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NOTES OF CASES.

between collections generally and collections of a particular class, seems clearly defined.

It is only CURIOUS question of statutory construction upon this assumption that any meaning can be given

arose in United States v. Sixty-five Terra-Cotta to the later clause, and that effect can be given to Fases, United States Circuit Court, Southern Dis- all parts of the section. No collections of antiquity trict of New York, November 16, 1883, 18 Fed. could be exempt when 'imported specially and not Rep. 508. Section 2505 of the Revised Statutes de- for sale,' if all collections, under all circumstances, clares that among other articles, " cabinets of coins, were already exempt. Upon any other construction medals, and all other collections of antiquities," it would appear that Congress, after exempting all and "collections of antiquity especially imported, antiquities, had proceeded in the same section of a and not for sale," shall be exempt from duty. Held, law to revoke what it had already declared, by to give effect to the second clause, only such collec- exempting them only upon specified conditions. tions are embraced in the first clause as are ejusdem The limitation or exception is in the nature of a generis with coins and medals. Wallace, J., said:

proviso, concerning which it is affirmed that when * The suit was brought to condemn certain terra- it is repugnant to the main body of the act, the cotta vases, Etruscan vases, stone images, spears, proviso shall stand and be held a repeal of the purlances, and other articles, because of their alleged view, as it speaks the last intention of the makers. fraudulent entry upon importation by the owner to Sedg. St. Law, 62.” avoid the payment of duties. The evidence, in connection with the admissions of the pleadings, In Louisville and Nashville R. Co. v. McCoy, tended to show that the imported articles were a Kentucky Court of Appeals, November 6, 1883, 5 collection of antiquities imported by one De Morgan Ken. L. J. & Rep. 397, it was held error to instruct for sale, but that he represented in the invoice used a jury that a railroad company is bound to the same upon the entry of the articles that they were a pri- care of an employee that “a prudent and careful vate collection, and were not imported for sale, and man would take care of his family if placed in a like that the representation was false, in that they were situation.” The court said: “The law has a peculiar imported to be sold. The judge ruled upon the regard for human life, and as the business of contrial that the imported articles were exempt from ducting a railroad subjects it to extraordinary duty, and that as they were not dutiable there was hazard, the general definition of ordinary care does Do legal fraud in the attempt to evade the payment not exbibit that care which the duty of those conof duties, and he therefore directed a verdict for ducting railroads requires them to observe in its the owner.

The District judge treated ordinary management. Ordinary care by them is the question as though Congress in one act had that degree of care which a majority of men of exempted all collections, of antiquities from duty, prudent and careful habits would exercise under the and in a subsequent act, which was designed to ex- same or like circumstances to avoid injury to their tend the free-list, had exempted all such collections own person from the same risks which others when specially imported and not for sale. If this undergo in their service or in obedience to their were a correct view, it would seem difficult to main- orders, or by reason of the conduct of their hazardtain that the later act was not a repeal of the former. ous business. But it is going quite too far to reA later statute, so repugnant to a former one that quire that degree of care which any of such persons the two cannot stand together, repeals it by implica- would take of his family,' placed in like or similar tion. The two here could not possibly be recon- circumstances. For it is against the laws of nature ciled; because, if the former stood, the latter could to expect a man of the greatest prudence to take the have no operation whatever. If every collection of same care of an adult engaged in the dangerous antiquities was already exempt, the limitation pre-employment of brakesman, which he has voluntarily scribed by the later act had nothing to which it taken upon himself and agreed to perform with that could attach. Some effect must have been intended degree of care upon his own part which ordinarily and must be given to the language employed. It prudent persons of his class usually take in prowill not do to say it was meaningless, or that it was tecting themselves from danger, as he would of his employed inadvertently, simply because it conflicts own family placed in a like predicament. For what with an entire law, or because it may withdraw a would not a husband and father hazard to protect particular case from the general operation of the act. his own family from the ordinary dangers to

