페이지 이미지
PDF
ePub

as

Marshall, upon whose great names I relied for support, let, with a request to notice, which from motives of and from whose opinions I quoted as sustaining my gallavtry we cannot pass over. It is entitled: “Naposition. Lord Mansfield held, that as there were no tional Citizen Tract, No. 1. Who planned the Tennesregular courts of judicature in Nova Scotia, and “ see Campaign of 1862? or Anna Ella Carroll vs. Ulysses Capt. Gambier might never go there again," the venue S. Grant: a few generally unknown facts in regard to could be laid in England, notwithstanding the action our Civil War. By Matilda Joslyn Gage." The subwas local. So, it may be argued, that as Mr. Middle- stance of this pamphlet is that the plan and suggestion ton or Mr. De Courcy might never again go to New of that campaign, executed by Gen. Grant, were made Jersey, jurisdiction should be taken of the case. But by Anna Matilda, then “a young girl of Maryland.” he went further and said, that in respect to the ques- Her“ bright wit" and "transcendent military genius" tion of jurisdiction, the real and substantial distinc- taught it to her, and she laid it before the war departtion was between actions in rem and actions for dam- ment, and they foully adopted it without giving her ages merely; but he said there was also a formal dis- credit, and Gon. Grant jumped into fame on the exetinction, arising out of the different modes of trial, cution of it. Pity that Anna Matilda was too modbetween actions transitory and local. The doctrine in est to sign her name to the original communication. question arose out of this formal technical distinction, Here is a second Joan d'Arc, and a conclusive answer and not out of a real and substantial distinction. Chief to the Evening Post's standing query whether woman Justice Marshall, after passing a high encomium upon ever invented any thing. Anna Matilda prints firstthe great judicial abilities of Lord Mansfield, admits class recommendations. Chief Justice Chase thanks the soundness of his argument, and says that he him- her for her "great and patriotic services,” without self could never perceive any reason for this doctrine, specifying them. Gerritt Smith calls her the country's other than a technical one, but that sitting there upon “wise and faithful and grandly useful servant," withthe Circuit, he could not venture to disregard it. out saying in what employment. Reverdy Johnson

Mr. Cowles says, that the Court of Appeals and the “never beard it doubted" that she was “the first to Supreme Court have settled the law upon this subject. advise the campaign on the Tennessee." Nor more did This I concede, but the question is, whether those de- we. Ben Wade says her services were so great as to cisions are founded upon principle and sustained by “throw a shadow over the reputation of some of our reason: whether they are founded upon a rock or upon would-be-great men.” No doubt, if she did any thing the sand. I hope Mr. Cowles does not approve of the at all. Cassius M. Clay says her case stands out unique, decision made by the former court in Telegraph for she “towered above all our generals in military Co. v. Middleton; that an injury to telegraph poles genius." But Ben Wade is her right bower, for she situated in a public highway can only be committed has five testimonials from him. Old Ben never could by an entry upon the “realty," and that an action of resist a woman. As for the rest, we kuow of no similar trespass quare clausum is the proper form of action tributes to genius, except in the case of the newspaper when forms of action prevailed. It is too much to ex- press on the “Sweet singer of Michigan." But why is pect of an overburdened court to perform, not only its all this thus? Why, Matilda Ann wants a pension, own duties, but also the duties of counsel.

and Congress is so mean it will not grant it. Now our I may say, with entire truth, and without claiming advice to Matilda Ann is to drop the pension notion extraordinary intelligence, that I knew, or supposed I and to strike for the presidency. We hereby nomiknew, the intent with which Mr. Throop made the

nate her for 1884. (N. B. We shall not expect any thing provision for the place of trial of actions relating to more than the attorney-generalship.) real property situated in a foreign State. It was to provide for the place of trial of certain equitable ac

The Ohio Law Journal is a new legal periodical, pubtions relating to real property, of which the Court of lished at Columbus, weekly, in quarto of eight pages. Chancery claimed jurisdiction.

