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SOME RECENT DECISIONS.
Thus in Sterling v. Warden, reported in this volume, The 12th volume of the American Reports is one
we have an opinion covering 21 pages; in Horn v. of the most important that has appeared. It pre
Cole one of 15 pages; in Eaton v. Boston, Concord & sents decisions of the ultimate courts of Connecti- Montreal Railroad one of 33 pages, on two pages of cut, Georgia, Virginia, Kansas, Massachusetts,
which no less than 52 cases are cited. If we had Michigan, Mississippi, New Hampshire, North Caro
time we would like to count the cases cited in the lina and Vermont, as reported in eighteen volumes whole opinion, but human life is short and we never of State reports. The editor has contributed some were fond of the higher mathematics. fifteen notes, several of which are of great length In Seguin v. Peterson, 45 Vt. 255, the plaintiff's and learning. We think the series is constantly in- infant son bought of the defendant cigar-holders creasing in interest and value, and that it must and tobacco-pipes and paid for them; afterward the eventually become, if it is not already, an indispen- mother went with the boy to the defendant, tendered sable part of every lawyer's library. Perhaps we
back the articles and demanded the money, which cannot do better than to make an abstract of a few was refused. It was held that the plaintiff could of the most striking cases in the present volume. recover the money, and that the demand by the
In Gray v. Jackson, 51 N. H. 9, it is held, that mother was sufficient. where a common carrier between P. and B. takes a In State v. Patterson, 45 Vt. 308, it was held that package at P. for R., a place in another State be- a man's house is his castle only in the respect that it yond his terminus, the question whether he under- is sacred for the protection of his person, and an astakes as a carrier beyond B. is one of fact, and the sault on the house can be lawfully resisted by deadly law of the place where the loss occurs governs the weapons only when the assault is intended to take rights of the parties. The first and much mooted the life of the inmate, or of doing him great bodily question is learnedly discussed by Judge Doe in an harm, and such resistance is necessary to prevent opinion of 39 pages. The judge quoted the follow- such crime, or in case the inmate has reason to being humorous language of Senator Bockee, in the lieve from the circumstances, and does in fact believe old court of errors of this State, in the celebrated that such resistance is necessary to prevent the comcase of Van Santford v. St. John, 6 Hill, 157: “Sup mission of such crime. This doctrine was the subpose the box had been marked · Brown's Hole, ject of a recent article in this journal, which is Rocky Mountains,' says the Senator. If the law appended to the case in the form of a note. implies a contract to deliver the box at that place, In Lake Shore and Michigan Southern Railroad Co. he observes, as it is the duty of every man faithfully v. Perkins, 25 Mich. 329, it was held that carriers of to fulfill his contracts, the carrier "must abandon his live stock are not ordinarily common carriers, and ordinary avocations and business, leave the delights that the burden rests on the plaintiff to show that of domestic association, embark with his dear- the defendant possesses that character or has asbought freight, and follow the long lines of internal sumed its liabilities. Exactly the contrary is denavigation until he reaches the head-waters of the cided in Kansas Pacific Railroad Co. v. Nichols, 9 Yellow Stone. Then he must traverse a vast desert, Kans. 235, also reported in this volume. The latter with Indian horses and pack saddles, exposed to case is furnished with an elaborate note, in which famine, to the wintry storms, to wild beasts and the reporter prefers the doctrine of the latter case savages; and if Providence should protect him both on principle and authority. through every danger, he returns, after years of suf- In Snyder v. People, 25 Mich. 106, it was held that fering, a worn out beggar to a ruined home.” This a husband living with his wife in her house, is not language was quite effectual in its day, but the jour- at common law guilty of arson in burning that house, ney to “Brown's Hole” now-a-days is a very differ- and that rule is not changed by a statute securing to ent affair, and, instead of being tedious, perilous, or the wife her separate property. This decision will difficult, is a much-sought recreation. The Senator's delight some of our lawyers who seem so much to law is still good, but his rhetoric has lost its force. dread the destruction of the matrimonial unity."
