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ant's lands as so pointed out by R., and that if in fact there was a trespass, it was due to the acts and statements of said R. The mistake was denied by the M. C. Co. On appeal from an order dissolving a preliminary injunction which had been granted, it was held (1) that in such a case as this, averring a mistake to have been made in the deed of exchange, and setting up a verbal contract differing from the deed (which expressed the consideration to be the exchange of the lauds described therein), and asking a specific performance of the verbal contract, the law was well settled that the terms of the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. Semmes v. Worthington, 38 Md. 318. It is also well established that any agreement to merit the interposition of a court of equity to enforce it must be certain in all its parts and mutual; to correct a mistake by one of the parties as to what the contract was, is not the ground of such interposition, but a mistake in the execution of an agreement clearly understood and entered into by both parties. Griffith v. Frederick Co. Bank, 6 G. & J. 424; Gelston v. Sigmund, 27 Md. 334; Shepherd v. Shepherd, 1 Md. Chau. Dec. 244; 1 Story Eq., §767. The contract set up by the appellant is not, we think, upon the proof, in the light of the principles recognized by the authorities cited, satisfactorily made out. (2) A court of equity has no inherent power to ascertain the amount of damages sustained by reason of tortious acts unattended with profits to the wrong-doer. Kerr on Inj. (Eng. ed.) 221. There must be some joint interest or interest in common of the parties in the property for a court of equity to assess the damages. In a case of trespass where no such relations exist, we are aware of no ground upon which a court of equity can set up any other rule of damages than that which prevails at law. The rule for trespass in mining coal is well settled in Maryland. The right to maintain the action. of quare clausum fregit exists in this State, whether the defendant committed the trespass unwittingly (as the complainant claims to have done) or willfully and wantonly. The owner of adjoining property is held to know the boundaries between him and his neighbor, If he has made a mistake bona fide as to his title or boundaries in mining coal, the lowest measure of damages applicable is the value of the coal immediately upon its conversion into a chattel without abatement of the cost of severance. If the trespass has been committed through negligence or design, punitive damages in addition may be recovered. Barton Coal Co. v. Cox and Cox Ex'rs, 39 Md. 1; Franklin Coal Co. v. McMillan, 49 id. 549; Blaen Avon Coal Co. v. McCulloh, 59 id. 403. An unwitting trespasser, merely as such, could not change the amount of his liability by simply changing the forum. No lower measure of damages for trespasses, not negligent nor willful, could be substituted in equity for that fixed at law, on general principles, for such trespasses. If a lower measure could be there applied merely because the trespasser was honestly mistaken, all such trespassers would seek the courts of equity when sued, and thus evade the rule established as applicable to them in the aforegoing authorities. Atlantic, etc., Coal Co. v. Maryland Coal Co. Opinion by Ritchee, J.

TRUST AND TRUSTEE-INVESTMENTS-GOOD FAITHDISCRETION.-The general rule applying to discretionary trusts is, that if trustees exercise discretionary powers conferred on them in good faith and without fraud or collusion, courts of equity will not undertake to control their discretion. Perry on Trusts, §§ 510 and 511. And the learned author cited says this is so, notwithstanding the court has taken jurisdiction of the trust, for it to be executed under its eye. In re

spect to the rule regulating the investment of trust funds, the same author says in sections 452 and 460, that if there are special directions in the instrument creating the trust as to the kind of securities in which trust funds shall be invested, those directions must be followed; but that in the absence of such directions and powers the trustee must be governed by the statute law or rules of the court in the State where the trust is to be executed; and if there be no such law or rules of court, then they are to be guided by sound discretion and fair dealing or good faith. The authorities cited are all English, and this court has declared that the English rule has never been adopted in this State; because there is no law or rule of court of general operation which regulates the matter. Gray v. Lynch, 8 Gill, 405; Evans v. Iglehart, 6 G. & J. 192. In section 459, of Perry on Trusts, it is also stated that the rule he laid down was not adopted in Maryland. The learned judge, who decided this case below, certifies a general rule of that court respecting trusts administered in it, but he adds that the court was in the habit of ordering investments in other securities than those named in the rule certified. The general rules for equity practice recently promulgated by this court, under constitutional authority, make no provision on the subject. In Gray v. Lynch, 8 Gill, 419, the question was whether the trustees should be held liable for investments in bank stock of the United States Bauk, which failed; and the court held they were not auswerable for the loss; and that it would be grossly inequitable to charge them with it. The court said such investment was analogically justified by the act of 1831, ch. 315, respecting investments by administra tors and guardians under order of the Orphans' Court, which authorized investment in "bank stock or any other good security." That provision still exists and forms the 237th section of article 93 of the Code, aud supplies the same aualogical justification in this case, of the investment made in gas stock, which when bought was probably deemed quite as safe and profitable an investment as any which could have been selected. We have had no suggestion that at that time it was not so regarded. Too much caution cannot be exercised by trustees in the investment of funds confided to their management, but when a discretion is clearly given, and its exercise is conceded to have been honest and with fairest intent, a court of equity will not charge such trustee, who is really faultless, with the results of an honest mistake in judgment. McCoy v. Hortirtz. Opinion by Irving, J. [See ante, 188.]



