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('ONTRACT-RESTRAINT OF TRADE.- A., being a physi son, 20 id. 448, distinguished. A contract to deliver cian in J., sold his practice to B. and agreed never to ore of a certain weight, and of a certain price per ton, locate again in J. to practice medicine, and furtber, but where no time is fixed for the completion of the never to practise within five miles of J. Subsequently contract, nor any amount as a monthly delivery, aud B. agreed to permit A., on payment to him of $500, to where a payment is made before any delivery, is an practice within five miles of J., but this agreement entire contract. 2 Pars. Cont. 29-31. To determine contained the further clause: Nothing herein con the value of ore which has been found unfit for the tained shall refer to or include any place without the uses for which it was sold, evidence is admissible to limits of the city and county of P.!! A. practiced show its ufitness for other purposes. The legal measafterward within five miles of J., and outside of the ure of damages when inferior ore has been furnished city and county of P., without objection on the part is the difference between the contract price of the oro of B., who frequently saw him and met him in con and the market value. Where shipnients have been sultation. Held, that in view of the construction received without any protest by the buyer, or induceplaced upon the supplementary contract by the par ments by the seller, the dates for estimating the marties, it must be taken only to preclude A. from locat- | ket price are the dates when the shipments were reing in J., and not to preclude him from practicing ceived. Interest should be allowed in all cases of without the city and county of P., within five miles of contract where it is the duty of the debtor to pay J. Caley v. R. Co., 80 Pem. St. 363. Pacson's Ap-money without a previous demand by the creditor; peul. Opiniou by Trunkey, J.

the debtor can only relieve himself of liability by ten[Decided May 19, 1884.]

dering payment of the debt. Where a definite time is

fixed for the payment of money the law imposes the PARTITION-LESSEE FOR YEARS— MUST HAVE NOTICE. obligation to pay damages by way of interest at the -A lease for twenty years of an exclusive right for the legal rate for the detention of the money after the role and only purpose of mining and excavating for breach of the contract for its payment. Foote v. petroleum in one-half of certain lots, in alternate Blanchard, 6 Allen, 221. The right to interest upon quarters, passes an interest in the land to the lessee.

money owing upon contract depends not on discretion He has an estate in the land, and not a lien merely. but upon legal right. Dana v. Fiedler, 12 N. Y. 40; Hence the lessee is not bound by an amicable parti- Adams v. Fort Plain Bank, 36 id. 255, “It is a legal tion made by a purchaser under a mortgage of the in- and uniform rate of damages, iu absence of any exterest of one of the tenants in common who owned

press contract, when payment is withheld after it has said lots with the other tenants in common, which di- become the duty of the debtor to discharge the debt." vides the land to his prejudice. See (hicago, etc., | Minard v. Beans, 61 Ponn. St. 411. If that was a dicMining ('o. v. U. S. Petroleum (Co., 57 Penn. St. 83; , tum we think it accords with the policy of this State. Long's Appeal, 77 id. 151; 1 Daul. Ch. 257;1 Story Eq.

Soon after this court decided that no judgment could Jur., $ 656. Under the statute of 32 Henry VIII, ch. bear interest from the date of the verdict on which it 3:2 (reported by the judges to be in force in Pomeyl

was entered, unless entered on the same date, the Legvania), no person having an interest in the land, oven

islature enacted that it shall be lawful for a party in as a tenant for years, can be prejudiced by a partition whoso favor a verdict may be rendered for a sum of thereof to which he is not a party. In support of the

money, after judgment thereon, to collect interest position that a person who has not a freeholil interest

from the dato of the verdict. Where land is taken by in the land cannot be mado a party in partition with a corporation in the exercise of eminent domain, inthe owners of the fee, the plaintiffs cite McKee v.