Our neighbor starts out robustly in the matter of legal The question whether an action is local or transitory criticism, announcing that the conclusions reached in is to be determined, not by the common-law rules of

Ducker v. State, ante, 182, Davis v. Clinton Water venue, but by the rules prescribed by the Code. Au

Works, ante, 124, and Kincaid v. Ilardin County, 21 action for injury to real property (other than waste or

Alb. L. J. 462, "are epochs in the law, to say the least," nuisance) must be tried in the county in which one of and that the first is wrong.

We fail to see any thing the parties resided at the commencement of the ac

novel or startling in the last two, and think them right. tion, and is not required to be tried in the county | The first is certainly debatable. We wish the new wherein the land is situated; it is therefore a transi- | enterprise all the success imaginable, but it must“ go tory action; and being an action transitory, it makes light on the judiciary at the outset. The Amerino difference whether the land is situated in this or in

can Law Review for September contains a leading aranother State, if the case is one of which jurisdiction ticle by William Green, ou Stare Decisis, and one on can be taken. Besides, the Code expressly provides, | American Civil Code, by George Merrill. The Virthat where the land is situated without the State, the ginia Law Journal for September has a leading article action must be tried in the county where one of the on Patrick Henry Aylett. parties reside -- that is, if it can. But I lay no stress upon the mere words of the Code. For that would be a strange doctrine to hold, that because no place of

Mr. Lillivick did not think much of the French trial has been designated, no jurisdiction or cognizance langwidge.” We do not entertain a similar contempt can be taken of an action.

for the Italian, and the struggles of our learned and Lord Mansfield's broad and comprehensive mind saw

esteemed contemporary, the Rivista Penale, of Florthe question in its true light; he met it fairly, and

ence, with our language, are entitled to praise. We made a precedent which deserves to be followed.

said, some time ago, “In the New Jersey Legislature F. P. M. there is a spasm concerning capital punishment.” The

Rivista translates this thus: “ Che nel Corpo Legisla

tivo dello Stato di New Jersey v'e grande fervore NOTES.

(spasm.'')-- A lawyer in Counecticut has discovered a

new aud neat way of aveuging himself on an editor who E are in the habit of receiving a great many published offensive articles against him. He did not

pamphlets which are not pertinent to the law, cane, cowhide, shoot, stab, challenge, or suo him, but and which we therefore do not notice in these col- he invaded his printing shop and pi'd his forms and umns. But there is now lying before us such a pamph

WE

cases,

[ocr errors]

.

The Albany Law Journal.

that the constant practice would be improper. The

Times says: “To say that a barrister should never ALBANY, SEPTEMBER 18, 1880.

appear in a court presided over by his father may be unreasonable. But we most emphatically con

demn the practice of barristers adopting a court in CURRENT TOPICS.

which to practice over which their fathers do pre

side or may preside alone.” And the Journal says: N a supplement to the Pacific Coast Law Journal,

“This appearance is not of sufficient importance to

be taken into account in ordinary cases; but still, if discharge of Dennis Kearney by the Supreme Court

a son attach himself constantly to the court of his of California. He says the cases “universally hold father as a Queen's counsel in equity attaches himthat after judgment in a criminal case of a court of self to a vice-chancellor, it must be admitted that competent jurisdiction, the prisoner cannot be dis

an impropriety is committed.” The difficulty in the charged upon habeas corpus." This statement must

case is four-fold: first, that a judge will always be be supplemented by the condition, “and having ju presumed by the pulace to lean in favor of his risdiction to render the judgment under some cir

son; second, that the son will get business from the cumstances." The cumulative sentences in the force of this presumption; third, that the judge Tweed case, and the re-sentence after expiration of will unconsciously be biased in his favor; or fourth, the first sentence in the Lange case, were reviewed that the judge will do his son's client injustice from upon habeas corpus by the Court of Appeals of this the fear of such bias. However pure, the judge State and the Federal Supreme Court respectively. and the son will always stand in danger. We think 60 N. Y. 559; S. C., 19 Am. Rep. 211; 18 Wall.