CHALLENGE TO ARRAY—IRREGULARITY BEER PRESUMED INTOXICATING.—(1) A challenge to an array of jurors ought not to be sustained on account of mere irregularities in the drawing of the jurors, or mere iu formalities on the part of the officers charged with the drawing of the same; yet where the statute specifically prescribes the class or list of persons from which the jurors are to be selected, the failure on the part of the officers to draw the jurors from the class or list prescribed is a sufficient ground to sustain a challenge to the array. State v. Yordi, 30 Kaus. 221; Thomp. Mer. Juris., § 143; Jones v. State, 3 Blackf. 37; Baker v. Steamboat, 14 Iowa, 214; Anon., 1 Browne (Pa.), 121; McCloskey v. People, 5 Park. 308. (2) In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor. Beer, according to Webster, is a fermented liquor made from any malted grain, with hops and other bitter flavoring matter. "When therefore the word 'beer' is used in court by a witness, the court will take judicial notice that it means malt and intoxicating liquor, or such

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meaning will be a presumption of fact, and in the meaning of the word itself there will be prima facie proof that it is malt or intoxicating liquor that is meant." State v. Teissedre, 30 Kaus. 477, 479, 484. When the defense is made that the beer sold is spruce beer, or ginger beer, or any other non-intoxicating beer, evidence thereof is competent; but the mere fact that under some formula a non-intoxicating liquor may be made, which is sometimes called beer, is wholly irrelevant, in the absence of proof that the liquor or beer sold was made from the formula. Sup. Ct Kans. State v. Jenkins. [ (2) See 46 Am. Rep. 621.] (32 Kaus. 477.)

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Chief Justice.

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-JUDGE FULLERTON has been the recipient of many congratulations on the subject of the suc cessful production at the Empire Theatre, London, of his son's comic opera, "The Lost Locket." The exjudge is as much surprised as those who did not know he had a musical sou. I went to see him on Saturday to find out if he could give me some particulars concerning the work. "I dont know any more about it," he said, "than what the cablegrams in the papers say. My son came to me about five years ago and told me he wanted to go to Europe. As he'd been a good deal of a home-boy I thought it might do him good to knock around the world a little, so I told him if he had the money he could go. I think he studied music pretty thoroughly in Germany and then went to London, where he seems to have made some valuable connections. I don't know any thing about music and don't care for it, and always thought he was wasting time over it, so in his letters he's said very little about his

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operetta.' When I told Judge Fullerton that Duff of the Standard thought of bringing out the operetta next fall, he instantly became interested. "We'll have to protect the copyright," he said, at once. Lucky composer to have your good father a good lawyer!