terest should be added to the amount of damages from Straub, 22 Binn. 1: Long's Appeal, 77 Penn. St. 151; and the time the landowner was entitled to compensation. Mark v. Mark, 9 Watts, 410, The last two cases are Delaware B. ('o. v. Burson, 61 Penn. St. 369. Genernot in point. Mark v. Mark was decided on the ally in this country interest is looked upon as an inground that neither the widow nor the executors of a cident of the money, to be paid with the principal decedent, who was a tenant in common in his life when the latter has been withheld after it became the time, had an estate in the land. Long's Appeal ruled duty of the debtor to pay it. The conflict on this subthat a mortgageo cannot be a party in partition of ject between the English and American cases need not land owned by the mortgagor and others as tenants in

be uoted, nor would it profit to note some exceptional common, and that the lien of the mortgage attached cases in this country. West Rep. Dining Co. v. Jones. to the part taken by the mortgagor in severalty. In Opinion by Trunkey, J. McKee v. Straub the decision was put on two grounds, [Decided Jan. 5, 1885.] 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 re

CRIMINAL LAI. ceived very brief remark, and neither counsel nor court noted the statute of 3:2 IIenry VIII, ch. 32. Ilad

INDICTMENT-ALLEGATIONS-PERJURY - ELECTION that statute been brought to the attention of the

LAW-REGISTERS ARE JUDICIAL OFFICERS—"IMFAMcourt, instead of others which did not touch the point,

(US CRIME."the reversal might have been on the first ground alone.

”—(1) lu an indictment for perjury under

the statuto (Code, art. 30, § 155) it is sufficient to Bo that as it may, it seems clear that the statute was not considered, and that misconstruction thereof is maliciously and falsely.” It is not necessary to aver

charge that the traverser sworo willfully, knowingly, not demanded by the decision. Duke v. IIugue. Opinion by Trunkey, J.

that he sworo “corruptly." 1 Whart. Am. Cr. Law, $

364; State v. Elborn, 27 Md. 488; Cearfoss v. State, [Decided Oct. 6, 1881.]

42 id. 406; Parkinson v. State, 14 id. 198. (2) The LegSALE-ORE BY SAMPLE-RULE IN PENNSYLVANIA- | islature having devolved upon the officers of registraCONTRACT ENTIRETY--DAMAGES-INTEREST.--Although tion, as well as the judges of election, the duty of exa sale by sample does not constitute a warranty inercising judgment in the discharge of their functious, Pennsylvania, a stipulation that future deliveries will their office is in its nature judicial; and the proceedequal the sample is enforceable, and it is inmaterial to ing before the oMicer of registration is quasi judicial. determine whether such stipulation is a warranty or Bevard v. Iloffman, 18 Md. 479; Friend v. Hammill, 34 condition. Boyd v. Wilson, 83 Penn. St. 319; War- id. 314. (3) An indictment charging that the traverser, ren v. Philadelphia Coal Co., idd. 137 ; Wetherill v. Neil in answer to the questioning of an officer of registra


ever too narrow, for perjury is a misdemeanor, but by | TIC.