The liability for malfeasance in the performance In Sublett v. Bedwell, 47 Miss. 266, it was held, of voluntary services is established in Hammond v. that where at an election the person receiving the Hussey, 51 N. H. 40. The defendant, the teacher highest number of votes is disqualified, the person of a high school, was requested by the school com- receiving the next highest number, although qualimittee, whose duty it was, to examine candidates for fied, is not entitled to the office. admission to the school, and report upon their quali- In Stockwell v. Campbell, 39 Conn. 362, it was held, fications; he undertook the service, and the plaintiff that portable hot-air furnaces, used for warming a was examined and found qualified, but the defend-dwelling-house, set in pits prepared for them in the ant falsely and maliciously reported against him and cellar, and kept in place by their own weight, are he was excluded. The defendant was held liable.
part of the realty, as also are the pipes leading from The judgments of the New Hampshire courts seem the furnace to the chimney. Great stress is laid on not less distinguished for length than for learning. the intention of the parties, which seems in the more recent cases to constitute the test. Two interesting privileges and accommodations with white peopl cases are cited in the opinion, namely, Capen v. public conveyances, theaters, etc., is constitutio Peckham, 35 id. 88, where a windlass in a slaughter- The judge, in conclusion, very sagaciously obser house was held to be real estate, and Alvord Carriage that he doesn't see how the statute in question Manufacturing Co. v. Gleason, 36 id. 86, where a fac-fringes on the constitutional provision that priv tory bell, hung in a tower, was held to be real estate. property shall not be taken for public uses with
In State v. McCord, 8 Kans. 232, the defendant previous compensation. We don't either. The was convicted of manslaughter on an information for tendance of a colored gentleman upon a theatri murder, and obtained a new trial; the statute pro- representation can scarcely be deemed a publici vided that “the granting of a new trial places the or in any sense useful to the public. parties in the same position as if no trial had been Atwood v. Holcomb, 39 Conn, 270, holds that had;" held, that the defendant had waived the con- insolvent father may give his minor son his time a stitutional safeguard against being twice put in earnings. This is certainly right. Slavery has be jeopardy, and on the second trial could be convicted | abolished in this country, and there is no reason w of murder. This seems to the reporter unsound, and a young man should be bound to involuntary ser in a note he quotes the opinion of the court in People tude to his father's creditors. v. Gilman, 4 Cal. 376, in which the contrary doc- lloyt v. Holley, 39 Conn. 326, decides, by a ba trine is held. We must confess that the doctrine of majority of the court, that an agreement by a ph the principal case is opposed to our understanding sician, about to remove from his residence, in co of the law and our ideas of justice. It certainly sideration of $500 to recommend a certain oth seems a queer way of administering justice to decree physician to his patrons as his successor, is no that a man ought to be banged for murder, as the against public policy. result of a second trial, simply because he ought not In Ayer v. City of Norwich, 39 Conn. 376, a hors to have been convicted even of manslaughter on the was frightened by a tent standing within the bound first. We call that keeping the word of promise to of the highway, and the plaintiff was thrown out o our ear and breaking it to our hope.
the carriage and injured. Held, that a recover In Porterfield v. Butler, 47 Miss. 165, the court in might be had if the tent were a nuisance, and thi a very learned discussion hold that the acceptance of was a question for the jury. The reporter states in
married woman, given in payment for property a note, that the same doctrine was held in the subse purchased by her, is not rendered valid by her prom- quent case of Young v. New Haven, 39 id. 435, wher ise, after her husband's death, to pay it.
the horse was frightened by a steam roller used in In Lawson v. Jeffries, 47 Miss. 686, it was held, repairing the street and left at the side of the street that an ordinance, passed by a constitutional con- over Sunday. vention, granting new trials in certain cases, is not a Merilen Britannia Co. v. Parker, 39 Conn. 450, is legislative act, and is void. This case is a rival in an interesting case on the subject of trade-marks in one respect to the New Hampshire cases; on one personal names. The plaintiff had acquired the page the court cite the reports and pages, but not right to use the words, “ 1847, Rogers Bros. A 1,” the titles, of 144 different cases — just a gross. Why
as a trade-mark.
The defendant used the words not much better say, “ Vide Dig. passim?”