A batch of cases of considerable importance to admiralty lawyers are expected to come up in the United States District Court in a short time. They all grow out of the burning of the Inman Pier two winters ago. The legal questions are complicated by the fact, that while the goods for whose value various importers are suing, were destroyed by fire on the Inman Pier, many of them were unladen from the Egypt, of the National Line, and were shipped under National Line bills of lading; and further by the fact that owing to an accident to the City of Brussels, of the Inman Line, many cases of goods intended for that steamer were shipped from Liverpool on the Egypt under Inman bills of lading. Some plaintiffs have sued the latter line, some the National. As many legal questions of the same nature will be raised in all the suits, and much of the evidence will bear upon the whole batch, Judge Browne has ordered that they be tried together. Whatever Judge Browne's decision may be the cases will undoubtedly be carried to the Supreme Court, as many questions of vital importance to merchants and steamship companies are involved. Certainly every clause in the bills of lading limiting the liability of the companies will have to be passed upon. The plaintiffs propose to press a novel point very strongly, viz.: That the goods were illegally on the wharf at the time the fire occurred, the so-called "lay permit" of the collector, granting to the steamship companies permission to allow the discharged goods to remain on the wharf forty-eight hours, being contrary to law. It is claimed that the duties of the collector are defined and limited by statute; that there is no statute authorizing the issue of the "lay permit," and that the simple instructions of the secretary of the treasury (Sherman) to the collector that he might issue such permits did not give him the necessary legal authority to do so.

One of our judges is known among the younger members of the profession as "the weak sister," because he is more frequently reversed than any other judge of his court. The other day I was discussing with a friend of mine, a motion which he was to argue the next morning before "the weak sister." "There's only one disadvantage under which our side will have to labor," he said, "but it's a great disadvantage.' "What's that?" I asked. "We're in the right!" And he was beaten.


Roscoe Conkling has not been in court very frequently of late, which in one sense is a pity. For however greatly opinions as to his legal abilities may differ, there is no doubt of his ability to entertain the court, counsel and spectators. He does not confine himself to witticisms in his native tongue, but will even encroach upon the sacred precincts of the ancient lauguages. I once heard him make a Latin pun, which has not yet, that I am aware of, found its way into print. During the taking of some testimony he had been indulging in several Latin phrases, when in some way one of the counsel was led to remark, "What's sauce for the goose is sauce for the gauder; " he added, "The Senator cannot translate that, because he does not know the Latin for sauce." "Not know the Latin for sauce!" exclaimed Mr. Conkling; "why, it's mentioned twice in half a line of Virgil—‘gravi jampridem saucia cura.


The counsel of Mr. Paul Bauer, the Coney Island pool seller, who has been pining for the ocean breezes the past week during an inforced occupation as nurse in Raymond street jail, Brooklyn, is protesting against Judge Moore's sentence on Mr. Bauer, not because it

is too long, but because it is too short. By the time your readers see this Judge Platt will have decided whether or not there is any thing in this protest. Meanwhile racing men will doubtless have been bestirring themselves to get the law authorizing pool-selling and betting generally on race-tracks through the Legislature. Their strong argument is that it is good for a country to have a fine breed of horses; that racetracks encourage the breeding of fine horses, and that without the patronage of those who are drawn to the races by the excitement of betting, racing associations could not support themselves. To this however it might be answered that if gambling on race-tracks were suppressed, the breed of "sports" might be improved. For at present as between the race-horses and the majority of the men who gather to see them run, the horses are by far the finer animals.

The other day I came in upon a theatrical manager as he was writing the following advertisement: "Wanted-A lawyer who can draw up a contract between a manager and an actor which the latter can't break." When I asked him in what paper he intended to insert it, he said: "It's a gag for the new burlesque I'm going to bring out. You don't suppose I'd advertise for such a contract. Why, it would be money thrown away. There's no such thing as a contract an actor can't break; at least not in this world. never knew a contract yet that was proof against a case of big head." A case of big head arises when an actor who makes a success in a small part immediately considers himself entitled to all the privileges of a star. GUSTAV KOBBE.

NEW YORK, March 18, 1885.



Editor of the Albany Law Journal:



Are you quite correct in your approval of Mr. Gilbert M. Tucker's criticism on the word enjoin as used by lawyers, and have they so perverted the mea to reverse it completely? According to Webster's Dictionary this verb is defined in its legal use "to prohibit or restrain by a judicial order or decree; and there is quoted, as an authority, a sentence from Kent in these words: "This is a suit to enjoin the defendants from disturbing the plaintiffs." So in Burrill's Law Dictionary a similar definition is given: "To command a person from doing a thing; to prohibit or restrain by express command." In the same work will be found the law French verb "enjoyndre," from which enjoin is derived, and reference is made to the use of that word by Britton over two centuries ago, and it has been followed up and used in that sense to the present day by judges and commentators of the law, whose pure English has never before been questioned. You rightly advise Mr. Tucker to go for the barbarians who use "garnishee as a verb; but do enjoin him to spare the lawyers who use that forcible word enjoin, which is almost a necessity in certain judicial proceedings. If age and usage are to be regarded in establishing the proper use of the English language, the word enjoin has a fixed and definite signification in our legal lore; and it is unnecessary to displace it by having recourse "to the vilest newspaper slang, injuncted," or substituting any other word in its stead. C. B. S.


