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CONTRACT-RESTRAINT OF TRADE.-A., being a physician in J., sold his practice to B. and agreed never to locate again in J. to practice medicine, and further, never to practise within five miles of J. Subsequently B. agreed to permit A., on payment to him of $500, to practice within five miles of J., but this agreement contained the further clause: Nothing herein contained shall refer to or include any place without the limits of the city and county of P." A. practiced afterward within five miles of J., and outside of the city and county of P., without objection on the part of B., who frequently saw him and met him in consultation. Held, that in view of the construction placed upon the supplementary contract by the parties, it must be taken only to preclude A. from locating in J., and not to preclude him from practicing without the city and county of P., within five miles of J. Caley v. R. Co., 80 Penn. St. 363. Paxson's Appeal. Opinion by Trunkey, J. [Decided May 19, 1884.]
PARTITION-LESSEE FOR YEARS-MUST HAVE NOTICE. -A lease for twenty years of an exclusive right for the sole and only purpose of mining and excavating for petroleum in one-half of certain lots, in alternate quarters, passes an interest in the land to the lessee. He has an estate in the land, and not a lien merely. Hence the lessee is not bound by an amicable partition made by a purchaser under a mortgage of the interest of one of the tenants in common who owned said lots with the other tenants in common, which divides the land to his prejudice. See Chicago, etc., Mining Co. v. U. S. Petroleum Co., 57 Penn. St. 83; Long's Appeal, 77 id. 151; 1 Danl. Ch. 257; 1 Story Eq. Jur., § 656. Under the statute of 32 Henry VIII, ch. 32 (reported by the judges to be in force in Pennsylvania), no person having an interest in the land, even as a tenant for years, can be prejudiced by a partition thereof to which he is not a party. In support of the position that a person who has not a freehold interest in the land cannot be made a party in partition with the owners of the fee, the plaintiffs cite McKee v. Straub, 2 Binn. 1; Long's Appeal, 77 Penn. St. 151; and Mark v. Mark, 9 Watts, 410. The last two cases are not in poiut. Mark v. Mark was decided on the ground that neither the widow nor the executors of a decedent, who was a tenaut in common in his lifetime, had an estate in the land. Long's Appeal ruled that a mortgagee cannot be a party in partition of land owned by the mortgagor and others as tenants in common, and that the lien of the mortgage attached to the part taken by the mortgagor in severalty. In McKee v. Straub the decision was put on two grounds, first, that the action had abated by the death of one of the parties; and second, that the tenants had not a freehold estate. The first was fatal. The second received very brief remark, and neither counsel nor court noted the statute of 32 Henry VIII, ch. 32. Had that statute been brought to the attention of the court, instead of others which did not touch the point, the reversal might have been on the first ground alone. Be that as it may, it seems clear that the statute was not considered, and that misconstruction thereof is
not demanded by the decision. Duke v. Hague. Opiniou by Trunkey, J. [Decided Oct. 6, 1884.]