"C. Rogers Bros. A 1" for a similar purpose. Both In New Orleans, etc., Railroad Co. v. Harrison, 48 stamps represented real persons actually engaged Miss. 112, it was held that where a boy, not in the in the same manufacture. Held, that the use of employ of the company, was driven by the threats "Bros. A 1" should be prohibited, but not the use of the conductor to uncouple some cars, and in do- of “Rogers." It is difficult to see the distinction. ing so received an injury, the company were not liable. The reporter has appended a very elaborate note, tho
In Moore v. State, 48 Miss. 147, a statute incor- substance of which has appeared in these columns, porated a lottery company for twenty-five years, the in an article on the same subject. company paying the State a certain sum for the In Commissioners of Leuvenworth Co. v. Miller, 7 privilege; the amended constitution prohibited lot- Kans. 479, it is decided that a State legislature has teries; held, that this was not impairing the obliga- the constitutional power to authorize counties and tions of a contract, within the provisions of the fed- municipal corporations to subscribe for stock in raileral constitution.
road companies, and to issue bonds in payment thereIn Holmes v. Evans, 48 Miss. 247, it was held, that for. It takes Judge Valentine forty pages to demonå mere receipt for money, expressing that it is in strate this. part payment for a lot of land, is not a sufficient In Deering v. Boyle, 8 Kans. 525, we find the darmemorandum under the statute of frauds.
ing decision that a married woman's note, given to In Donnell v. State, 48 Miss. 661, it was held, that pay her husband's debt, but not in terms charging colored folks have some rights that white folks are her separate estate, is valid and effectual. This is bound to respect. The case decided that the statute sensible and right, and just what our courts must providing that people of color should have equal come to, sooner or later. We ought to get over the
nonsense of holding that a married woman's note, smith was not an indictable nuisance when it angiven to pay the debt of another, is not valid unless noyed only the occupants of three chambers in Linshe adds a clause to the effect that she is in earnest coln's Inn. So little attention does the law pay to about it, and really means what she says.
the woes of its own disciples! If it had been three Henderlite v. Thurman, 22 Gratt. 466, is a very of the Brighton divers, the case would have been remarkable case in its circumstances. On a judicial different. sale of several slaves, in October, 1863, a bond was State v. Linkharo, 69 N. C. 214, we have comgiven as security for the purchase price. It was held mented on before. This was the case of the that this bond was valid and obligatory, notwith-devout but musically incapable person who disstanding the emancipation proclamation previously turbed the religious meetings of his church, by made, and that it could be enforced after the adop- bad singing, and was indicted therefor. Held, that tion of the thirteenth amendment to the Federal as there was no intent to disturb any body, and constitution.
the vocalist was in good faith doing his best, the The case of Forsyth v. Mayor, etc., of Atlanta, 45 indictment would not lie. It is evident from the Ga. 15, is also a singular one. The declaration al- last two cases that North Carolina is no place for leged that the defendant had by ordinance defined people with sensitive ears. fire limits, within which the erection of wooden The much-vexed question whether an assignee in buildings was prohibited, but that while said ordi- | bankruptcy may sue in the State courts, is decided nance was in force, the common council had author- in the affirmative in Codell v. Exum, 69 N. C. 464, zed one F. to erect a wooden building within those and in the negative in Voorhies v. Frisbie, 25 Mich. limits, which taking fire destroyed plaintiff's wooden 476, both reported in this volume. building. On demurrer, held that the action could In Commonwealth v. Killian, 109 Mass. 345, the not be maintained. This is put on the ground that defendant was indicted under a statute for obstructthe plaintiff sustained no harm from the city's con- ing a railroad train, and endangering the safety of duct; he did not build on the faith of the ordinance, the passengers. He was a passenger on the train because his house, being wooden, must have been and pulled the signal rope and stopped the train, erected before the passage of the ordinance, or in thus endangering the safety of the passengers by anviolation of it.
other train in the rear.