it would be better for everybody that a judge should 175. In the former the court said, in substance:

read Chief Justice Ryan's remarks on nepotism, and “ Jurisdiction of the person of the prisoner and of should decline to hear a cause in which his son is the subject-matter are not alone conclusive, but the counsel or attorney. If we were a judge, and had jurisdiction of the court to render the particular

a son who insisted on appearing before us as counjudgment is a proper subject of inquiry; and while sel, we should insist on disappearing. the court or officer cannot, ypon return to the writ, go behind the judgment and inquire into alleged errors and irregularities preceding it, the question is It is stated that a good old Irish gentleman lately presented and must be determined whether, upon

landed at New York with his five sons, all dressed the whole record, the judgment was warranted by in knee breeches and worsted stockings, being law, and was within the jurisdiction of the court.” driven from their native land by a tyrannical governIn the latter the court observe: “It is no answer to ment which insisted on vaccinating them against say that the court had jurisdiction of the person of their will. There is a statute in this State for the the prisoner, and of the offense, under the statute. vaccination of children as a condition of admission It by no means follows that these facts make valid, to the public schools; but our emigrant had probahowever erroneous it may be, any judgment the bly learned that it is not enforced, or his children court may render in such a case." The American had already graduated. There are also certain proLaw Review, in speaking of the Kearney decision, visions for vaccination at quarantine, but from these oracularly says: “Set it down to the account of an he probably did not stand in danger. The school elective judiciary.”

law might well be added to our chapter of dead

letter laws. We are reminded of this topic by the The London Law Times says: “An incident in recent issue of a pamphlet Report of Laws, Provisthe Bristol County Court raises a question which we ions and Methods for securing general Vaccination think is of the utmost moment to the bench and the throughout the Country, by Elisha Harris, M. D., bar. A son of the judge appeared as counsel be- secretary American Public Health Association. This fore him, and the counsel on the other side declined report says: “In the State of New York, a compulto go on with the case, as we gather, on that ground sory statute has for eleven years remained a dead alone. We think the judge was wrong in suggest- letter in the general statutes. It was made applicaing that this step could in any sense be an insult to ble to every school district in the State, and was him.” The Law Journal says, on the same incident: left to execute itself. It has not been applied in a “In the United States the impression has taken so town or district, and has the present autumn (1875) deep a hold that an attempt has actually been made been fanned into life in a single small city, only to to pronounce a father disqualified, on the ground of discover its utter inadequacy, for it reposes in interest, to try a case in which his son is engaged. school-boards the duty of providing for and conSuch views of the situation are, it is needless to say, ducting public and mandatory vaccination, and of altogether without foundation. Judges' sons can- assessing the cost thereof upon the tax payers." A not be ostracised from the bar because their fathers similar old law in Massachusetts was long ago rewere eminent lawyers before them. We do not for pealed, “and the statute in New York requiring the a moment believe that a single case on record has certified and registered vaccination of all pupils in been decided in favor of a particular party because the public schools has remained a dead letter, exthat party happened to be represented by the judge's cept in so far as the sanitary and school authorities, son.” But both journals agree in the conclusion acting together in the cities of New York, Brook

VOL. 22.- No. 12.

