« PreviousContinue »
they have hitherto displayed. The court decide expressly that a consignor who sends goods by express and takes a receipt for them, without dissent, is not therefore bound by all the conditions which the carrier chooses to print thereon. Mr. Justice Davis, delivering the opinion of the court, quotes with approval the language of the court in New Jersey Steam Navigation. Co. v. The Merchants' Bank (6 Howard): —
The carrier is in the exercise of H sort of public office, from which he should not be permitted to exonerate himself without the assent of the parties concerned. And tlii» is not to be implied or inferred from a general notice to the public, limiting his obligation, which may, or may not, be assented to. He is bound to receive and carry all tlie goods offered for transportation, subject to all the responsibilities incident to his employment, and is liable to an ietion in case of refusal. If any implication is to be indulged from the delivery of the goods under the general notice, it is as strong that the owner intended to insist upon his rights and the duties of the carrier, as it is that he assented to their qualification. The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment.
And adds: —
It can readily be seen, if the carrier can reduce his liability in the way proposed, he can transact business on any terms he chooses to prescribe. The shipper, as a general thing, is not in a condition to contend with him as to terms, nor to wait the result of an action at law in case of refusal to carry unconditionally. Indeed, such an action is seldom resorted to, on account of the inability of the shipper to delay sending his goods forward. The law, in conceding to carriers the ability to obtain any reasonable qualification of their responsibility by express contract, has gone as far in this direction as public policy will allow. To relax still further the strict rules of common law applicable to them, by presuming acquiescence in the conditions on which they propose to carry freight when they have no right to impose them, would, in our opinion, work great harm to the business community.
This decision is in accordance with what most have felt ought to be law, and it is only surprising that the opposite view has been adopted so often.
The Hon. D. Kings, first Chief Justice of Arkansas, and for twelve years United States Judge of the Eastern District of Arkansas, died on Wednesday, September 3d, aged seventy-five years.
Surface Water. — Supheme Court. Oghurn v. Connor. — This case, reversing the judgment below, holds that the owner of an upper field has a natural easement to have the water that falls on his field flow over a lower one, and the owner of the lower field is answerable in damages if he obstructs such flow. This is contrary to the decisions in Massachusetts, but'the court, after reviewing the Massachusetts cases, conclude that their own view of the law is the better one, and cite in support of it cases from Ohio, Pennsylvania, Vermont, Illinois, Missouri, and Louisiana.
Costs. — Supreme Court Of Errors. Buell v. Flower. —This was an action of assumpsit for money lent, during the pendency of which the defendant repaid the loan with interest. The plaintiff, at the time of receiving the money, demanded also the costs of suit, but the defendant refused to pay them. Held, by a majority of the court (butler, C. J., and Seymour, J., dissenting), that the plaintiff, after thus voluntarily accepting payment of the debt in full, was debarred from claiming a judgment for nominal damages, and consequently could not recover his costs, since a plaintiff's costs are only incidental to his damages; although, had he refused to accept the amount of the debt without the costs, the mere tender would not have had this effect.
Hon. Thomas B. Butler, chief judge of the Supreme Court of Errors, resigned that position at the recent session of the general assembly, on account of ill health, and soon afterwards died; and Hon. Origen S. Seymour, LL.D., one of the associate judges, and the junior one as respects the date of his appointment, although the oldest in years, was chosen as his successor. Judge Seymour's term of office expires during the winter, by reason of his attaining the age of seventy, —the constitutional limit, — and Hon. John D. Park, the senior associate judge, as respects the date of his appointment, was elected to' succeed him at that time. The vacancies occasioned by these promotions were filled by the election of Hon. James Phelps and Hon. Dwight W. Pardee, the senior judges of the Superior Court.
Hon. William T. Minor, LL.D., one of the judges of the Superior Court, having accepted a nomination for representative in Congress, resigned his position on the bench, and a great part of the session of the assembly was occupied in endeavoring to fill the three vacancies thus occasioned. The senate finally made choice of three men, and the house of three others, and after numerous caucuses and conferences the assembly adjourned without being able to make any elections at all. This will, for the present year, throw the work of eleven judges upon eight.