Held, that the indictment In Blount v. Windley, 68 N. C. 1, it was held that could not be maintained. the maker of a note due to a bank has the right to In Pierce v. Dyer, 109 Mass. 374, it was held that tender in payment, as equivalent to gold and silver the owner of one part of a building has no right of coin, the bills issued by the bank, nor can the bank action at law against the owner of the other part, escape by assignment of its effects, nor by any au- for a willful neglect to keep his part in repair, thority from the legislature.
whereby the plaintiff's part is injured. In State v. Pepper, 68 N. C. 259, it was held that to Feital v. Middleser Railroad Co., 109 Mass. 398, make profane swearing a nuisance, the profanity must we have commented on in a previous number. The be charged and proved to have been uttered in the action was for injuries sustained on defendant's road, hearing of divers persons; the general allegation, “to while the plaintiff was returning on Sunday from a the common nuisance,” is insufficient. Hence, where Spiritualist camp meeting. It was left to the jury the indictment is alleged that the defendant “in to say whether the meeting and the plaintiff's purthe public streets of the town of L., with force and
pose in attending it was religious. A Massachusetts arms, and to the great displeasure of Almighty God, jury found for the plaintiff. What would the Puriand the common nuisanco of all good citizens of the tan forefathers say to this? We well know how they State then and there assembled, did for a long time, treated the people who attended the Salem spiritual to wit: for the space of twelve seconds, profanely meetings in olden time. curse and swear, and take the name of Almighty In Bennett v. Goldthwait, 109 Mass. 494, it is held God in vain, to the common nuisance," etc., held that proving a debt in bankruptcy bars an action on that no criminal offense was therein charged. Some the debt previously commenced. This is clearly the curious cases are cited in the opinion, for instance, letter of the bankrupt act, but we think is not genKing v. Crunden, 2 Camp. 89, an indictment for in- erally known. decent exposure “in the presence of divers of the In Boothly v. Plaisted, 51 N. H. 436, defendant king's subjects” at Brighton, the great bathing had ordered, by sample, spirituous liquors of the resort of England. (Of course all the king's sub- | traveling agent of a firm residing in another State, jects there were “divers.") There was no direct where the sale was lawful, and the goods were put evidence that more than one person saw the expo- up, directed to the purchaser, and shipped from the sure, but as others were present and might possibly | firm's place of business; held that an action for the have seen it, this was recognized as sufficiently proxi- price could be maintained in New Hampshire. mate to be dealt with as a reality. But in Rer v. The New Hampshire courts are lenient toward the Loyd, 4 Esp, 200, it was held that the noise of a tin- / weakness of human nature, in spite of the severity of their excise regulations, and in State v. Rand, 51 found murdered and suspicion fell on his sist N. H. 361, it is held that although the sale of spir- | his nurse and his father. But the evidence was i ituous liquors is criminal, the purchase is not, and sufficient to convict any of them. The sister show the purchaser is not excused from testifying on the all the manifestations of an innocent person at t ground that it would tend to criminate him.
time; but, subsequently, and after a period of fi There are many other interesting and curious years had elapsed, she voluntarily confessed the pe cases in the volume. We have made a selection of petration of the deed, and was convicted. Her se a few of the 223 cases reported. We think the an- tence was commuted to transportation for life. Ві nals of reporting will fail to show another volume to the confession of the girl was taken as evidence parallel this in the number, variety, importance, her guilt without any corroboration, and without learning and general intelligence of the decisions. thorough inspection of the intiuences which had bec We note a very creditable increase of erudition and at work on her mind for five years. Among thes strength in the opinions of the southern and western influences were the fact that her father had not ye courts. The practice of the reporter in stating the been cleared of suspicion; that the nurse was unabl nature of the decision in a line preceding the sylla- | to find employment on account of the attaching sus bus, is much to be commended. The head-notes picion; and that she, herself, had been in a sort of themselves are generally models of compression, convent where she was subject to influences calculated clearness and accuracy, and the index and tables to exalt all her sensibilities to an abnormal state, and leave nothing to be desired.
where the principle of sacrifice was constantly and
strenuously inculcated. We believe, with Dr. HamCONFESSIONS AS EVIDENCE OF GUILT.
