antiquities,' and "collections of antiquity especially imported, and not for sale," shall be exempt from duty. Held, to give effect to the second clause, only such collections are embraced in the first clause as are ejusdem generis with coins and medals. Wallace, J., said: "The suit was brought to condemn certain terracotta vases, Etruscan vases, stone images, spears, lances, and other articles, because of their alleged fraudulent entry upon importation by the owner to avoid the payment of duties. The evidence, in connection with the admissions of the pleadings, tended to show that the imported articles were a collection of antiquities imported by one De Morgan | for sale, but that he represented in the invoice used upon the entry of the articles that they were a private collection, and were not imported for sale, and that the representation was false, in that they were imported to be sold. The judge ruled upon the trial that the imported articles were exempt from duty, and that as they were not dutiable there was no legal fraud in the attempt to evade the payment of duties, and he therefore directed a verdict for the owner. * * * The District judge treated the question as though Congress in one act had exempted all collections of antiquities from duty, and in a subsequent act, which was designed to extend the free-list, had exempted all such collections when specially imported and not for sale. If this were a correct view, it would seem difficult to maintain that the later act was not a repeal of the former. A later statute, so repugnant to a former one that the two cannot stand together, repeals it by implication. The two here could not possibly be reconciled; because, if the former stood, the latter could have no operation whatever. If every collection of antiquities was already exempt, the limitation pre-employment of brakesman, which he has voluntarily scribed by the later act had nothing to which it could attach. Some effect must have been intended and must be given to the language employed. It will not do to say it was meaningless, or that it was employed inadvertently, simply because it conflicts with an entire law, or because it may withdraw a particular case from the general operation of the act. In Louisville and Nashville R. Co. v. Mc Coy, Kentucky Court of Appeals, November 6, 1883, 5 Ken. L. J. & Rep. 397, it was held error to instruct a jury that a railroad company is bound to the same care of an employee that a prudent and careful man would take care of his family if placed in a like situation." The court said: "The law has a peculiar regard for human life, and as the business of conducting a railroad subjects it to extraordinary hazard, the general definition of ordinary care does not exhibit that care which the duty of those conducting railroads requires them to observe in its ordinary management. Ordinary care by them is that degree of care which a majority of men of prudent and careful habits would exercise under the same or like circumstances to avoid injury to their own person from the same risks which others undergo in their service or in obedience to their orders, or by reason of the conduct of their hazardous business. But it is going quite too far to require that degree of care which any of such persons would take of 'his family,' placed in like or similar circumstances. For it is against the laws of nature to expect a man of the greatest prudence to take the same care of an adult engaged in the dangerous taken upon himself and agreed to perform with that degree of care upon his own part which ordinarily prudent persons of his class usually take in protecting themselves from danger, as he would of his own family placed in a like predicament. For what would not a husband and father hazard to protect his own family from the ordinary dangers to which a brakesman is exposed. Imagine his horror, himself controlling every movement of the train, were he to see any member of his family engaged in the dangerous and difficult office of coupling the It was not a fair test. It was calculated to transport the jury into sentimental regions in search of the exalted degree of care which ordinary prudence dictates under such circumstances, and opened a wide realm in which the skillful advocate could 'fling the reins to fancy.' It is well that ordinary care, in such cases, should demand the same care cars. duced. At the beginning of the term, there were eleven hundred and fifty-nine cases pending on the general docket; there are now eight hundred and two, showing a reduction of three hundred and fiftyseven cases. The court disposed of three hundred and twenty-six, and the commission, which was organized April seventeenth, two hundred and forty-nine cases on the general docket, making a total of five hundred and seventy-five. * The court disposed of three hundred and eightythree motions and the commission thirty-six, a total of four hundred and nineteen." But of this number of cases one hundred and thirteen were struck from the docket. This is certainly a good work for a year, but it is not so great a work as that of our Court of Appeals for the same period. * A correspondent informs us that we are