tion, had falsely sworn that he had not been convicted guilty knowledge.” Com. v. Sheppard, 1 Allen, 581.
of an infamous crime, and had not been pardoned by In case of murder by poisoning evidence of previous
the governor of the State, is defective in not sufficiently acts of poisoning is admissible. Rex v. Gearing, 18
averring the offense of perjury. It should have L. J. 215; seo also King v. Wylie, 1 B. & P. 92; Reg. v.
averred that the accused was convicted of some speci- Bleasdale, 2 (!. & K. 765. For the purpose of proving
fic crime which was “infamous,'' and which subjected guilty knowledge evidence is admissible that the de-
him to the constitutional disability of evor voting in fendant had previously passed similar counterfeit
the State, and to the punishment for perjury coins, although indictments therefor are pending.
for having falsely denied the sanie oath. 1 ('om. v. Stearus, 10 Metc. 256. “Although facts may
Whart Cr. Law, $$ 285, 288. (4) The statement of be pro ved not connected with the transaction consti-
the offense charged in an indictment must be clear, tuting the crime to establish guilty kuowledge, yet
distinct and exact, so that the accused may be fully they are to be regarded as competent because they
informed of what he is cbarged with, and wherein his tond directly to prove an essential element of the
conduct has been supposed to be indictable, so that he crimo, to wit: guilty kuowledge of a given fact." Per
may be able to refute it, if he can. Maguire v. State, Church, C. J., in ('opperman v. People, 56 N. Y. 591.
47 Md. 186. (5) The Constitution in providing for the • Whenever the intent or guilty knowledge of a party
exclusion from suffrago of any person convicted of an is a material ingredient in the issue of a case, then col-
“infamous crime" must be understood to have in- | lateral facts, that is, other acts and declarations of a
tended, by the language used, such crimes as were “in similar character tending to establish such intent or
famous” at common law, and are described as such in knowledge, are proper evidence." Trogdon's case, 31
common-law authorities. An'infamous crime" is such Gratt. 872; see also ('oleman v. People, 58 N. Y. 555;
crime as involved moral turpitude,or such as rendered 3 Ohio St. 130. Such evidence is deemed admissible
the offender incompetent as a witness in court, upon whenever it is necessary to establish guilty knowledge.
the theory that a person would not commit so heinous People v. Gray. ()pinion by Morrison, J. [5 West
a crimo unless he was so depraved as to be unworthy Coast Rep. 69.]
of credit. 1 Abb. Law Dict. 602, and authorities thero
cited. The General Court of this State, in 2 H. &

McH. 378, defined “infamous crime” to be one which
rises at least to “tho grade of felony." This is how-

VIIE commencement exercises of the Albany Law all authority is “infamous.” Maryland Ct. of App.,

School took place at the ('linton Square PresbyApril Term, 1884. State v. Bixler. Opinion by Irving,

terian (hurch, ou the 28th inst. Orations were delivJ. [62 Md. 354.]