mond, that although this girl may have been guilty
of the murder to which she confessed, her conA free and voluntary confession by an accused fession should not have been taken as conclusive eviperson, where there is proof of the corpus delicti is dence of her guilt, although the confession was made generally considered evidence sufficient to convict. in open court. Dr. Wharton, in his work on criminal But so many instances have occurred where the ap- law, bears testimony to the worthlessness of confesparently voluntary confession has been afterward sions without corroboration and scrutiny. In volume found to be the result of mysterious physical or one, $ 684, he says: “So, also, it is important to mental causes -the result of a real coercion that inquire whether the confession may not be traced to the courts are becoming unwilling to rest conviction some psychological delusion.” And again: “So, ay on confessions alone. Some kind of corroboration, was the case with Lord Byron, a morbid vanity may undoubtedly, should be required in criminal cases; lead to confessions of imaginary crimes, or of crimes and there should be a close scrutiny of the circum- of peculiar notoriety." Two brothers in Vermont stances of the confession, the mental and physical (the Boorn brothers) were convicted and sentenced conditions of the accused, and the influences which to death chiefly on their own admissions, and were have been brought to bear in producing the confes- relieved from execution by the reappearance of their sion. This idea is, however, comparatively recent; alleged victim. Three brothers in Illinois (the and history furnishes numerous examples of supposed Trailor brothers) were arrested for the murder of a criminals being tortured until they confessed. But man, and one of them confessed the deed under oatlı, an involuntary confession has now no value whatever in open court. Ilis conviction was prevented by the in courts of justice in civilized countries.
appearance of the supposed murdered man. In an able paper read by Dr. Hammond before the The facts which are constantly accumulating show Medico-Legal Society of New York, it is said that that confessions of guilt in criminal cases, whether “it is no uncommon thing for individuals to confess | judicial or extra-judicial, should only be received to having perpetrated crimes of which they were after all the tests of the reliability of the confession either certainly or probably innocent, and that there have been exhausted. are forces in operation in the human mind which may prompt to the making of a false confession, even Judge Blatchford, of the District Court for the where by so doing, life, liberty or property be put in
southern district of New York, made an important danger.” Dr. Hammond refers to the case of per
decision, on Wednesday week, in the matter of Mcsons confessing that they were witches; of persons,
Keon, a bankrupt. In November, 1874, McKeon filed a
voluntary petition in bankruptcy and was ad judged a in times of great excitement in regard to some crime,
bankrupt. He afterward effected an arrangement with coming forward and acknowledging themselves the his creditors under section 17 of the amendment of perpetrators. Instances are recorded where inno- 1874, for a composition, and the court confirmed the cent persons have confessed crimes for the purpose arrangement. McKeon then petitioned the court for of saving the guilty. And physicians sometimes
a release and restoration of his property and books in
order that he might resume business, regain his standfind patients who assert that they have committed
ing and credit in the community and thereby be crimes which they evidently had not committed.
enabled to carry out the terms of the compromise. In 1860, in Wiltshire, England, a little boy was Judge Blatchford declined to grant the petition.
LIFE INSURANCE-PAYMENT OF PREMIUMS. ceive the payment, and was already in funds which
might be applied for that purpose, may stand upon enSCPREME JUDICIAL COURT OF MASSACHUSETTS. tirely different grounds. The report shows that upon
all former occasions when a premium, became due CHICKERING V. GLOBE MUTUAL LIFE INSURANCE CO.
upon this policy, it had been paid to Osborn upon the 1. Where the insurance agent keeps a premium and com- check and from the funds of the firm of Chickering &
mission account with the company, and settles by certi. fed checks for the gross balance after deducting his
Sons. There is evidence tending to show that Osborn commissions; and, with the approval of the partner- must have known that the practice of that firm alship to which the insured belongs, retains the premium
lowed that method of paying the debts of the indiout of the funds of such partnership in his hands and includes the amount in his usual certified check, which vidual partners, and that the assured had the right, or is realized by the company, the payment is valid, and
at least was allowed, to pay his premium from the not defeated by the company's return of the money to the agent.
partnership funds. Also, that a few days before the 2. The doctrine of Russell v. Bangley, 4 B. & Ald. 397, that ** one shall not discharge his debt to a principal by writ
premium in question had become payable, Osborn bad ing off a debt due to hiin from the agent," held to be in his hands belonging to the firm, and which the asapplicable to cases where an agent with limited powers sured had a right to take out of his hands, an amount or for a special purpose has become insolvent, and where the result would be to throw upon the principal exceeding the premium. As it was already in Osborn's the risk and loss of other transactions in which he has no hands, there was no occasion to give him a check or concern; but not to apply where the principal receives the money by "writing off," as effectually as by direct written order. The purpose of such a document payment.