The ques

lyn, Elmira, and Rochester, have secured a partial represents the bulk of the civil causes, and it incompliance with the statute." The Scotch, it cludes 318 equity actions, 115 admiralty actions, seems, are the most vaccinated of any people, being and 575 actions sent from the high court of justice. perhaps thereto incited by their traditional cutane- The city of New York alone supplies about that ous prompting. Dr. Harris says “the cities of New number of causes annually, in the Supreme, SupeYork and Providence vie with each other in the ef- rior, Common Pleas, and Marine Court. We wish fort to secure the vaccination of all their young that some of our London contemporaries would supchildren,” but Providence has the advantage of a ply us with statistics showing the number of judiperfect registration of births, obtained by canvass- cial officers and the amount of litigated business in ers, and gives gratuitous vaccination every Saturday. England, and we would then take pains to collect As to compulsion, he observes: “If vaccination is the like here. an unqualified blessing only when skillfully administered; if prejudice and resistance against it are the

The Albany Times says: “The attention of Gov. outcome of faultiness and indiscretion in the appli-Cornell has been called to the case of Harriet Mercation of it; and if the universal and almost unex

rihew, recently sentenced to Sing Sing prison for ceptional vaccination of the entire population in any

life for poisoning her husband in Lewis county. On State or city can be secured by means of special ex

being taken to Sing Sing she was refused admitpertness and tact of skillful medical and sanitary

tance, no female prisoners having been received officers, then a resort to legal prosecutions certainly

there since the passage of the law of 1877 directing should be only a dernier resort for overcoming any

the removal of all female prisoners from that prison particular wanton resistance to the law. Experi

to a penitentiary. The woman was taken back to ence warrants the conclusion that excepting at the

the Lewis county jail, where she now is. times when small-pox is invading a community, and

tion raised is as to how she can be resentenced; in the rare instances of wanton recklessness, actual

whether the court can reconvene itself, or whether compulsion by legal proceedings, by penalties, etc.,

the Governor must issue a proclamation reconvening may not be expedient, and that even the mandatory it. The Governor bas referred the matter to the language of compulsion is unnecessary; for in the attorney-general and the judges passing the senfew persons, and the extremely few parents, who ob- tence, for their opinion.” It would seem that all stinately resist and scorn the offer of vaccination that is necessary is to send the prisoner to another for themselves or their families, such abnormal and prison where they will hospitably receive her. The vicious obstinacy is made angrily uncontrollable by specification of a particular prison is not necessary the bare assertion of force and authority.”

to a valid sentence, at common law or under our statutes. This is settled in Weed v. People, 31 N. Y.

465. “The law determines the prison, and the “A writer for the New York Graphic publishes a court have no authority to incarcerate the prisoner computation indicating American expenditure for in any other." The specification of Sing Sing judicial services to be, in the aggregate, larger than prison was therefore mere surplusage, and can be that of England. Thirty-four judges discharge the disregarded, and the statutes will determine where law business of England and Wales, at an aggregate

the lady should go. There is no need of a new sencost of less than $1,000,000, the population served tence. being about 25,000,000; while New York State alone employs over 450 judicial officers, at a com- The courts have enjoined a fiend in Pennsylvania, pensation of more than $1,000,000, to administer who proposed to introduce “ memories of the Pijustice to a population of 5,000,000 people. Ex- rates of Penzance,” into the repertory of the domespense per capita in the British kingdom less than tic piano and the itinerant hand organ. The origifour cents; in New York, over twenty-five cents. nal “Pirates” is in manuscript, not published and Justice costing five times more in free New York not copyrighted, and the heartless man in question than in monarchical England.” Nothing can be published snatches of it, from recollection of the more unfair than this statement. It is not true that performances, adding perpetrations of his own, all “34 judges discharge the law business of England under the above title. His counsel argued: “The and Wales.” We do not know how many judicial airs of the opera in question have been given to the officers there are, but the number is vastly greater ears of large audiences, so that they could go home than that. That number represents only the supe- and play them over on the piano or the flute; thus rior judges. We dare hazard the conjecture, that the airs have become public property. Now the reckoning on the above principle of embracing author of this publication has gone home, and rejudges of local courts in both countries, England calling only the melody, the upper notes of the has many times that number.