NEW YORK, March 10, 1885.

RELIEF OF THE COURT OF APPEALS. Editor of the Albany Law Journal:

I have read with great interest the letter of your correspondent "Y." in your issue of February 21, and the article under "Current Topics " of March 7, inst.. and while I appreciate the pressure of business al

ready before the Court of Appeals and its steadily increasing calendar, there seems to be a view of this subject that your correspondents have overlooked.

In our zeal to relieve that very worthy body of its onerous duties we should remember that our State is the largest in commercial importance of any, and contains the monetary center of the continent, hence it is no apology for us to refer to the courts of last resorts in other States, or to lament the larger amount of our legal business, and still impair the rights and opportunities of suitors to find a remedy.

Let us look for a moment at some branches of the courts; to illustrate, take the Surrogate Court of any county of New York State, and assume that we found the present Surrogate Court unable to hear and determine all cases that came before it. Would we restrict men from leaving estates, or prohibit dying? And still a large number of the cases in the Court of Appeals come up from that court. Another illustration might be drawn from the United States Patent Office. Many worthless inventions are patented. Can we say that a device must be rejected because the cost of the same and the interests it affects are small? By no means; to do so would cripple the industries of our whole country.

If we have sufficient business for twenty-one judges, why not employ them, and let them work in three seotions, but in harmony with each other, and so classify them that while all do not hear the argument, the opinion in every case embodying any new question, or wherein the entire seven judges who hear the argument are not unanimous, or any case wherein they deem that justice will be promoted thereby, shall be read before all the judges, and concurred in by a majority, thus seven judges would hear and decide every case, and cases involving close questions and such as are of especial magnitude, would receive the scrutiny and thought of twenty-one.

Since the writer of this has been connected with the courts of this State the amount has substantially been made to determine in many cases the merits of the coutroversy by making only those cases involving a certain amount or upwards appealable to that court; this together with the compulsory stipulation for judgment absolute, renders it upon the border line of discrimination in favor of restricting appeals to the few, a practice in my judgment most pernicious, and unworthy the great Empire State.

These are but suggestions, which we hope may call out the thoughts and opinions of other and abler minds upon both sides of this important subject.

In the meantime we await with much interest any elaboration that "will amount to satisfactory demonstration" that a class of counsel for the Court of Ap peals and for work in banc will ever be of very much service to suitors (who are really the parties whose necessities are greatest) in facilitating their rights or interests.

ROCHESTER, March 9, 1885.


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HE following decisions were handed down Tuesday, March 17, 1885:

Judgment reversed and judgment on case ordered for defendant-Theodore H. Benedict and another, respondents, v. William H. Webb, appellant.-Judgment affirmed with costs-Sylvia A. White, respondent, v. William Law, executor, appellant; George S. Allison, respondent, v. Rosa Schmitz and others, appellants; Margaret Parker, administratrix, respondent, v. Ulster and Delaware R. Co.-Judgment reversed, new trial granted, costs to abide the eventMayor, etc., of New York, appellant, v. Hannah A. Kelly, administratrix, etc., respondent.- -Order affirmed with oosts-William Custer, respondent, v. Green Point Ferry Co., appellant.- -Orders reversed with costs-Mary Emma Wyckoff, respondent, v. Seth W. Scofield and others, appellants.- -Motion for restitution denied, $10 costs-Ambrose S. Murray, etc., respondent, v. Robert H. Bedell and others, appellants. Motion for restitution granted, $10 costsMargaret C. Wallace, etc., respondent, v. Robert H. Rerdell, appellant.

The Albany Law Journal.