SALE-ORE BY SAMPLE-RULE IN PENNSYLVANIA— CONTRACT ENTIRETY-DAMAGES-INTEREST.--Although a sale by sample does not constitute a warranty in Pennsylvania, a stipulation that future deliveries will equal the sample is enforceable, and it is immaterial to determine whether such stipulation is a warranty or condition. Boyd v. Wilson, 83 Penn. St. 319; Warren v. Philadelphia Coal Co., id. 437 ; Wetherill v. Neil- |
son, 20 id. 448, distinguished. A contract to deliver ore of a certain weight, and of a certain price per ton, but where no time is fixed for the completion of the contract, nor any amount as a monthly delivery, and where a payment is made before any delivery, is an entire contract. 2 Pars. Cont. 29-31. To determine the value of ore which has been found unfit for the uses for which it was sold, evidence is admissible to show its unfitness for other purposes. The legal measure of damages when inferior ore has been furnished is the difference between the contract price of the ore and the market value. Where shipments have been received without any protest by the buyer, or inducements by the seller, the dates for estimating the market price are the dates when the shipments were received. Interest should be allowed in all cases of contract where it is the duty of the debtor to pay money without a previous demand by the creditor; the debtor can ouly relieve himself of liability by tendering payment of the debt. Where a definite time is fixed for the payment of money the law imposes the obligation to pay damages by way of interest at the legal rate for the detention of the money after the breach of the contract for its payment. Foote v. Blanchard, 6 Allen, 221. The right to interest upon money owing upon contract depends not on discretion but upon legal right. Dana v. Fiedler, 12 N. Y. 40; Adams v. Fort Plain Bank, 36 id. 255, "It is a legal and uniform rate of damages, in absence of any express contract, when payment is withheld after it has become the duty of the debtor to discharge the debt." Minard v. Beans, 64 Penn. St. 411. If that was a dictum we think it accords with the policy of this State. Soon after this court decided that no judgment could bear interest from the date of the verdict on which it was entered, unless entered on the same date, the Legislature enacted that it shall be lawful for a party in whose favor a verdict may be rendered for a sum of money, after judgment thereon, to collect interest from the date of the verdict. Where land is taken by a corporation in the exercise of eminent domain, interest should be added to the amount of damages from the time the landowner was entitled to compensation. Delaware B. Co. v. Burson, 61 Penn. St. 369. Generally in this country interest is looked upon as an incident of the money, to be paid with the principal when the latter has been withheld after it became the duty of the debtor to pay it. The conflict on this subject between the English and American cases need not be noted, nor would it profit to note some exceptional cases in this country. West Rep. Mining Co. v. Jones. Opinion by Trunkey, J. [Decided Jan. 5, 1885.]
INDICTMENT-ALLEGATIONS-PERJURY LAW-REGISTERS ARE JUDICIAL OFFICERS-"IMFAMOUS CRIME."-(1) In an indictment for perjury under the statute (Code, art. 30, § 155) it is sufficient to charge that the traverser swore willfully, knowingly, maliciously and falsely." It is not necessary to aver that he swore ·· corruptly." 1 Whart. Am. Cr. Law, S 364; State v. Elborn, 27 Md. 488; Cearfoss v. State, 42 id. 406; Parkinson v. State, 14 id. 198. (2) The Legislature having devolved upon the officers of registra tion, as well as the judges of election, the duty of exercising judgment in the discharge of their functions, their office is in its nature judicial; and the proceeding before the officer of registration is quasi judicial. Bevard v. Hoffmau, 18 Md. 479; Friend v. Hammill, 34 id. 314. (3) An indictment charging that the traverser, in answer to the questioning of an officer of registra
tion, had falsely sworn that he had not been convicted of an infamous crime, and had not been pardoned by the governor of the State, is defective in not sufficiently averring the offense of perjury. It should have averred that the accused was convicted of some specific crime which was "infamous," and which subjected him to the constitutional disability of ever voting in the State, and to the punishment for perjury for having falsely denied the same on oath. 1 Whart. Cr. Law, §§ 285, 288. (4) The statement of the offense charged in an indictment must be clear, distinct and exact, so that the accused may be fully informed of what he is charged with, and wherein his conduct has been supposed to be indictable, so that he may be able to refute it, if he can. Maguire v. State, 47 Md. 486. (5) The Constitution in providing for the exclusion from suffrage of any person convicted of au "infamous crime" must be understood to have intended, by the language used, such crimes as were "infamous" at common law, and are described as such in common-law authorities. An infamous crime" is such crime as involved moral turpitude,or such as rendered the offender incompetent as a witness in court, upon the theory that a person would not commit so heinous a crime unless he was so depraved as to be unworthy of credit. 1 Abb. Law Dict. 602, and authorities there cited. The General Court of this State, in 2 H. & McH. 378, defined "infamous crime to be one which rises at least to "the grade of felony." This is however too narrow, for perjury is a misdemeanor, but by all authority is "infamous." Maryland Ct. of App., April Term, 1884. State v. Bixler. Opinion by Irving, J. [62 Md. 354.]