* * If there had been in the section only the which a brakesman is exposed. Imagine his horror, single description of antiquities under the classifica- himself controlling every movement of the train, tion of cabinets of coin, medals, and all other were he to see any member of his family engaged collections of antiquities,' it might be forcibly urged in the dangerous and difficult office of coupling the that only such collections are exempt as are cars. It was not a fair test. It was calculated to assimilated to coins and medals in their general transport the jury into sentimental regions in search characteristics. * * * But when, following this of the exalted degree of care which ordinary pruparticular description, the same section subsequently dence dictates under such circumstances, and opened describes collections of antiquities comprehensively, a wide realm in which the skillful advocate could and declares that they are to be exempt condition- 'fling the reins to fancy.' It is well that ordinary ally, the distinction in the contemplation of Congress, care, in such cases, should demand the same care

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duced. At the beginning of the term, there were delivered by Hon. John G. Milburn of Buffalo. eleven hundred and fifty-nine cases pending on the The prize essay will be read. A report will be made general docket; there are now eight hundred and of the visit of the Lord Chief Justice of England, CU two, showing a reduction of three hundred and fifty- and other interesting exercises will be held. A

A The court disposed of three hundred large attendance of the bar of the State is desired and twenty-six, and the commission, which was and expected. organized April seventeenth, two hundred and forty-nine cases on the general docket, making a

Quoting our recent remarks about the judges total of five hundred and seventy-five. The court disposed of three hundred and eighty- Reporter says: "The suggestion about uniformity

wearing gowns, the Kentucky Laro Journal and ca three motions and the commission thirty-six, a total in dress is a good one; not that such a thing can of four hundred and nineteen.” But of this number supply the want of learning, dignity, or any of the of cases one hundred and thirteen were struck from

more substantial qualities that make a good judge, the docket. This is certainly a good work for a but a certain degree of formalism is becoming to year, but it is not so great a work as that of our such high officers, and is calculated to inspire and Court of Appeals for the same period.

preserve that respect for the bench to which it is

entitled.” We find very little opposition to the A correspondent informs us that we are in error

project. Most of the influential newspapers are in in stating that our Court of Appeals is the only dress for the Kentucky judges, we should say, for

favor of it. A gown would be a particularly safe ultimate court in this country that has kept up with they seem to be a mark for the insane assassin's its business for twelve years, and that “the

pistol. 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

The case of Pullman Palace Car Co. v. Gardner, among the most interesting. We believe it disposes post, is well worth reading, especially for the vigorof more causes in a year than our court, but we

ous and racy charge of the trial judge. The judge suspect that the magnitude and importance of the

raises a very interesting query as to what constitutes questions involved is very much less.

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 The same correspondent offers the following it would be by an onslaught, open violence on the suggestion for relieving the calendar of the Court In such cases it has been held that the conof Appeals: “That the cases be submitted on the ductors are bound to protect, not only the persons printed statements of fact and brief of authorities, of passengers, but also their property to a reasonable without oral argument except where the judges extent, as for instance, if some boy, fifteen years of themselves may ask for it, or special causes may be age, with a wooden gun in his hand, should come shown. That there would be a great saving of time in to rob a car, as I believe it is said they do out which is now virtually lost in listening to a mere

west, and the passengers should crawl under their repetition or amplification of what is already in the seats, and the conductor and train hands run away, hands of the court, need not be argued.” We when perhaps if they had stood their ground they believe that oral arguments are generally very could bave prevented it, the railroad company useful; indeed, in a majority of cases, indispensable, might be responsible if the jury should not find under and that they save time. Our judges do not like the circumstances that the passengers ought to have many submissions. The oral argument points to defended themselves. We used to ride around in the vital questions, and dispenses with a vast stage coaches; if robbed while in them, the comamount of reading. As practiced in our court, oral pany being under no obligation to carry a guard, arguments seldom extend to more than an hour on

was not responsible for the robbery, although you å side, and are generally much shorter. Such might go to sleep, and they knew perfectly well you arguments must be much more satisfactory to the would go to sleep, or ought to suppose you would, profession, and thus to the bench, than submissions, for a man could not ride half a dozen days or nights for the unsuccessful lawyer cannot plead that the

without going to sleep; but in the case of a sleepjudges may have overlooked a vital point, or have ing car company the great convenience and induceneglected to read the case and arguments sufficiently ment held out to passengers is that they will give to apprehend the gist of the matter. We should them a comfortable night's rest. They notify them regret to see the rule of submission without oral they will make them pay for it, and say to them you argument adopted.