We have recently score, has arranged a piano accompaniment for it stated our belief that the litigation of New York is which is entirely original. It has been held that to greater than that of England. In an article enti- produce a piece of music for the piano from an opera tled The Decline of Circuit Life, in the current num- score is an original work. The only question, thereber of the Law Magazine and Revier, we find some fore, is, had the author of this work, having heard statistics, from which we learn that the county the airs, the right to use them in this way? This courts in England, during the year ending Decem- opera not being copyrighted, the property of the ber, 1877, tried 10,232 causes. This undoubtedly | author in it is simply the author's right at common law in his work, that is, his right to keep his man- son, 7 Pet. 348, 393, Judge Story says: 'Nothing uscript in his strong box; for this was his only right can be clearer, both upon principle and authority, until the statute of copyright enlarged his property, than the doctrine that to make an ante-nuptial setlimiting at the same time its duration. The defend- tlement void as a fraud upon creditors, it is necesant has not infringed this common-law right of the sary that both parties should concur in or have cogauthor.” But the court held otherwise, and the nizance of the intended fraud. If the settler alone musical pirate has “gone home” to think it over. intended a fraud, and the other party have no noWe never heard of a more righteous and considerate tice of it, but is innocent of it, she is not, and candecision — that is, hardly ever.

not be, affected by it.'” “It does not appear that Mrs. Watson knew, or had any reason to believe,

that Mr. Watson was insolvent, or indebted even, NOTES OF CASES.

or that she had any knowledge of his pecuniary conTHE Supreme Court of Georgia entertain a differ- dition, except that which she admits in her answer,

that he told her he was in easy circumstances and ent view of the meaning of the word “extraordinary,” from the New York courts. The latter abundantly able to make the conveyance, and that

he was regarded in the community as a man of are very liberal in their construction of the word in the statute for extra allowances for costs. The

property." former, in Cox v. Hillyer, February, 1880, 10 Rep.

In Pennsylvania Co. v. Miller, 35 Ohio St. 541, it 260, interpreting the phrase “extraordinary motion

was held that: (1) The implied undertaking of a or case,” in the statute concerning new trials in

carrier to insure the safety of baggage does not excriminal cases, hold that it means “such as do not tend to the contents of a trunk, consisting of samordinarily occur in the transaction of human affairs, ples of merchandise, which the passenger, a travelas when a man has been convieted of murder, and sing salesman, carries to facilitate his business in it afterward turns out that the man he was charged making sales. (2) But the carrier, by taking the with having killed is still alive; or where a man has

property into his charge and putting it in his warebeen convicted on the testimony of a witness who

house for safe-keeping, assumes the relation to it of is afterward found guilty of perjury in giving that an ordinary bailee, and he is bound to take such testimony, or from some providential cause, and

care of the property as a man of ordinary prudence cases of like character.” Speaking of the particu-would of his own, under like circumstances. Counlar case, they say: “The newly-discovered evidence

sel cited in support of the first holding: “Macrow v. relating to the physical condition of the defendant

R. R. Co., L. R. 6 Q. B. 612; Railroad Co. v. Shepperd, at the time of his trial, as well as that relating to

8 Exch. 30; Cahill v. Railroad Co., 13 C. B. 818; the main issues involved in the case on that trial, is Phelps v. Railroad Co., 19 id. 321; Wilson v. Railmerely cumulative in its character, and would hardly road Co., 56 Me. 60; 9 Wend. 85; Pardee v. Drew, pe sufficient of itself to have authorized the court

25 id. 459; Hawkins v. Hoffman, 6 Hill, 586; to have set aside the verdict in an ordinary motion Stoneman v. Railroad Co., 52 N. Y. 429; Perley v. for a new trial; it is certainly not sufficient to au

Railroad Co., 65 id. 374; Sloman v. Railroad Co., thorize an extraordinary motion for a new trial to be

67 id. 208; Weeks v. Railroad Co., 72 id. 50; S. C., made."