EMBEZZLEMENT EVIDENCE OF SIMILAR OFFENSES.In a prosecution for embezzlement of public moneys, evidence of similar acts of embezzlement is admissible for the purpose of showing a guilty knowledge and a criminal intent on the part of the accused. The court should instruct the jury as to the purpose of such evi, dence, if so requested by the defense; but in the absence of such a request, a failure to so instruct is not ground for a roversal. In the case at bar the avowed object of the district attorney in introducing evidence of other acts of embezzlement of public moneys by the defendant was simply to prove a guilty knowledge, and a criminal intent in the appropriation of the $700 described in the information, and there are numerous authorities holding that the evidence admitted is competent for that purpose. In Whart. Ev., § 46 et seq., it is said that where the party's guilty knowledge is involved acts of a similar nature are admissible. See also Roscoe's Cr. Ev. 88, 89, 90. On an indictment for receiving stolen goods evidence may be given of the receipt of several other stolen articles for the purpose of proving guilty knowledge. State v. Goetz, 34 Mo. 85. So where a party is indicted for forgery and uttering with a guilty knowledge a forged bill of exchange, it was held that other forged bills found on the prisoner might be shown in evidence. Spencer v. Com., 2 Leigh, 751. On an indictment for an assault with an intent to commit rape, previous assaults on the prosecutrix with similar intent are competent evidence. Williams v. State, 8 Humph. 585. So on an indictment for administering sulphuric acid with an attempt to kill horses, administering at different times for a like purpose, was admitted to be shown. Rex v. Mogg, 4 C. & P. 364. Where a person is indicted for maliciously shooting, Mr. Russell says that proof may be given that the prisoner at another time intentionally shot at the same person. On Crimes, vol. 2, p. 777. "Evidence of another act of embezzlement by the defendant during the same week in which that charged in the indictment was alleged to have been committed was competent for the purpose of proving
guilty knowledge." Com. v. Sheppard, 1 Allen, 581. In case of murder by poisoning evidence of previous Rex v. Gearing, 18 acts of poisoning is admissible. L. J. 215; see also King v. Wylie, 1 B. & P. 92; Reg. v. Bleasdale, 2 C. & K. 765. For the purpose of proving guilty knowledge evidence is admissible that the defendant had previously passed similar counterfeit coins, although indictments therefor are pending. Com. v. Stearns, 10 Metc. 256. "Although facts may be proved not connected with the transaction constituting the crime to establish guilty knowledge, yet they are to be regarded as competent because they tend directly to prove an essential element of the crime, to wit: guilty knowledge of a given fact." Per Church, C. J., in Copperman v. People, 56 N. Y. 591. "Whenever the intent or guilty knowledge of a party is a material ingredient in the issue of a case, then collateral facts, that is, other acts and declarations of a similar character tending to establish such intent or knowledge, are proper evidence." Trogdon's case, 31 Gratt. 872; see also Coleman v. People, 58 N. Y. 555; 23 Ohio St. 130. Such evidence is deemed admissible whenever it is necessary to establish guilty knowledge. People v. Gray. Opinion by Morrison, J. [5 West Coast Rep. 69.]
ALBANY LAW SCHOOL.