may go to sleep.” This is rather satirical. The

difficulty in the supposed case is that the passengers The annual meeting of the New York State Bar are not sure that the gun is wooden, and the robber Association will be held in this city, Tuesday 8th will not let them examine. " Quaker” guns kept January, at 11 o'clock A. M. The annual meetings our army at bay some months in front of Manassas of all the standing committees will be held in this Junction, in the civil war, and what better can be city on the 7th January. The oration will be expected of railway passengers?

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NOTES OF CASES.

between collections generally and collections of a particular class, seems clearly defined.

It is only CURIOUS question of statutory construction upon this assumption that any meaning can be given

arose in United States v. Sixty-five Terra-Cotta to the later clause, and that effect can be given to Vases, United States Circuit Court, Southern Dis- all parts of the section. No collections of antiquity trict of New York, November 16, 1883, 18 Fed. could be exempt when 'imported specially and not Rep. 508. Section 2505 of the Revised Statutes de- for sale,' if all collections, under all circumstances, clares that among other articles, “ cabinets of coins, were already exempt. Upon any other construction medals, and all other collections of antiquities," it would appear that Congress, after exempting all and “collections of antiquity especially imported, antiquities, had proceeded in the same section of a and not for sale,” shall be exempt from duty. Held, law to revoke what it had already declared, by to give effect to the second clause, only such collec- exempting them only upon specified conditions. tions are embraced in the first clause as are ejusdem The limitation or exception is in the nature of a generis with coins and medals. Wallace, J., said: proviso, concerning which it is affirmed that when "The suit was brought to condemn certain terra- it is repugnant to the main body of the act, the cotta vases, Etruscan vases, stone images, spears, proviso shall stand and be held a repeal of the purlances, and other articles, because of their alleged view, as it speaks the last intention of the makers. fraudulent entry upon importation by the owner to Sedg. St. Law, 62." avoid the payment of duties. The evidence, in connection with the admissions of the pleadings, In Louisville and Nashville R. Co. v. McCoy, tended to show that the imported articles were a Kentucky Court of Appeals, November 6, 1883, 5 collection of antiquities imported by one De Morgan Ken. L. J. & Rep. 397, it was held error to instruct for sale, but that he represented in the invoice used a jury that a railroad company is bound to the same upon the entry of the articles that they were a pri- care of an employee that “a prudent and careful vate collection, and were not imported for sale, and man would take care of his family if placed in a like that the representation was false, in that they were situation.” The court said: “The law has a peculiar imported to be sold. The judge ruled upon the regard for human life, and as the business of contrial that the imported articles were exempt from | ducting a railroad subjects it to extraordinary duty, and that as they were not dutiable there was hazard, the general definition of ordinary care does no legal fraud in the attempt to evade the payment not exhibit that care which the duty of those conof duties, and he therefore directed a verdict for ducting railroads requires them to observe in its the owner.

The District judge treated ordinary management. Ordinary care by them is the question as though Congress in one act had that degree of care which a majority of men of exempted all collections• of antiquities from duty, prudent and careful habits would exercise under the and in a subsequent act, which was designed to ex- same or like circumstances to avoid injury to their tend the free-list, had exempted all such collections own person from the same risks which others when specially imported and not for sale. If this undergo in their service or in obedience to their were a correct view, it would seem difficult to main- orders, or by reason of the conduct of their hazardtain that the later act was not a repeal of the former. ous business. But it is going quite too far to reA later statute, so repugnant to a former one that quire that degree of care which any of such persons the two cannot stand together, repeals it by implica- would take of his family,' placed in like or similar tion. The two here could not possibly be recon- circumstances. For it is against the laws of nature ciled; because, if the former stood, the latter could to expect a man of the greatest prudence to take the have no operation whatever. If every collection of same care of an adult engaged in the dangerous antiquities was already exempt, the limitation pre-employment of brakesman, which he has voluntarily scribed by the later act had nothing to which it taken upon himself and agreed to perform with that could attach. Some effect must have been intended degree of care upon his own part which ordinarily and must be given to the language employed. It prudent persons of his class usually take in prowill not do to say it was meaningless, or that it was tecting themselves from danger, as he would of his employed inadvertently, simply because it conflicts own family placed in a like predicament. For what with an entire law, or because it may withdraw a would not a husband and father hazard to protect particular case from the general operation of the act. his own family from the ordinary dangers to