in error in stating that our Court of Appeals is the only ultimate court in this country that has kept up with its business for twelve years, and that " the Pennsylvania Supreme Court clears its docket with the utmost regularity every year." That court is one of the ablest in the country, and its reports are among the most interesting. We believe it disposes of more causes in a year than our court, but we suspect that the magnitude and importance of the questions involved is very much less. The same correspondent offers the following suggestion for relieving the calendar of the Court of Appeals: "That the cases be submitted on the printed statements of fact and brief of authorities, without oral argument except where the judges themselves may ask for it, or special causes may be shown. That there would be a great saving of time which is now virtually lost in listening to a mere repetition or amplification of what is already in the hands of the court, need not be argued." We believe that oral arguments are generally very useful; indeed, in a majority of cases, indispensable, and that they save time. Our judges do not like many submissions. The oral argument points to the vital questions, and dispenses with a vast amount of reading. As practiced in our court, oral arguments seldom extend to more than an hour on a side, and are generally much shorter. Such arguments must be much more satisfactory to the profession, and thus to the bench, than submissions, for the unsuccessful lawyer cannot plead that the judges may have overlooked a vital point, or have neglected to read the case and arguments sufficiently to apprehend the gist of the matter. We should regret to see the rule of submission without oral argument adopted. The annual meeting of the New York State Bar Association will be held in this city, Tuesday 8th January, at 11 o'clock A. M. The annual meetings of all the standing committees will be held in this city on the 7th January. The oration will be Quoting our recent remarks about the judges wearing gowns, the Kentucky Law Journal and Reporter says: "The suggestion about uniformity in dress is a good one; not that such a thing can supply the want of learning, dignity, or any of the more substantial qualities that make a good judge, but a certain degree of formalism is becoming to such high officers, and is calculated to inspire and preserve that respect for the bench to which it is entitled." We find very little opposition to the project. Most of the influential newspapers are in dress for the Kentucky judges, we should say, for A gown would be a particularly safe they seem to be a mark for the insane assassin's pistol. favor of it. The case of Pullman Palace Car Co. v. Gardner, post, is well worth reading, especially for the vigorous and racy charge of the trial judge. The judge raises a very interesting query as to what constitutes contributory negligence in case of a train robbery. He says: A railroad company "is under no sort of obligation to keep people from robbing us, except it would be by an onslaught, open violence on the cars. In such cases it has been held that the conductors are bound to protect, not only the persons of passengers, but also their property to a reasonable extent, as for instance, if some boy, fifteen years of age, with a wooden gun in his hand, should come in to rob a car, as I believe it is said they do out west, and the passengers should crawl under their seats, and the conductor and train hands run away, when perhaps if they had stood their ground they could have prevented it, the railroad company might be responsible if the jury should not find under the circumstances that the passengers ought to have defended themselves. We used to ride around in stage coaches; if robbed while in them, the company being under no obligation to carry a guard, was not responsible for the robbery, although you might go to sleep, and they knew perfectly well you would go to sleep, or ought to suppose you would, for a man could not ride half a dozen days or nights without going to sleep; but in the case of a sleeping car company the great convenience and inducement held out to passengers is that they will give comfortable night's rest. They notify them they will make them pay for it, and say to them you may go to sleep." This is rather satirical. difficulty in the supposed case is that the passengers are not sure that the gun is wooden, and the robber will not let them examine. "Quaker" guns kept our army at bay some months in front of Manassas Junction, in the civil war, and what better can be expected of railway passengers? them a The A NOTES OF CASES. between collections generally and collections of a particular class, seems clearly defined. It is only upon this assumption that any meaning can be given to the later clause, and that effect can be given to all parts of the section. No collections of antiquity could be exempt when 'imported specially and not for sale,' if all collections, under all circumstances, were already exempt. Upon any other construction it would appear that Congress, after exempting all antiquities, had proceeded in the same section of a law to revoke what it had