HE commencement exercises of the Albany Law THE School took place at the Clinton Square Presbyterian Church, on the 28th inst. Orations were delivered by Edward O. Woods, of Marion, S. C., on Legal Development; Charles L. Smith, of Champaign, Illinois, on Elements of Success; and Louis W. Pratt, of Albany, N. Y., on Some of the Reasons why the Common-Law should not be codified. The valedictory was delivered by Henry L. Landon, of Troy, N. Y., on the Lawyers and the Law. These exercises were of an unusually high order, evincing distinctive and shining merits. Those by Messrs Pratt and Landon were as good as we ever heard on such an occasion. The address to the graduates, by Justice Judson S. Landon, of Schenectady, N. Y., President pro tem. of Union College, was an excellent production. Some of its ideas were especially striking. Nothing could be better than "Lawyers excel not so much in the practice as in the perception of virtue." The candidates were presented by Horace E. Smith, the Dean, and the diplomas were conferred by Judge William L. Learned, of Albany, President of the board of trustees. The following is a list of the graduating class:
Frank M. Andrus, Roxbury; Rowley M. Barrus, Pike; Henry D. Bordan, Fort Wayne, Ind.; Frederick E. Converse, Palmyra; Geo. F. Corts, Schodack; Charles E. Countryman, Albany; Loyal L. Davis, Glens Falls; John F. Dorthy, Watkins; Zeb. A. Dyer, Albany; Herman C. Grupe, Schenectady; Arthur H. Harllee, Marion, S. C.; John Hoxie Hinkley, Bangor, Mo.; Lewis E. C. Hinkley, Bangor, Me.; Frank B. Hodges, Delphi; Bernard W. Hoye, Downsville; Horace Ketchum, Albany; Henry L. Laudon, Troy; John R. Langan, Albany; Horace W. Love, Rutland, Vt.; George E. Lukens, Markleeville, Cal.; Job. P. Lyon, Troy; John Madden, Rondout; Clement C. Martin, Albany; Frank L. Michael, Troy; George E. Morris, Horseheads; John J. O'Neill, Albany; Spencer B. Parker, Versailles; James P. Phillip, Catskill; Louis W. Pratt, Albany; Henry W. Proulty, Painesville, Ohio; Solan A. Putnam, Sau Marcial, N. M.; Chas. M. Reed, Sinclairville; Ernest W. Rieck, Albany; Frank P. Schmitt, Jr., Chicago, Ill.; Chas. L. Smith, Champaign, Ill.; Halbert D. Stevens, Malone; Thos. C. Summerhill, Pennsgrove, N. J.; Geo. Tiffany, Quaker Street; Henry Trowbridge, Thomaston, Me.; Henry
E. Warner, Albion; Edward O. Woods, Marion, S. C.; Abram Newcomb, Luzerne.
The class day exercises were held at the Law School building, on the evening of the 27th inst., and were as follows: President's Address by J. P. Philip; Poem by H. D. Stevens; History by F. L. Michael; Oration by F. M. Andrus; Prophecy by C. M. Reed. These exercises also were of unusual interest.
The Alumni had a business meeting and a banquet on the 28th inst.
NEW BOOKS AND NEW EDITIONS.
GILBERT'S THE RAILROADS AND THE COURTS. Under this title Mr. Hiram T. Gilbert, of Ottawa, Illinois, writes and himself publishes the breeziest book that has blown across our path in many a day. It is good warm weather reading, and it is for reading rather than for reference. It consists in a very ingenious, industrious, and vigorous exposure of the inconsistencies of the courts of Illinois in railroad cases. The author apologizes for his own shortcomings as follows: Certainly, when the Supreme Court are compelled to acknowledge, as they did in the Wilson case, 94 Ill. 426, that in the Ferguson case, 90 Ill. 510, they had unanimously overlooked that provision of our Constitution which declares that the Circuit Court shall have original jurisdiction of all causes in law and equity, the errors of one humble member of the profession, whose knowledge of the law is derived chiefly from the Illinois reports, should be viewed with great charity." But although the book will be soothing to the lawyers, the author makes things hot for the judges. He lays down some forty "rules," like Wigram and Lawson, and in almost every instance he lays down a rule embodying the precise contrary immediately afterward, and fortifies both by citations from the Illinois reports. Thus: "Rule Thirtieth. Errors in the admission of evidence will be cured by instructions to the jury to disregard such evidence." (64 Ill. 334.) "Rule Thirty-first. Errors in the admission of evidence will not be cured by instructions to the jury to disregard such evidence." (66 Ill. 222.) Again: "Rule Fourteenth. An instruction should not state the law in the language of the statute." (96 Ill. 42.) "Rule Fifteenth. It would be unheard of to reverse because an instruction was given in the language of the statute." (97 Ill. 74.) Once more: "Rule Third. The jury should not be left at liberty to speculate on probabilities, but should be required to be satisfied by the greater weight of evidence." (65 Ill. 195.) "Rule Fourth. The jury should only be required to believe from the evidence, and should not be required to be satisfied from the evidence." (83 Ill. 85.) Of course, we cannot vouch that the author has correctly deduced these rules in every instance, but in view of recent inconsistencies in our own State-not in railroad cases, however-we can easily believe that he has done so. At all events, he has constructed a very trenchant and damaging piece of criticism, and if we had not promised ourselves to keep still about codification from now till next winter, we should say, under our breath and under favor, it shows the crying need of a Code.