If there had been in the section only the which a brakesman is exposed. Imagine his horror, single description of antiquities under the classifica- himself controlling every movement of the train, tion of cabinets of coin, medals, and all other were he to see any member of his family engaged collections of antiquities,' it might be forcibly urged in the dangerous and difficult office of coupling the that only such collections are exempt as

It was not a fair test. It was calculated to assimilated to coins and medals in their general transport the jury into sentimental regions in search characteristics.

* But when, following this of the exalted degree of care which ordinary pruparticular description, the same section subsequently dence dictates under such circumstances, and opened describes collections of antiquities comprehensively, a wide rcalm in which the skillful advocate could and declares that they are to be exempt condition-'fling the reins to fancy.' It is well that ordinary ally, the distinction in the contemplation of Congress, care, in such cases, should demand the same care

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that prudent persons take to avoid injury to them- cealed pregnancy; contributory negligence — travelselves. But it ought not to be extended to their ling on defective highway; abatement of public families, for no prudent man would place his family nuisance; devise for life with power of disposal. in every situation into which it might be his or the The following are some of the most interesting duty of others to go, although the duty might be attended with more or less danger, or even per- AGENCY. - An agent having the care of real formed with safety. If railroad managers or agents estate is not liable for an injury sustained by a third take the same care of others that prudent and careful person by reason of the agent's neglect to keep the men usually take of their own persons in like peril same in safe repair. Delaney v. Rochereau (34 La. or under similar circumstances, they should be con- Ann. 1123), 456. sidered as having taken ordinary care."

ATTORNEY. — The attorney in a cause is presumptively liable for sheriff's fees on writs delivered

by him for service. Heath v. Bates (49 Conn. 342), In Batchelor v. Fortescue, Q. B. Div., April 30, 234. 1883, 49 L. T. Rep. (N. S.) 442, K. was the owner BAIL. - Bail in a criminal case are discharged of a plot of land, on which excavations were being from liability by the arrest of the principal upon carried out by F., who had contracted with K. for the same charge in the same State by the Federal that purpose. B., who was employed by K. to authorities, and his incarceration in another State. watch K.'s materials and buildings, was standing Commonwealth v. Overby (80 Ky. 208), 471. under an iron tub in which earth was being raised CARRIER. A common carrier is not bound to by F.'s men, when the chain holding the tub broke, transport goods at the same rates of charges for all and the tub fell on him, thereby causing his death. Ex parte Benson (18 S. C. 38), 564. Railway comIt was not necessary for B. to stand under the tub panies are bound to afford to passengers on long to watch the buildings and materials. Held, that B. routes easy and safe modes and reasonable time for was a bare licensee upon the spot where he was obtaining food, and safe ingress and egress to and standing, and that therefore he was subject to all from refreshment stations, whether controlled by the risks, there being no obligation on F. to take the company or by others; and where a passenger due and reasonable care of him. Smith, J., said: sustains injury on returning from such station to "The judgment of Willes, J., in Indermaur v. Dames, the train by want of sufficient light and the removal 14 L. T. Rep. (N. S.) 484; 16 id. 292; L. Rep., 1 C. of the train without notice in his absence, the comP. 274; 2 id. 311, and the same of Collis v. Seleen, pany is liable. Peniston v. Chicago, St. Louis and L. Rep. 3 C. P. 495, show what is the position of a New Orleans Railroad Co. (34 La. 777), 444. bare licensee under circumstances similar to the CIVIL DAMAGE Act. — A wife's right of recovery present. The recent case of Ivay v. Hedges, 9 Q. under the Civil Damage Act is not affected by the B. Div. 80, is also very much to the point. In fact that she had signed the defendant's petition this case the plaintiff, a tenant of apartments, had for a dram-shop license. Jockers v. Borgman (29 a license from his landlord to use if he liked a Kans. 109), 625. certain leaden roof to dry his clothes on. There CONSTITUTIONAL LAW.— A statute prescribing for was a defect in a rail which was situate upon this the offense of living in adultery or fornication, when roof and which was known to the landlord. The committed by a negro and white person together, a plaintiff went upon the roof for the purpose of re- different punishment from that prescribed when the moving some linen which was there, when his foot offense is committed by two white persons or two slipped, and the rail being out of repair he fell negroes, is not unconstitutional. Pace v. State (69 through to the court-yard below and was injured. Ala. 231), 513. It was held that inasmuch as the plaintiff had a CONTRACT. — A railway company may not conmere license to use the roof if he wished, there was tract in advance with its employees for the waiver no duty upon the defendant to fence it or keep the and release of the statutory liability imposed on fence in repair.”