Cofyright. — The Attorney-General of Iowa has been called upon for an opinion upon the curious question of the power of the state to copyright its laws, — the legislature having provided that the Code should be printed, and sold for the benefit of the state. The Attorney-General replied that " it is quite probable that it would have been competent for the legislature, when providing for the publication of the Code, to also have provided for securing to the state the copyright of such publication," but that, as the legislature did not do this, there was no authority for restraining any publication of the Code. It would certainly be a most mean and pitiful piece of political economy, to say no more, for a state to attempt to limit by copyright a diffusion and knowledge of its laws. It would be much more worthy of a state, and better economy in
VOl. Till. 11
the long run, to compel the publishers to sell the laws at the lowest possible price, and thereby help to disseminate a knowledge of the laws among the people. There is little difference in principle between the Roman emperor's plan of writing the laws so high as not to be readable, and a plan to so control their publication as to put the price beyond the means of the people. — Albany Law Journal.
Canal Boat. — United States District Court. United States v. The Penn. Canal Boat Nos. 68 and 69. —Judge Giles has decided in this case that a canal boat without oars, masts, sails, or steam power, is not a " ship or vessel" required by act of Congress of Feb. 18, 1793, to pay certain tonnage duties.
Chief Justice Chapman. — The death of the Chief Justice of the Supreme Judicial Court of Massachusetts, announced without premonition of its immediate probability, is an event of startling interest to the people of this state, and especially to the bar. It occurred at Flueleu, Switzerland, on the 28th of June last, though the news did not reach here until July 17th. His remains were brought home and interred at Springfield on the 26th July, at which time and place appropriate funeral services were attended by his Excellency the Governor, all the associate justices, members of the local bar, and delegations from the bar of Suffolk, Worcester, and other counties.
His death was preceded by severe illness for only a week or two, though the disease had been struggling with and breaking down his strong constitution and otherwise robust health for many months.
Early in the present year it became manifest that he could not bear the continuous labors of his arduous and responsible position without some decided measures for relief and respite. Upon consultation with his physician, it was determined that he should seek it abroad as early in the spring as the arrangement of the business of the court would permit. This was accomplished so as to enable him to sail for Europe on the 10th day of May. He was accompanied by his wife, — a daughter, already in Germany, joining them on the Continent, — and he was attended by their ministrations in his last hours. Travelling with apparent benefit, and strong hope of returning with new vigor to resume his duties in the autumn, he was arrested, at a small stopping-place on his way, by aggravated symptoms of his disorder, brought on, as is supposed, by some exposure or over-fatigue. From this he was, for a time, thought to be recovering ; but the fatal result was not longer to be deferred. Disease had obtained the mastery of his body, and his spirit departed.
Reuben Atwater Chapman was born in Russell, in the old county of Hampshire (nowin Hampden county), in September, 1801. His home was in a sequestered district of the town, which was itself at that time somewhat less accessible than it now is. His father was a farmer, in too narrow circumstances to afford his only son any means of education beyond what could be obtained in the winter school of the district, and required his aid upon the farm for the greater part of the year.
At the age of seventeen he engaged in teaching a similar school in the neighboring town of Montgomery. At nineteen he entered the service of a trader in Blandford as clerk. Becoming connected with a debating club, and there developing considerable readiness and capacity for argument, his mind was turned towards a larger field for the exercise of abilities, the possession of which in himself he was thus led to suspect.
He accordingly entered as a student of law in the office of BrigadierGeneral Alanson Knox, then a practising lawyer in Blandford, where he continued the study of the law for five years before admission to the bar, in accordance with the rules then in force. He soon mastered the ordinary routine of country practice, and was accustomed to attend trials in justice's courts in Blandford and the neighboring towns, encountering sometimes the lawyers of the vicinity, and sometimes other students. At the time of his admission to the bar he had already acquired the reputation of an acute practitioner.