Reports of Cases argued and adjudged in the court of King's Bench in the latter part of the reign of George the Second. By John Dunning, Lord Ashburton. With Notes of Reference to English and American cases, by Charles G. Delano. Boston, George B. Reed, 1885. Pp. x, 65.
This is the most elegantly printed volume of law reports since the issue of "Star Chamber Cases," by
Soule and Bugbee. The cases were decided about 1753-4, and are of slender interest. We do not understand that Mr. Dunning argued and adjudged them, although the title-page says so. There is a good portrait of the reporter prefixed.
COURT OF APPEALS DECISIONS.
HE following decisions were handed down Tuesday, June 2, 1885:
Judgment reversed, new trial granted, costs to abide event-Kathleen Hickey, infant, etc., respondent, v. John P. Taaffe, appellant.- -Judgment of Supreme Court and Court of Oyer and Terminer reversed and new trial granted-People, respondent, v. James L. Lyon, appellant.-Order of General Term, so far as it modifies that of Special Term, reversed. Order of Special Term affirmed with costs in all courts-People ex rel. M. F. Collins, appellant, v. John D. Spicer, comptroller, etc., respondent.-Judgment reversed, new trial granted, costs to abide event-Charles W. Cook, infant, etc., respondent, v. LaLance and Grosjean Manfg. Co., appellant. -Order of General Term reversed and certiorari quashed in first case, order affirmed in the other-People ex rel. part of Cayuga Indians residing in Canada, respondents, v. Board of Commissioners of land office, appellants. Same v. State of New York (Board of Claims). Judgment affirmed with costs-Health Department of New York, appellant, v. James Purdon, respondent.—Judgment reversed, new trial granted, costs to abide eventAlfred Knower et al., respondents, v. W. H. Reynolds, appellant.- -As much of judgment of General Term as awards judgment for plaintiff for six cents damages should be reversed and new trial granted, costs to abide event-Eliza A. Thomas, executrix, etc., appellant, v. New York Life Ins. Co., respondeut.Judgment affirmed with costs-Martin T. McMahan, receiver of taxes, etc., respondent, v. Isaac S. Platt, appellant. Order affirmed with costs- People v. Western Union Tel. Co., appellant, v. Commissioner Taxes, etc., respondents.-Judgment affirmed with costs-Susan E. G. Balcom, executor, etc., appellant, v. State of New York, respondent.-Affirmed with costs-First National Bank of New York, respondent, v. Continental National Bank of New York, appellant.
-Judgment affirmed with costs-John W. Sanderson, appellant, v. County of Kings, respondent.Judgment affirmed with costs-Lewis N. Putnam, respondeut, v. N. Y. C. & H. R. R. Co., appellant.Motion to recall remittitur. Denied with $10 costsAustin D. Moore v. Joseph Hegeman,
Ex-Judge Dillon is to deliver the address before the Bar Association of South Carolina next December. His address at Saratoga last summer was one of the most original, vigorous and interesting ever made.— Behold how they love one another! The TexasLawJournal, which has "borrowed our peculiar copyrighted title-page device, without asking leave, thus faintly encourages the Texas Court Reporter, a new publication in that State: "The first issue bears a very respectable appearance, though its typographical execution could be much improved by the omission of a few of the many errors appearing therein, and the meagerness of its head notes to cases furnish a very poor indicia to the contents of the opinions."- A bad case of mixed metaphor. The London Law Journal tells about "A charge coming home to roost."
The Albany Law Journal.
ALBANY, JUNE 13, 1885.