such companies for negligence of one employee

causing injury to another employee without regard XLIV AMERICAN REPORTS.

to the negligence of the company. Kansas Pacific

Railway Company v. Peavey (29 Kans. 169), 630. THIS volume contains the leading cases of the CRIMINAL LAW. — There may be an assault with

following: 68, 69 Alabama; 60, 61 California; intent to commit manslaughter. State v. Connor 49 Connecticut; 67 Georgia; 104, 105 Illinois; 85, (59 Iowa, 357), 686.—The statute of bigamy prohibits 86, 87 Indiana; 59 Iowa; 29 Kansas; 80 Kentucky; the marriage of any one “having a husband or wife 34 Louisiana Annual; 30 Minnesota; 92 New York; living.” The statute of divorce prohibits the re99 Pennsylvania State; 18 South Carolina; 57, 58 marriage, during the life-time of the complainant, Texas; 13 Texas Court of Appeals ; 76 Virginia. of any person against whom a divorce has been These embrace every volume of State Reports obtained. Held, that one who marries in this State published up to the hour of going to press. The in violation of the latter prohibition is guilty of editor has contributed many notes, the principal of bigamy. People v. Faber (92 N. Y. 146), 357.—On 8 which are: Evidence of similar crimes; malicious trial for murder, the extent of an amputation of one prosecution for mere suit; fraud in marriage — con- of the prisoner's legs being a material question, it

Tars

is error to compel the prisoner to exhibit his leg to MORTGAGE. A mortgage on an unplanted crop the jury. Blackwell v. State (67 Ga. 76), 717.-Evi- conveys only an equitable title, but this attaches dence that the defendant had by similar pretenses, instantly on the planting, and is superior to a at another time and place, defrauded another second mortgage executed prior to the planting, Msasonic lodge, is inadmissible, because such evi- the second mortgagee having notice of the former dence is never admissible except upon the issue of mortgage. Mayer v. Taylor (69 Ala. 403), 522. intent, and here intent is not in issue because the MUNICIPAL CORPORATION. – A city is not responrepresentations were peculiarly within the defend-sible for the negligence of its fire department ant's knowledge, and if false must have been whereby the property of a citizen is destroyed by fraudulently intended. Strong v. State (86 Ind. 208), fire. Robinson v. City of Evansville (87 Ind. 334), 770. 292.

-No action lies against a city for a personal injury DEED. — Under a joint conveyance to husband caused by collision with a rope stretched across a and wife they hold as tenants by the entirety, and street, by order of the municipal authorities, in the survivor takes the whole estate, notwithstand- order to allow a parade of the fire department. ing the married women's enabling statutes. Bertles Simon v. City of Atlanta (67 Ga. 618), 739. v. Nunan (92 N. Y. 152), 361.