ered by Edward (). Woods, of Marion, S. ('., on Legal

Development; Charles L. Smith, of Champaign, IlliEMBEZZLEYENT-EVIDENCE OF SIMILAR OFFENSES. nois, on Elements of Success; and Louis W. Pratt, of In a prosecution for embezzlement of public moneys, Albany, N. Y., on Some of tho Reasons why the ('omevidence of similar acts of embezzlement is admissible mon-Law should not be codified. The valedictory for the purpose of showing a guilty knowledge and a was delivered by Henry L. Landon, of Troy, N. Y., criminal intent on tho part of the accused. The court on the Lawyers and the Law. These exercises were should instruct the jury as to the purpose of such evi. of an unusually high order, evincing distinctive and dence, if so requested by the defense; but in the ab- shining merits. Those by Mesers Pratt and Landon sence of such a request, a failure to so instruct is not were as good as we erer heard on such an occasion. ground for a reversal. In the caso at bar the avowed The address to the graduates, by Justice Judson S. object of the clistrict attorney in introducing evidence Landon, of Schenectady, N. Y., President pro tem. of of other acts of embezzlement of public moneys by the Union ('ollege, was an excellent production. Some of defendant was simply to prove a guilty knowledge, its ideas wero especially striking. Nothing could be and a criminal intent in the appropriation of the $700 better than Lawyers excel not so much in the pracdescribed in the information, and there are numerous tice as in the perception of virtue." The candidates authorities holding that the evidence admitted is were presented by Horice E. Smith, the Dean, and the competent for that purpose. In Whart. Ev., § 46 et diplomas were conferred by Judge William L. Learned, scq., it is said that where the party's guilty knowledge of Albany, President of the board of trustees. The is involved acts of a similar nature aro admissible. See following is a list of the graduating class : also Roscoe's ('r. Ev. 88, 89, 90. On an indictment for Frank M. Andrus, Roxbury; Rowley J. Barrus, receiving stolen goods eridenco may be given of the Pike; Henry D. Bordan, Fort Wayne, Ind. ; Frederreceipt of several other stolen articles for the purpose ick E. Converse, Palmyra; Geo. F. ('orts, Schodack; of proving guilty knowledge. State v. Goetz, 31 Mo. (Charles E. ('ountryman, Albany; Loyal l.. Davis, 85. So where a party is indicted for forgery and ut Glens Falls; John F. Dorthy, Watkins; Zeb. A. Dyer, toring with a guilty knowledge a forged bill of ex Albany;1[erman ('. Grupe, Schenectady; Arthur II. change, it was held that other forged bills found on the IIarllee, Marion, S. ('. ; John Hoxie Hlinkley, Bangor, prisoner might be shown in evidence. Spencer v. Mo.; Lewis E. (. Finkley, Bangor, Me.; Frank B. Com., 2 Leigh, 751. On an indictment for an assault | Ilodges, Delphi; Bernarıl W. Iloye, Downsville; IIorwith an intent to commit rapo, previous assaults on ace Ketchum, Albany; Henry L. Landon, Troy; John the prosecutrix with similar intent are competent R. Langar, Albany; llorace W. Love, Rutland, Vi.; evidence. Williams v. State, 8 Humph. 585. So on George E. Lukens, Markleerille, (al.; Job. P. Lyon, an indictment for administering sulphuric acid with Troy; John Madden, Rondout; (lement ( Martin, an attempt to kill horses, administering at different | Albany; Frank L. Michael, Troy; George E. Morris, times for a like purpose, was admitted to be shown. Horseheails; John J. ()'Neill, Albany ; Spencer B. ParRex v. Mogg, 4C. & P. 361. Where a person is indicted ker, Versailles; James P. Phillip, ('atskill; Louis W. for maliciously shooting, Mr. Russell says that proof Pratt, Albany ; Ilenry W. Proulty, Painesville, Ohio; may be given that thio prisoner at another time inten- Solan A. Putnam, San Marcial, N. II. ; C'has. M. Reed, tionally shot at the samo porson. On ('rimes, rol. 2, Sinclairville; Ernest W. Rieck, Albany; Frank P.

“Evidence of another act of embezzlement by Schmitt, Jr., Chicago, Ill. ; (has. L. Smith, Chamthe defendant during the same week in which that paign, Ill. ; IIalbert I). Sterens, Malone; Thos. ('. Sumcharged in the indictment was alleged to have been merhill, Pennsgrore, N. J.; Geo. Tiffany, Quaker committed was competent for the purpose of proving Street; IIenry Trowbridge, Thomaston, Me.; Henry


p. 777.


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E. Warner, Albion ; Edward (). Woods, Marion, S. C.; Soule and Bugbee. The cases were decided about Abram Newcomb, Luzerne.

1753-4, and are of slender interest. We do not underThe class day exercises were held at the Law School stand that Mr. Dunning argued and adjudged them, building, on the evening of the 20th inst., and were as although the title-page says so.

There is a good porfollows: President's Address by J. P. Philip; Poem trait of the reporter prefixed. by II. I). 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


HE following decisions were handed down TuesNEW BOOKS AND NEW EDITIONS.

day, June 2, 1885 : Judgment reversed, new trial granted, costs to abide

event-Kathleen Hickey, iufant, etc., respondent, v. GILBERT'S The RAILROADS AND THE COURTS.

John P. Taaffe, appellant. — Judgment of Supreme Under this title Mr. Hiram T. Gilbert, of Ottawa,

Court and ('ourt of ()yer and Terminer reversed and Illinois, writes and himself publishes the breeziest book that has blown across our path in many a day. It

new trial granted-People, respondent, V. James L.

Lyon, appellant. -Order of General Term, so far as is good warm weather reading, and it is for reading rather than for reference. It consists in a very in

it modifies that of Special Term, reversed. Order of

Special Term atfirmed with costs in all courts—People genious, industrious, aud vigorous exposure of the

ex rel. M. F. Collins, appellant, V. Johu D. Spicer, inconsistencies of the courts of Illinois in railroad The author apologizes for his

comptroller, etc., respondent.cases.