28 Am. Rep. 104; Jordan v. Railroad Co., 5 Cush.

69; Collins v. Railroad Co., 10 id. 506; Stimpson v. In National Exchange Bank v. Watson, 13 R. I. 78, Railroad Co., 98 Mass. 83; id. 371; Railroad the court upheld an ante-nuptial settlement as

Co. v. Shea, 66 Ill. 471; Railroad Co. v. Carrow, 73 against creditors, the grantee being innocent, al

id. 348; 8. C., 24 Am. Rep. 248. To these may be though an untrue consideration was stated, the deed added : Alling v. Boston & Albany Railroad Co., 126 was not recorded, and the grantor made repairs and

Mass. 121; S. C., 30 Am. Rep. 667. In support of improvements on the estate conveyed. They said:

the second holding, counsel cited: Cincinnati & “Marriage is deemed in law a valuable considera

Chicago R. R. v. Marcus, 38 Ill. 219; Mich. S. & N. tion. A conveyance, therefore, in consideration of

Ind. R. R. Co. v. Oehm, 56 id. 293; Camden & Ammarriage, stands upon a different footing from a vol-boy R. R. v. Baldauf, 16 Penn. St. 67; 2 Redf. Am. untary conveyance. All the authorities agree to

Railw. Cas. 267; 2 Smith and Bates' Am. Railw. this extent, at least, that a man, though indebted, Cas. 357; Minter v. Pacific R. R. Co., 41 Mo. 503; may settle a portion of his property on his intended

Butler v. Hudson River R. R. Co., 3 E. D. Smith, wife, and that in the absence of fraud, the settle-571; Hannibal R. R. Co. v. Swift, 12 Wall. 262; ment, if no more than a reasonable provision for

Bartholomeu v. St. Louis R. R., 53 Ill. 227; S. C., 5 the wife, will be upheld against existing as well as

Am. Rep. 45; Dexter v. Syracuse, Binghamton & New subsequent creditors. Campion v. Cotton, 17 Ves.

York R. R. Co., 42 N. Y. 326; Phillips v. Earl, 8 Jun. 264, 271, 272; Armfield v. Armfield, Freeman

Pick. 182; 4 Bing. 218; Relf v. Rapp, 3 W. & S. (Miss.), 311, 316; Croft v. Arthur, 3 Des. 223, 232; 21. Buckner v, Smyth, 4 id. 371, 372; Davidson v. Graves, Riley's Eq. 232, 235-238; Magniac v. Thompson, 7 A nice question was decided by the Exchequer Pet. 348, 393; Marshall v. Morris, 16 Ga. 368, 373, Division, in Winspear v. Accident Ins. Co., 42 L. T. 374; Smith v. Allen, 5 Allen, 454, 458;

Bonser v.

(N. S.) 900. The policy insured against “any perMiller, 5 Or. 110, 112.” “In Magniac v. Thomp-sonal injury caused by accidental external visible

[ocr errors]

*

means, within the intention of the policy and its policy. But we do not accede to this argument; provisions, and the direct effect of such injury and we think that a case of death by drowning is a should occasion his death within three calendar case of death by accident within the meaning of the months from the happening of such injury;” it be- policy for which the defendants are liable.” Huding further provided that no claim should be made dleston, B., in the principal case was “not without under the policy “for any injury from any accident considerable doubt,” but “after some hesitation" unless such injury should be caused by some out- coincided with the chief baron. He observed: “It ward and visible means, of which proof satisfactory cannot be said in this case that the injury was caused to the directors could be furnished, and that the directly by the epileptic fit. It was caused by iminsurance should not extend to

any mersion in the water and the consequent suffocainjury caused by or arising from natural disease or tion which was the direct cause of the death, and weakness or exhaustion consequent upon disease, or therefore it does not come within the clause of the any medical or surgical treatment or operation ren- policy by which the directors seek to protect themdered necessary by disease; or to any death arising selves in case of the insured's death arising from from disease, although such death may have been disease or from exhaustion consequent thereupon." accelerated by accident.” Whilst the policy was in force, W., in crossing and fording a stream or brook,