NEGLIGENCE. — Where a railway passenger is inEVIDENCE. — In an action against a railway com- jured by a negligent collision of his train with that pany for an injury to a horse at a defective highway of another company, he may maintain an action for crossing, evidence of former similar accidents at the wrong against either company. Wabash, St. the same place is inadmissible; and so of evidence Louis & Pacific Railway Company v. Shacklet (105 that after the accident the company repaired the Ill. 364), 791.-A traveller, knowing the dangerous defect. Hudson v. Chicago and North-western Rail condition of a highway, is not necessarily negligent road Company (59 Iowa, 581),692.—In an action of in persisting in travelling upon it. Henry County damages for permanent injury to the eyes, the Turnpike Company v. Jackson (86 Ind. 111), 274.– plaintiff having testified, and no medical expert in an action against a railroad company for an having testified, the court may order the plaintiff to accident at a crossing, it is error to leave it to the submit to an examination by a competent expert. jury to determine whether the omission to have a Atchison, Topeka and Santa Fe Railroad Company v. flagman at the point was negligent. Houghkirk v. Thul (29 Kans. 466), 659.—A physician, called on to President, etc., Delaware, etc, Co. (92 N. Y. 219), 370. make a professional examination of a patient, may not

NEGOTIABLE INSTRUMENT. The obtaining by be allowed to testify as to his opinion of his health the principal of the signature of a surety to a on “general sight,” before the examination or any promissory note before delivery to the innocent conversation with him. Grattan v. Metropolitan payee is not an alteration avoiding the note as to Life Ins. Co. (92 N. Y. 274), 372.

precedent surety. Ward v. Hackett (30 Minn. 150), HOMESTEAD. - A widow's homestead right cannot 187.-A promissory note executed in consideration be barred by ante-nuptial contract. McMahill v. of a father's naming a child after the promisor, and McMahill (105 Ill. 596), 819.

in pursuance of the promisor's agreement that if the LANDLORD AND TENANT. — Where a landlord lets child were so named he would provide for its edua house knowing that the timbers of the privy floor cation and support, is on a valid consideration. are rotten and unsafe, but conceals the fact from Wolford v. Powers (85 Ind. 294), 16. the tenant, and the tenant is injured by the defect, NUISANCE. — The owner of land has the right to the landlord is liable therefor. Coke v. Gutkese (80 erect small, cheap and movable tenement-houses Ky. 598), 499.

thereon close to the line of an adjacent owner, and MARRIAGE. — A wife procured a divorce in New let them to orderly colored tenants, although his York for adultery, and the husband was prohibited avowed purpose is to punish the adjacent owner by the decree from remarrying during her life. for refusing to sell him his land at an inadequate The husband afterward remarried in New Jersey, price, and to compel him to do so. Falloon v. during her life, and returned with that wife and Schilling (29 Kans. 292), 642.—The mayor of a city, resided in New York, and they had a child born in by virtue of his office, may demolish a wooden New York. The New Jersey statute enacts that dwelling-house in a city, which by reason of the "all marriages, where either of the parties shall combustible nature of its materials and the disorhave a former husband or wife living at the time of derly character of its occupants epdangers the lives, such marriage, shall be invalid, * and the health and property of the neighboring residents. issue thereof shall be illegitimate.” The New Fields v. Stokley (99 Penn. 306), 109. Jersey statutes do not prohibit remarriage by REPLEVIN. An execution issued to enforce a divorced parties. Hell, that the child would inherit judgment for the return of property in replevin, or in New York. Moore v. Hegeman (92 N.Y. 521),408.- its value, may not be resisted upon the ground that Where a woman contracts marriage while pregnant the property has been destroyed by the act of God. by another than her husband, and conceals her De Thomas v. Witherby (61 Cal. 92), 542. pregnancy, it is for a jury to determine whether SLANDER AND LIBEL. — No action lies for a libel this is such fraud as avoids the marriage. Allen's published only by writing and mailing it to the Appeal (99 Penn. 196), 101.

plaintiff. Spaits v. Poundstone (37 Ind. 522), 773.

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