ALBANY, MARCH 28, 1885.

by age the business of their court will engross the time of twice the present number of judges, even if it is not the case now. But is anybody going to move in the premises? Where is the New York City Bar Association? Why do not some of its members give up kicking against the pricks of codification, and do the State a little real service by helping to provide some measure of relief in this exigency?




UR correspondents have recently discussed the subject of the relief of our Court of Appeals. We see no reason to change the opinion which we have long entertained and expressed, that the proper mode of relief is to have more judges and a double court. Our correspondent, E. M. M., ante, 21 admirably presents the reasons for this preferThere is probably very little disposition in any quarter to relieve the court by cutting off appeals, unless possibly appeals from interlocutory orders, and the like. But there is a disposition in a certain influential quarter to advocate resort to a commission, composed wholly or in part of certain of our Supreme Court judges who are not fully occupied at present. If any of the Supreme Court judges are not busy enough, they can have their hands full by judicious transfers in their own court. The radical objection to any commission is that it is a mere temporary expedient, whereas the State ought to have at all times a sufficient number of judges to dispose of the business without compelling suitors to wait for a " and block," then take up with the decision of pro tempore judges. We must look at the situation squarely, and confess that our seven judges cannot do the business, and never again will be able to, and that they will constantly be falling further behind. The growth of the State and its legal business inject for the treatment which has already been applied to the law of bills of exchange, bankruptcy, merchant shipping and joint-stock companies. His lordship despairs of the complete codification of the law of contracts, but we see no reashould not eventually be covered. It is a pity the son why in this piecemeal fashion the whole ground lord chancellor should have had to point to the legal members of Parliament as the chief obstacles to law reform — and the more pity because it is undoubtedly true." They will have a complete code in England before they know it, and they cannot do better than to go on copying us.

tained, would prove the unmitigated blessing it is expected to be, is a question we need not trouble ourselves to answer. A complete code will hardly be seen by the present generation, but the common law has now reached a stage of its development at which codification sets in as a natural and in

evitable process, and when, for good or bad, this process has once begun, its completion is only a matter of time. The lord chancellor points to the law of insurance as the next most promising sub

the last fifteen years has been enormous. What it will be in the next fifteen no man can predict. But resources should at once be provided sufficient to transact the probable business, and to do it intelligently and considerately. In doing what they now do our judges are overworked and hurried, and occasionally their work shows the inevitable result of lack of time for research and reflection only occasionally, however, for the correctness of their decisions on the whole is remarkable. But the continual growth of the calendar is a constant temptation to hurry and to overwork. There is no conceivable reason why there should not be a double court. Even a commission makes a double court for the time. We are prepared to hear some one object to the expense, and yet thousands of dollars are squandered every year in spoiling fair stone in the capitol with grotesque and inappropriate carving, without exciting much comment. Possibly - we do not know, it is only a suspicion our honored judges may have some personal feeling against a double court. But they ought not; the task before them is beyond their power, or the power of any other seven men, and they ought to welcome any scheme of permanent relief. The problem of adequately serving the State in its legal business is far above personal considerations. By the time the present judges are all disqualified VOL. 31-No. 13.

The London Law Times says: "Opinion in favor of codification is certainly growing-at any rate, among the laity. The strength of the deputation

from the Associated Chambers of Commere, which waited upon the Lord Chancellor last week, snows bankers, who have lately devoted a surprising very clearly that merchants, manufacturers and amount of attention to questions of law reform, have learned to expect very great things from the reduction of commercial law to a written system. It is easy to understand the longing for simplicity and precision which is at the bottom of this expection. Business men are not the only people who feel it. Whether a commercial code, when ob

Dr. Frank H. Hamilton has an article in the current number of Popular Science on "Medical Expert Testimony." It is designed as a defense of or apology for medical experts, but we cannot say it is very conclusive or advances any new ideas on the subject. The doctor, speaking of the constant disagreements of such experts, says "lawyers also do not often agree in opinion as to the merits of the cases of their respective clients." But the cases are very different. The lawyer sees only one side; the doctor sees both sides, or ought to. Doctor Hamilton is opposed, and wisely, we think, to the employment of permanent experts as advisers to the He candidly admits that all wisdom is not among the doctors"in reference to questions of