would only be to give him possession of the funds, but CONTRACT ou a life insurance policy. The opinion that he had already. If at any time before that 9th states the case.
day of February, Osborn had paid over those funds to AMES, J.-- The question raised by this report is the firm, and if the exact sum necessary to pay the whether there was any evidence upon which the jury premium had been returned to him for the purpose of would have a right to find that the premium due from paying it, it would have been a good and effectual paythe assured on the 9th day of February, 1871, was paid ment within the meaning of the policy. Would it according to the terms of the policy. Even upon the have been any the less so, if instead of paying the enadmission that Osborn, as the defendant’s agent, had tire fund to the firm he had been directed by Chickerno authority to waive or modify those terms in any ing, as a member of the firm, to retain the amount of respect, a seasonable payment to him was all that was the premium in his own hands for the like purposes. necessary for the plaintiff to prove. He was the agent It is true that it has been said in Russell v. Bangley, 4 of the corporation, not merely for this special transac- B. & Ald. 397, and repeated in many English cases of tion, but generally for the collection of all premiums more recent date, that “One shall not discharge his that became due to them within a certain territory. debt to a principal, by writing off a debt due to him Hlis mode of accounting, as pointed out in the contract from the agent” - and that there must be an acby which he was appointed, was not by forwarding the tual payment in cash. We think it will be found that specific and identical money which he from time to this remark is generally applied in cases where an agent time received in that capacity, but by charging him- with limited powers, or for a special purpose, had beself in bis account with them with all sums so received, come insolvent, and where the result of the " writing and by trasmitting at regular and prescribed periods, off” was to throw upon the principal the risk and loss in form of certified checks or drafts payable in New of other transactions in which he had no concern. In York, whatever balance he might be found to be Stewart v. Aberdein, 4 M. & W. 211, Abinger, C. B., reowing. Whatever was paid to him became his money, marks that the notion about the actual payment in from which he was to deduct his commissions, making cash had been pushed too far. In Sweeting v. Pearce, nimself debtor to the defendants for the balance only. 9 C. B. (M. & S.) 538, Martin, B., says, that in the case This had been the mode in which he had collected and of two commercial houses having business transactions accounted for all payments upon this policy before together, a payment from one to the other may be that date. It appears from the report that he charged made by entries in account current in their books; himself, in his account with the defendants, with the that is, the house paying enters the amount to be paid premium now in question and included it in the check to the credit of the house to be paid, and gives notice; with which, according to his regular practice, he had and the house to be paid enters the amount to the undertaken to pay the balance apparently due to them. debit of the other house. If the “writing off” should The amount of the premium, therefore, actually came be, no real, only a nominal and pretended payment into their hands in regular course of business; but, on to the principal, he should of course not be bound by the claim that it was not seasonably paid to their agent, it. But the court will look at the substantial result they have repaid it to him and now insist that it was and effect of the transaction, and will not insist upon not paid by the assured according to the terms of the necessity of a mere formal delivery of bank notes by policy.
one party to the other, if the same identical bank It appears from the report that Chickering, before notes are immediately to be returned. If the assured the premium became due, had inade an arrangement had delivered to Osborn the amount of the premium under which he supposed that funds had been provided in the check of the firm, as on all previous occasions, and would be applied to its payment, and that he re- or in bank notes, the result would have been a credit ceived assurances, first, that they would be, and, after- to the same amount in favor of the defendants in Osward, that they had been, applied to that special pur- born's books, to be accounted for and paid by him, acpose and use.
If this arrangement had been with a cording to his instructions and the terms of his conmere stranger, and had amounted only to a promise tract. If on the other hand, instead of a payment in that that stranger would make the payment for him, that mode, he had been directed by the assured to apit would, of course, have been of no avail, without a ply a portion of the funds in his hands to the same literal delivery of the money. But an arrangement purpose, the result accomplished by “writing off” in of that kind with the person who was himself to re- this manner would be precisely the same, viz. : a credit