HE juror Munsell has been discharged by the
was not a contempt, but an indictable misdemeanor if any thing. And now, The Nation, after denouncing Judge Van Brunt for his tyranny in committing Munsell, denounces the General Term for the reasons which they give for discharging him. Verily, as we have said before, these newspapers are hard to suit. It is nonsense for them to defend Munsell. It is incredible to suppose that so bright a man did not know that he was going out of his appointed way in taking that private view of the premises. He is no fool, as his vicarious communications to the newspapers show, and it will be impossible for him to make unprejudiced people believe him such a fool as he tries to make himself appear. "Poor man," says The Nation. Not at all. Simply an officious, over-busy, would-be influential man, sharper than his fellows, and anxious to be sharper than the public prosecutors and the courts. He deserved just such a punishment as he got not that punishment, perhaps so the General Term say, and they are probably right-but an exemplary warning, and we hope he will place what he got to the account of what he ought to have had. It would probably be unjust now to inflict a conviction under indictment upon him, although he may technically deserve it, but if he is a wise man, as he would fain have us think he is not, let him reflect on what he deserved and call it square.
But The Nation says: "It is, of course, greatly to be regretted that such acts as Judge Van Brunt's can be committed with impunity in a community like this. In a more sensitive state of public opinion it would not pass unpunished. We print below an account of the impeachment of a Federal judge | for abusing his discretionary power by imprisoning a man for a single day. But impeachment is too slow and expensive a process in this State to be attempted by a private individual without aid from the bar." The case of Peck is the one alluded to. Under the decision in Lange's action against Judge Benedict, Munsell could not maintain an action for damages, and we very much doubt that there is even a colorable ground of impeachment. There is a great difference between the two cases. Benedict had no authority to do any thing more- he had exhausted his power; Van Brunt certainly had authority to do something- he had not exercised his power. We are not certain that even Benedict ought to have been impeached, assuming that a judge ought to be impeached for a single grossly wrong act; but we confess his case comes pretty near the line. Van Brunt's does not approach it. If The Nation were not too hot for reflection, it would VOL. 31-No. 24.
extend to Van Brunt the same charity which it feels for Munsell and say poor man" in his behalf also. But again we say, to talk of impeachment is too nonsensical even for the newspapers.
The Century for June has seven columns of fine type, partly editorial and partly communicated, on the Delays of the Law, in which there is absolutely not one new idea nor a novel setting out of an old one. The well-known causes are adduced, and the well-learned arguments are urged, and the wellworn patience of suitors and readers is once more tried. It is indeed amusing to hear a man in such hackneyed and long-drawn phrases reproach the judges for writing too long opinions. These critics set a very bad example for the courts. We may be allowed to say, at the risk of being accused of like vain repetition, that Mr. Hill, in his communication, unquestionably hits the two weak points of the administration of justice - defects in the jury system and fewness of judges. These may be subordinate causes, and these principal causes may well be dwelt upon and elaborated, but after all, here we have it, and the long discussion, or rather assertion, of The Century does not enlighten nor enliven. What we need and want is an oracle. Shall we find it in the report to the American Bar Association next August? We hope so, but we shall see.
We give a great deal of space this week to "Important institutions in relation to Citizenship, Domicile and Marriage," a correspondence between the Federal Secretary of State, by Dr. Wharton his legal adviser, and the Attorney-General of the United States, on these important topics. We regard the modifications which have been made as eminently judicious, and they show the wisdom of the State Department in calling to its assistance so distinguished, so learned, and so influential a jurist as Dr. Wharton.
The Indiana Law Magazine says: Having faithfully performed their duties in aid of the Supreme Court, the commissioners, at the close of their legal term, have gracefully retired to the ranks again. Judge Black has opened a law office at No. 241 West Washington street, in Indianapolis; Judge Franklin is successfully recruiting his health for the present in the corn-field; and Judges Best, Bicknell, and Colerick have re-entered practice respectively at Waterloo, New Albany and Fort Wayne. We wish them all success." So do we. But why did not the State retain them as proper judges? It is very likely to need more judges; indeed, the need seems present. Commissions are unpopular, deservedly so. The Indiana Commission has done as well as any that we know of, but the decisions of commissions are doomed to have scant popular respect, as the decisions of "journeymen" judges. Popular respect is essential in this matter. There are other objections to commissions, which we need not specify now. Again we wish the down-coming
judges success. But in the present condition of legal business we suspect that Judge Franklin will have the best practice, although it is uphill work.