already declared, by exempting them only upon specified conditions. The limitation or exception is in the nature of a proviso, concerning which it is affirmed that when it is repugnant to the main body of the act, the proviso shall stand and be held a repeal of the purview, as it speaks the last intention of the makers. Sedg. St. Law, 62." CURIOUS question of statutory construction arose in United States v. Sixty-five Terra-Cotta Vases, United States Circuit Court, Southern District of New York, November 16, 1883, 18 Fed. Rep. 508. Section 2505 of the Revised Statutes declares that among other articles, "cabinets of coins, medals, and all other collections of antiquities," and "collections of antiquity especially imported, and not for sale," shall be exempt from duty. Held, to give effect to the second clause, only such collections are embraced in the first clause as are ejusdem generis with coins and medals. Wallace, J., said: "The suit was brought to condemn certain terracotta vases, Etruscan vases, stone images, spears, lances, and other articles, because of their alleged fraudulent entry upon importation by the owner to avoid the payment of duties. The evidence, in connection with the admissions of the pleadings, tended to show that the imported articles were a collection of antiquities imported by one De Morgan | for sale, but that he represented in the invoice used upon the entry of the articles that they were a private collection, and were not imported for sale, and that the representation was false, in that they were imported to be sold. The judge ruled upon the trial that the imported articles were exempt from duty, and that as they were not dutiable there was no legal fraud in the attempt to evade the payment of duties, and he therefore directed a verdict for the owner. * * * The District judge treated the question as though Congress in one act had exempted all collections of antiquities from duty, and in a subsequent act, which was designed to extend the free-list, had exempted all such collections when specially imported and not for sale. If this were a correct view, it would seem difficult to maintain that the later act was not a repeal of the former. A later statute, so repugnant to a former one that the two cannot stand together, repeals it by implication. The two here could not possibly be reconciled; because, if the former stood, the latter could have no operation whatever. If every collection of antiquities was already exempt, the limitation pre-employment of brakesman, which he has voluntarily scribed by the later act had nothing to which it could attach. Some effect must have been intended and must be given to the language employed. It will not do to say it was meaningless, or that it was employed inadvertently, simply because it conflicts with an entire law, or because it may withdraw a particular case from the general operation of the act. In Louisville and Nashville R. Co. v. Mc Coy, Kentucky Court of Appeals, November 6, 1883, 5 Ken. L. J. & Rep. 397, it was held error to instruct a jury that a railroad company is bound to the same care of an employee that " a prudent and careful man would take care of his family if placed in a like situation." The court said: "The law has a peculiar regard for human life, and as the business of conducting a railroad subjects it to extraordinary hazard, the general definition of ordinary care does not exhibit that care which the duty of those conducting railroads requires them to observe in its ordinary management. Ordinary care by them is that degree of care which a majority of men of prudent and careful habits would exercise under the same or like circumstances to avoid injury to their own person from the same risks which others undergo in their service or in obedience to their orders, or by reason of the conduct of their hazardous business. But it is going quite too far to require that degree of care which any of such persons would take of 'his family,' placed in like or similar circumstances. For it is against the laws of nature to expect a man of the greatest prudence to take the same care of an adult engaged in the dangerous taken upon himself and agreed to perform with that degree of care upon his own part which ordinarily prudent persons of his class usually take in protecting themselves from danger, as he would of his own family placed in a like predicament. For what would not a husband and father hazard to protect his own family from the ordinary dangers to which a brakesman is exposed. Imagine his horror, himself controlling every movement of the train, were he to see any member of his family engaged in the dangerous and difficult office of coupling the cars. It was not a fair test. It was calculated to transport the jury into sentimental regions in search of the exalted degree of care which ordinary prudence dictates under such circumstances, and opened a wide realm in which the skillful advocate could 'fling the reins to fancy.' It is well that ordinary care, in such cases, should demand the same care that prudent persons take to avoid injury to themselves. But it ought not to be extended to their families, for no prudent man would place his