OPPONENTS OF THE CODE. was seized with an epileptic fit, and fell down in the , there

E such fit, was drowned. He did not sustain any per

of sonal injury to occasion death other than drowning. sages in his address to the law class of the UniverHeld, that a recovery could be had by his executors. sity of his State. The learned gentleman's opinion Kelly, C. B., could “not bring himself to entertain of the New York Code of Procedure, conveyed in a shadow of doubt in the matter.” The inquiry the same address, does not so much commend itself was, what was the causa causans ? "If there be a to our minds. He says: “This State is suffering meaning in words, and if the English language ad-to-day from a notable instance of unwise and unmits of a statement with a plain and grammatical hallowed tampering with the common law. The meaning of the cause of an individual's death, it is system of pleading and proceeding in the courts of to my apprehension clear that here drowning was the common law, which had grown up with generathe cause, and the only cause, of the death of the tions of lawyers and survived them, matured by the insured. The drowning may have been occasioned experience of ages, rested in the surest principles by the deceased having falling down in the water of logic and of law. It was, in some things, over from the fit of epilepsy, and that fit may have been technical. It had excrescences and absurdities occasioned by a constitutional habit of body, mak- faults which embarrassed or impeded justice. But ing it dangerous for him to expose his limbs to the these were frailties not essential to the system, action of cold water, the one cause preceding the which might be easily weeded out from it. Elseother, and being what logicians call the causa sine where they have been, leaving the hereditary wisquá non, but for which the death would perhaps not dom, the adjudicated certainty of the system, rehave happened, but not being in the proper sense of deemed from its defects. But in several States, as the word the actual proximate cause of death. The in this, it has been arbitrarily abolished — sacrificreal causa causans in this case was the influx of water ing the essential wisdom of the system for its acciinto the deceased man's lungs, and the consequent dental faults. And under pretense of simplifying stoppage of his breath, and so he was drowned. the administration of law, and facilitating justice, Any thing which led to that, such as his being, if there has been substituted for it a crude and mishe were, subject to epileptic fits, or being seized chievous theory, which, attempting to dispense with with a fit while crossing the stream, would be a skill, dispenses with certainty and security, embarcausa sine quâ non. If he had not had the fit he rasses the processes of the law, unsettles much, far probably would have crossed the stream in safety, beyond its purpose, which was settled before; has but that does not make the fit the causa causans, the vastly increased litigation and its cost; has impeded actual proximate cause of his death.” The ques- justice, and added to the uncertainty of the law. tion then arose, was a death by drowning within the If it survive, it will need exposition for generations policy? On this point, the learned judge quoted of judges, before its innovations, in all their scope from Trew v. Ry. PassengersAss. Co., 6 H. & N. and effect, will be settled; and then it will be more 839, where Cockburn, C. J., said: “Mr. Lush in- or less of an evil, as the courts shall have given it, geniously puts it that, to be within the policy, the more or less, of likeness to the system which it disdeath must be from some vis major, from something placed. Its simplicity is a cheat. It is loose, not without; that where the cause is one that would simple. Its plainness is a fraud. It is vague, not produce immediate death without any outward plain. It makes the remedies of the law a paradise lesion, it is not a case within the policy, and there- of doubt and ambiguity.” fore that the policy does not apply to the case of a An eminent South Carolina lawyer says, as we death by the action of water. If this be correct, learn from the Virginia Law Journal, that "the systhe case of a man who fell from the top of a high tem would convert any bar in the country into a set house, or one who fell overboard from a ship, or a of pettifoggers." The Journal falls in with these case of suffocation by fire, would not be within the eminent authorities, but has the candor to admit

« 이전계속 »