He at first opened an office in Westfield, where he found the limited professional business already divided and firmly held between several older lawyers, leaving slight encouragement for a new man who was entirely dependent upon his own exertions. He removed to Monson in the same county, and shortly afterwards to Ware. While at Monson he was married to Elizabeth Knox, the eldest daughter of his legal instructor, who, with two daughters, now survives him.
In 1830, or about that time, he removed to Springfield, and formed a professional copartnership with Mr. George Ashmun, afterwards distinguished as a member of Congress and otherwise. Chapman & Ashmun soon became leaders of the bar, eminent from the assiduity, ability, and success with which they conducted the causes of their clients. Their connection continued for nearly twenty years. Upon its dissolution Mr. Chapman conducted business alone for a few years; and in 1854 associated with himself Mr. Franklin Chamberlin, now of Hartford, Conn. In 1860 he was appointed to the bench of the Supreme Judicial Court, upon the retirement of Chief Justice Shaw, to fill the vacancy created by the appointment of Mr. Justice Bigelow to be Chief Justice, and took his seat at Worcester in October of that year. In February, 1868, he was himself appointed Chief Justice, in place of Chief Justice Bigelow, resigned.
While at the bar he was appointed and served upon a commission to revise the proceedings, practice, and rules of evidence of the courts of this commonwealth, and joined in the report upon which was enacted chapter 233 of the Acts of 1851, generally designated as the " Practice Act." In 1860 he was made one of the presidential electors for the state of Massachusetts, and, as such, joined in elevating Abraham Lincoln to be leader of the nation in its greatest crisis.
Otherwise than this, he neither held, nor aspired to, any political or civil public office, and permitted his name to be used only when there was no prospect of election.
He devoted himself with assiduous energy and steady nndeviating purpose to the one object of perfecting himself in the principles and practice, and in the learning of his chosen profession. He studied not merely to prepare his cases, but for the investigation of the subjects into which they led him. The conclusions at which he arrived were stored in his mind as a part of bis stock of knowledge. These were so assimilated as to attend at call upon his mental action. It was from this source, rather than from especial quickness of apprehension or intuitive perception, that he acquired, to a remarkable degree, readiness in the application of legal principles to complicated facts and the changing phases of a difficult trial. Though seldom eloquent, he almost invariably presented his views to the court or jury with a clearness and directness which was doubtless not less effective than oratory. His coolness of temperament enabled him to maintain his composure under most embarrassing circumstances. Yet he was capable of being roused to violent and most indignant denunciation of what seemed to him to be false or mean.
Whatever he did he did with his might, recognizing the principle that it was his duty to give his best and maturest judgment to every cause which he undertook to conduct, and to every question which he undertook to examine for the purpose of giving an opinion. He made his client's cause his own; and doubtless a too firm faith in his client sometimes led him to be unjust to the opposing party or witness; but it enabled him to bring to the trial of the cau3e a zeal and power which could come only from a conviction that he was right.
He was eminently successful in winning the confidence of clients and of the community in the soundness of his learning and the safety of his counsel, and in inspiring a wholesome fear of his power as an adversary, which was favorable to retainers.
His practice and reputation were in a great measure local in the counties of Hampden and Hampshire; and he did not much incline to business which led him abroad; but he was frequently engaged in causes in other counties, and sometimes also in Connecticut and New York.
He carried to the bench a large and varied experience in the trial of causes. In familiarity with the principles of general equity jurisprudence, then of recent introduction in Massachusetts, he was considered to be far in advance of most of his cotemporaries of the bar.
He did not permit himself to remain merely and narrowly a lawyer. As he advanced in years and experience, and came to feel secure in his position at the bar, he reserved from his professional work more of his time and thoughts for acquisition in other branches of knowledge, seeking to make up the deficiencies of early education. He thus became somewhat familiar with the Latin, German, and French languages. He interested himself in philosophical reading and enquiry, and studiously sought and enjoyed the society of cultivated men in other professions and departments of learning. His intellect thus became broader and stronger. The asperities of temper and manner, which were engendered by early struggles and contests at the bar, were softened, and his whole character mellowed and ripened.
The purity of his private life was clouded by no spot or breath of reproach. The sincerity of his religious views, and his earnest purpose to govern his life