family in every situation into which it might be his or the duty of others to go, although the duty might be attended with more or less danger, or even performed with safety. If railroad managers or agents take the same care of others that prudent and careful men usually take of their own persons in like peril or under similar circumstances, they should be considered as having taken ordinary care." In Batchelor v. Fortescue, Q. B. Div., April 30, 1883, 49 L. T. Rep. (N. S.) 442, K. was the owner of a plot of land, on which excavations were being carried out by F., who had contracted with K. for that purpose. B., who was employed by K. to watch K.'s materials and buildings, was standing under an iron tub in which earth was being raised by F.'s men, when the chain holding the tub broke, and the tub fell on him, thereby causing his death. It was not necessary for B. to stand under the tub to watch the buildings and materials. Held, that B. was a bare licensee upon the spot where he was standing, and that therefore he was subject to all the risks, there being no obligation on F. to take due and reasonable care of him. Smith, J., said: "The judgment of Willes, J., in Indermaur v. Dames, 14 L. T. Rep. (N. S.) 484; 16 id. 292; L. Rep., 1 C. P. 274; 2 id. 311, and the same of Collis v. Seleen, L. Rep. 3 C. P. 495, show what is the position of a bare licensee under circumstances similar to the present. The recent case of Ivay v. Hedges, 9 Q. B. Div. 80, is also very much to the point. In this case the plaintiff, a tenant of apartments, had a license from his landlord to use if he liked a certain leaden roof to dry his clothes on. There was a defect in a rail which was situate upon this roof and which was known to the landlord. The plaintiff went upon the roof for the purpose of removing some linen which was there, when his foot slipped, and the rail being out of repair he fell through to the court-yard below and was injured. It was held that inasmuch as the plaintiff had a mere license to use the roof if he wished, there was no duty upon the defendant to fence it or keep the fence in repair." THIS XLIV AMERICAN REPORTS. HIS volume contains the leading cases of the following: 68, 69 Alabama; 60, 61 California; 49 Connecticut; 67 Georgia; 104, 105 Illinois; 85, 86, 87 Indiana; 59 Iowa; 29 Kansas; 80 Kentucky; 34 Louisiana Annual; 30 Minnesota; 92 New York; 99 Pennsylvania State; 18 South Carolina; 57, 58 Texas; 13 Texas Court of Appeals; 76 Virginia. These embrace every volume of State Reports published up to the hour of going to press. The editor has contributed many notes, the principal of which are: Evidence of similar crimes; malicious prosecution for mere suit; fraud in marriage-con BAIL.- Bail in a criminal case are discharged from liability by the arrest of the principal upon the same charge in the same State by the Federal authorities, and his incarceration in another State. Commonwealth v. Overby (80 Ky. 208), 471. CARRIER. A common carrier is not bound to transport goods at the same rates of charges for all. Ex parte Benson (18 S. C. 38), 564. Railway companies are bound to afford to passengers on long routes easy and safe modes and reasonable time for obtaining food, and safe ingress and egress to and from refreshment stations, whether controlled by the company or by others; and where a passenger sustains injury on returning from such station to the train by want of sufficient light and the removal of the train without notice in his absence, the company is liable. Peniston v. Chicago, St. Louis and New Orleans Railroad Co. (34 La. 777), 444. CIVIL DAMAGE ACT. A wife's right of recovery under the Civil Damage Act is not affected by the fact that she had signed the defendant's petition for a dram-shop license. Jockers v. Borgman (29 Kans. 109), 625. CONTRACT. A railway company may not contract in advance with its employees for the waiver and release of the statutory liability imposed on such companies for negligence of one employee causing injury to another employee without regard to the negligence of the company. Kansas Pacific Railway Company v. Peavey (29 Kans. 169), 630. CRIMINAL LAW. There may be an assault with intent to commit manslaughter. State v. Connor (59 Iowa, 357), 686.—The statute of bigamy prohibits the marriage of any one "having a husband or wife living." The statute of divorce prohibits the remarriage, during the life-time of the complainant, of any person against whom a divorce has been obtained. Held, that one who marries in this State in violation of the latter prohibition is guilty of bigamy. People v. Faber (92 N. Y. 146), 357.—On a trial for murder, the extent of an amputation of one of the prisoner's legs being a material question, it is error to compel the prisoner to exhibit his leg to the jury. Blackwell v. State (67 Ga. 76), 717.