sanity or insanity, most men of intelligence who have reached adult life are experts." But the Doctor unconsciously illustrates the limitations of medical men as witnesses by a leaf from his own experience in the Cole-Hiscox case. He says: "The jury rendered a verdict of acquittal on the ground of unsound mind; but no medical expert had testified that Cole was insane. In the course of my examination as an expert witness, the court asked me whether I thought 'that Cole, at the time he committed the act for which he was under trial, knew the difference between right and wrong, and that the act was in violation of the law.' To which I replied in effect that Cole, being suddenly confronted by the man who had wronged him, did not probably consider whether the act which he was about to commit was in violation of the law or not.' If the jury made use of this reply to pronounce him insane, the responsibility of their verdict does not rest upon me. The verdict of 'unsound mind' was given, as it has been in many similar cases, because they did not think he ought to be punished for the act, and they were quite willing to give a very broad and partial interpretation to any testimony which in the remotest degree seemed to favor the defense. Subsequently from several sources I learned that my testimony, inferred only from the verdict, had been subjected to criticism." This shows how incapable most physicians are of answering a simple direct question. "Did he know the act was wrong and unlawful?" "Well, he probably did not think about it." That was no answer at all, and ought to have been struck out. Why couldn't he have said, "yes, but he was in such a passion that he did not stop to think, or he didn't care."

Dr. Francis Wharton has been appointed legal adviser to the State department of the Federal government on questions of international law. It is a good idea to make such an appointment, and no fitter man could be found for the place.

Messrs. G. P. Putnam's Sons, of the city of New York, have undertaken a very important and deserving enterprise in the publication of a new and complete edition of Alexander Hamilton's works. The only other complete edition is out of print, and dear. This is edited by Henry Cabot Lodge, and will be completed in nine volumes, the first of which is just issued, the remainder to follow at short intervals. It will embrace "The Federalist," which heretofore has been published only in a separate form. No better selection of an editor could have been made, as is shown by Mr. Lodge's excellent contributions to the series of "American StatesThe first volume is a sumptuous book, one of the most admirable examples of American bookmaking. The greatness of Hamilton has always been appreciated by his countrymen, but of late there seems to have been a revival of interest in the study of his character, career and writings. He


seems to us to have been the brightest genius among the remarkable group of men who founded our institutions, a born architect of States, who had by intuition a profounder knowledge of the principles of government than other men acquire by length of years, study and experience. In our times, when the question of finance is the most engrossing one in national affairs, his works are worthy of the most careful consideration. Although many of his ideas on State policy were in conflict with those which have obtained sway in this country, yet as a government financier he fully merits the magnificent praise bestowed on him by another great American statesman: "He smote the rock of our national resources, and abundant streams of revenue gushed forth; he touched the corpse of the public credit, and it sprang upon its feet." It is a curious reflection that however States may grow and wealth increase, the principles of finance and of general national prosperity are the same in all ages. Opening this volume at random, we smile at the statement that the States owe a debt of fifty millions, and that Hamilton hopes that it may be paid off, "without burthening the people," in twenty years! And yet Hamilton's theories are as respectfully studied now as when they were first advanced. We shall reserve further comment until the series is more forward in publication, and we shall have better opportunity to speak of this great man's genius and services as they deserve. But there is no time better than the present to say that every liberal lawyer ought to possess and study Hamilton's works, and that this promises to be decidely the best edition.



N Banks v. Manchester, United States Circuit Court, Ohio, the question of copyright in judicial decisions was decided by Sage, J. The plaintiff, contractor with the State of Ohio for the publication of volumes 41 and 42 of the State reports, sought to restrain the defendant, publisher of the American Law Journal, from publishing any of the decisions and opinions of the Supreme Court to be reported in those volumes. The head-notes in that State are prepared by the judges. The court said: "Nowhere in the statute law, relating to the publication of reports, is authority given to the reporter or to any other person to acquire a copyright in the decisions or opinions of the judges. This is significant, in view of the unanimous opinion of the justices of the Supreme Court of the United States in Wheaton v. Peters, 8 Pet. 668, that no reporter has or can have any copyright in the written opinions delivered by that court. The legislation in the State of Ohio must be considered to have been enacted with reference to that opinion, and therefore to have been intended to limit the provi sions above cited to the volumes of reports, and to exclude copyrights of the opinions of the judges. It is in accordance with sound public policy, in a

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