-Judgment reversed, short

new trial granted, costs to abide event-Charles W. comings as follows: “C'ertainly, when the Supreme Court are compelled to acknowledge, as they did in

("ook, infant, etc., respondent, v. LaLance and Grosthe Ililson case, 91 111. 136, that in the Ferguson case,

jean Manfg. Co., appellant. -Order of General Term 90 111. 510, they had unanimously overlooked that pro)

reversel and certiorari quashed in first case, order af

firmed in the other—People ex rel. part of Cayuga Iuvision of our constitution which declares that the ('ircuit Court shall have original jurisdiction of all

dians residing in Canada, respondents, v. Board of causes in law and equity, the errors of one humble

Commissioners of land oflice, appellants. Same v. State

of New York (Board of ('laims).-Judgment afmember of the profession, whose kuowledge of the law is derived chiefly from the Illinois reports, showa

firmed with costs—Health Department of New York,

appellant, V. James Purdon, respoudent.-Judgment be viewed with great charity.” But although the book

reversed, new trial granted, costs to abide event, will be soothing to the lawyers, the author makes

Alfred Knower et al., respondents, v. W. H. Reynolds, things hot for the judges. He lays down some forty "rules,'' like Wigram and Lawson, and in almost every

appellant. - As much of judgment of General Term instance he lays down a rule embodying the preciso

as awards judgment for plaintiff for six cents dam. contrary immediately afterward, and fortifies both by

ages should be reversed and new trial granted, costs

to abide event-Eliza A. Thomas, executrix, etc., apcitations from the Illinois reports. Thus: “Rule Thirtieth. Errors in the admission of evidence will be

pellant, v. New York Life Ins. Co., respondent.cured by instructions to the jury to disregard such

Judginent aflirmed with costs—Martin T. McMaban, evidence.” (64 Ill. 331.) “Rule Thirty-first. Errors

receiver of taxes, etc., respondent, y. Isaac S. Platt,

appellant.- Order affirmed with costs- People v. in the admission of evidence will not be cured by instructions to the jury to disregard such evidence.” (66

Western Union Tel. ('o., appellant, v. Commissioner III. 222.) Again : Rule Fourteenth. An instruccion

Taxes, etc., respondents. —Judgment affirmed with

costs-Susan E. G. Balcom, executor, etc., appellant, should not state the law in the language of the statute." (96 III. 1.2.) “Rule Fifteenth. It would be wn

v. State of New York, respondent. Affirmed with heard of to reverse because mn iustruction was given

costs-First National Bank of New York, respondent,

r. ('outinental National Bank of New York, appellant. in the language of the statute." (9 Ill. 7.1.) Once

-Judgment affirmed with costs-John W. Sandermole: “Rule Thiru. The jury should not be left at liberty to speculate on probabilities, but should be re

son, appellant, v. County of Kings, respondent.quired to be satisfined by the greater weight, of evi

Judgment allirmed with costs-Lewis N. Putnam, redence.” (65 III. 195.) “Rule Fourth. The jury should

spondent, v. N. Y. (. & II. R. R. Co., appellant.

Motion to recall remittitur. Denied with $10 costsonly be required to believe from the evidence, and should not be required to be satisfied from the evi.