It is rather difficult to say any thing new, especially in the form of "good advice," in an address to graduating students; but Mr. Arthur Rodgers contrived to do it in his address at Hastings College of the law, at San Francisco, last month. He said: "Do not locate "-(we wish he had given us something new instead of "locate ")— "in the place of your childhood or youth. Life is too valuable to waste in developing respect for your ability among your school fellows and relatives. Some patronizing friends might indeed sufficiently confide in your youthful ardor to place in your hands ancient promissory notes for collection, or claims to Mexican grants long since barred by the statute of limitations, or claims against debtors who have furnished the initial practice of every lawyer of the generation. But there is more welcome for a young lawyer, more manly encouragement from strangers, than all the condescending relatives and patronizing friends of your youth." He also well says: "There are likely to be as many principles of law involved in a ten-dollar suit and more danger of losing it than an action involving thousands of dollars on the same subject."
In speaking of the recent defeat of Judge Cooley, the American Law Review cites this journal as pointing "to his defeat as an evidence of the evils of electing judges by the popular vote." We protest against this implication. We are in favor of the popular election of judges, and only spoke of the result in Judge Cooley's case as likely to prove a strong argument for the opponents of the system. The people make the best choice in the greater number of instances, and as for this miscarriage we can only say, with the Review, that "it is the result of one of those popular ebullitions which are liable to overthrow the wisest measures and the wisest men." But it would require a great many such cases to convince us that it is good policy for the judicial department of the government to be selected by the
Judge Elliott, of Indiana, recently delivered an interesting address at the commencement of the Law School of De Pauw University, on the Development of Jurisprudence. Of priestly law-making he says: "It is not doubted that the best system of jurisprudence is that system, which, in its fundamental principles, is in close harmony with the doctrines of pure religion, but while this is true, it is also true that a jurisprudence framed and administered by priests is never a good one. Priest government is always an evil. Theology is a noble science, but the theologian is seldom a wise lawgiver or a just judge. Theology and jurisprudence are essentially distinct sciences, the one governs the spiritual, the other the civil affairs of mankind.
The union of church and State is an evil alliance. A great stride onward was made in the development of jurisprudence when it was emancipated from the thraldom of theologians and the divorce between the two sciences was decreed to be absolute. The
priesthood cannot be too highly respected within their spheres of duty nor the holy office too highly exalted in public opinion, but makers and judges of law the ecclesiastics can never be without prodigous evil resulting to society." He says of codification: "The common law system of special pleading was the product of speculative and illiberal thought. Its rules, like many others of the harsh technical doctrines of the ancient law, have fallen before the spirit of progress. A real and a lasting stride in tho progress of development was taken by substituting the code system for that of the comHe dwells largely on precedents, observing among other things: "It is the power of precedent that produces certainty and dispels doubt and confusion. Without precedents judges would, in the great majority of cases, be invested with arbitrary power, and arbitrary power in any hand is an evil of great magnitude. Bacon justly observes: For as that law is ever the best which leaves the least to the breast of the judge, so is that judge the best who leaves least to himself.' Precedents are potent agencies in producing the system which Bacon declares the best. Without them we
should have cases decided according to arbitrary rules, and these rules as various and different as the notions of the different judges." The whole address is characterized by vigor, sound sense, liberal learning, and a graceful style.
NOTES OF CASES.
N Decker v. Gaylord, 35 Hun, 584, it was held that
proper manner to a school commissioner by a resident of the district, charging the woman then teaching in the district with unchastity and the use of profane and obscene language, are privileged; that the presumption is that the communication is in good faith, and the burden of proving actual malice is on the opposite party; and that the falsity of the charge is not of itself sufficient to raise an inference of malice. The court said: "The defendants' testator was lawfully permitted, in good faith and in a proper manner, to make communication to the commissioner in respect to the conduct and moral character of the school teacher of his district, and to state what he honestly believed to be the truth, although defamatory of her character. And the presumption is that a communication made by a person authorized by his relation to the subject, or to the society interested, to a person or body having authority to act in the premises, is made in good faith, and his liability to the party aggrieved is dependent on actual malice which the plaintiff in an action therefor assumes the burden to prove. The falsity of the