-Evidence that the defendant had by similar pretenses, at another time and place, defrauded another Masonic lodge, is inadmissible, because such evidence is never admissible except upon the issue of intent, and here intent is not in issue because the representations were peculiarly within the defendant's knowledge, and if false must have been fraudulently intended. Strong v. State (86 Ind. 208), 292. DEED. — Under a joint conveyance to husband and wife they hold as tenants by the entirety, and the survivor takes the whole estate, notwithstanding the married women's enabling statutes. Bertles v. Nunan (92 N. Y. 152), 361. EVIDENCE. In an action against a railway company for an injury to a horse at a defective highway crossing, evidence of former similar accidents at the same place is inadmissible; and so of evidence that after the accident the company repaired the defect. Hudson v. Chicago and North-western Railroad Company (59 Iowa, 581),692.—In an action of damages for permanent injury to the eyes, the plaintiff having testified, and no medical expert having testified, the court may order the plaintiff to submit to an examination by a competent expert. Atchison, Topeka and Santa Fe Railroad Company v. Thul (29 Kans. 466), 659.—A physician, called on to make a professional examination of a patient, may not be allowed to testify as to his opinion of his health on "general sight," before the examination or any conversation with him. Grattan v. Metropolitan Life Ins. Co. (92 N. Y. 274), 372. LANDLORD AND TENANT. Where a landlord lets a house knowing that the timbers of the privy floor are rotten and unsafe, but conceals the fact from the tenant, and the tenant is injured by the defect, the landlord is liable therefor. Coke v. Gutkese (80❘ Ky. 598), 499. * * * MARRIAGE. A wife procured a divorce in New York for adultery, and the husband was prohibited by the decree from remarrying during her life. The husband afterward remarried in New Jersey, during her life, and returned with that wife and resided in New York, and they had a child born in New York. The New Jersey statute enacts that "all marriages, where either of the parties shall have a former husband or wife living at the time of such marriage, shall be invalid, and the issue thereof shall be illegitimate." The New Jersey statutes do not prohibit remarriage by divorced parties. Held, that the child would inherit in New York. Moore v. Hegeman (92 N. Y. 521),408.— Where a woman contracts marriage while pregnant by another than her husband, and conceals her pregnancy, it is for a jury to determine whether this is such fraud as avoids the marriage. Allen's Appeal (99 Penn. 196), 101. MORTGAGE. A mortgage on an unplanted crop conveys only an equitable title, but this attaches instantly on the planting, and is superior to a second mortgage executed prior to the planting, the second mortgagee having notice of the former mortgage. Mayer v. Taylor (69 Ala. 403), 522. MUNICIPAL CORPORATION. - A city is not responsible for the negligence of its fire department whereby the property of a citizen is destroyed by fire. Robinson v. City of Evansville (87 Ind. 334), 770. -No action lies against a city for a personal injury caused by collision with a rope stretched across a street, by order of the municipal authorities, in order to allow a parade of the fire department. Simon v. City of Atlanta (67 Ga. 618), 739. NEGLIGENCE. - Where a railway passenger is injured by a negligent collision of his train with that of another company, he may maintain an action for the wrong against either company. Wabash, St. Louis & Pacific Railway Company v. Shacklet (105 Ill. 364), 791.-A traveller, knowing the dangerous condition of a highway, is not necessarily negligent in persisting in travelling upon it. Henry County Turnpike Comqany v. Jackson (86 Ind. 111), 274.— In an action against a railroad company for an accident at a crossing, it is error to leave it to the jury to determine whether the omission to have a flagman at the point was negligent. Houghkirk v. President, etc., Delaware, etc, Co. (92 N. Y. 219), 370. NEGOTIABLE INSTRUMENT. The obtaining by the principal of the signature of a surety to a promissory note before delivery to the innocent payee is not an alteration avoiding the note as to. precedent surety. Ward v. Hackett (30 Minn. 150), 187. A promissory note executed in consideration of a father's naming a child after the promisor, and in pursuance of the promisor's agreement that if the child were so named he would provide for its education and support, is on a valid consideration. Wolford v. Powers (85 Ind. 294), 16. NUISANCE. The owner of land has the right to erect small, cheap and movable tenement-houses thereon close to the line of an adjacent owner, and let them to orderly colored tenants, although his avowed purpose is to punish the adjacent owner for refusing to sell him his land at an inadequate price, and to compel him to do so. Falloon v. Schilling (29 Kans. 292), 642.—The mayor of a city, by virtue of his office, may demolish a wooden dwelling-house in a city, which by reason of the combustible nature of its materials and the disorderly character of its occupants endangers the lives, health and property of the neighboring residents. Fields v. Stokley (99 Penn. 306), 109. REPLEVIN. An execution issued to enforce a judgment for the return of property in replevin, or its value, may not be resisted upon the ground that the property has been destroyed by the act of God. De Thomas v. Witherby (61 Cal. 92), 542. |