Austin D. Moore v. Joseph Hegeman, dence." (833 111. 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

NOTES. own State-not in railroad cases, however we can easily believe that he has done so. At all events, he Ex-Judge Dillon is to deliver the address before the has constructed a very trenchant and damaging piece Bar Association of South Carolina next December. of criticisin, and is we bad not promised ourselves to His address at Saratoga last summer was one of the keep still about codification from now till next winter,

most original, vigorous and interesting ever made.we should say, under our breath and under favor, it

Behold how they love one another! The Texas LauJourshows the crying need of a ('ode.

nul, which has “borrowed ” our peculiar copyrighted

title-page device, without asking leave, thus faintly enDunnixG'S REPORTS.

courages the Terus Court Reporter, a new publication

in tbat State: “The first issue bears a very respectReports of Cuses argued and adjudged in tho court of King's able appearance, though its typographical execution

Bench in the latter part of the reign of George the Second. could be much improved by the omission of a few of By John Dunning, Lord Ashburton. With Notes of Ref

the many errors appearing therein, and the meagercrence to English and American cases, by Charles G. ness of its head notes to cases furnish a very poor indiDelano. Boston, Goorge B. Reed, 1885. Pp. x, 65.

ciu to the contents of the opinions.”—A bad case of This is the most elegantly printed volume of law re mixed metaphor. The London Law Journal tells ports since the issuo of “Star Chamber ('ases,” by about “A charge coming home to roost."

The Albany Law Journal.

extend to Vau 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.

ALBANY, JUNE 13, 1885.


The Century for June has seven columns of fine type, partly editorial and partly communicated, on

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General Term, ground that his offense not one new nor a novel of an old was not a contempt, but an indictable misdemeanor The well-known causes are adduced, and the if any thing. And now, The Nation, after denounc

well-learned arguments are urged, and the welling Judge Van Brunt for his tyranuy in committing worn patience of suitors and readers is once more Munsell, denounces the General Term for the reasons tried. It is indeed amusing to hear a man in such which they give for discharging him. Verily, as hackneyed and long-drawn phrases reproach the we have said before, these newspapers are hard to judges for writing too long opinions. These critics suit. It is nonsense for them to defend Munsell.

set a very bad example for the courts. We may be It is incredible to suppose that so bright a man did allowed to say, at the risk of being accused of like not know that he was going out of his appointed vain repetition, that Mr. Hill, in his communication, way in taking that private view of the premises. unquestionably hits the two weak points of the adHe is no sool, as his vicarious communications to the ministration of justice - defects in the jury system newspapers show, and it will be impossible for him and sewness of judges. These may be subordinate to make unprejudiced people believe him such a Canses, and these principal culises may well be dwelt fool as he tries to make himself appear. “Poor upon and elaborated, but after all, here we have it, man,” says The Nation. Not at all. Simply an of and the long discussion, or rather assertion, of The ficious, over-busy, would-be influential man, sharper Century does not enlighten nor enliven. What we than his fellows, and anxious to be sharper than the need and want is an oracle. Shall we find it in the public prosecutors and the courts. Ile deserved just report to the American Bar Association next August? such a punishment as he got — not that punishment, We hope so, but we shall see. perhaps—so the General Term say, and they are prol)ably right - but an exemplary warning, and we hope he will place what he got to the account of We give a great deal of space this week to “Imwhat he ought to have had. It would probably be portant institutions in relation to Citizenship, Domiunjust now to inflict a conviction under indictment cile and Marriage," a correspondence between the upon him, although he may technically deserve it, Federal Secretary of State, by Dr. Wharton his but if he is a wise man, as he would fain have us legal adviser, and the Attorney-General of the Unthink he is not, let him reflect on what he deserved ited States, on these important topics. We regard and call it square.

the modifications which have been made as emi

nently judicious, and they show the wisdom of the But The Nution says: “It is, of course, greatly to State Department in calling to its assistance so disbe regretted that such acts as Judge Van Bruut's tinguished, so learned, and so influential i jurist can be committed with impunity in a community as Dr. Wharton. like this. In a more sensitive state of public opinion it would not pass unpunished. We print below The Indiana Larr Jaguzine says: “IIaving faithan account of the impeachment of a Federal judge fully performed their duties in aid of the Supreme for abusing his discretionary power by imprisoning Court, the commissioners, at the close of their legal a man for a single day. But impeachment is too term, have gracefully retired to the ranks again. slow and expensive a process in this state to be at Judge Black has opened a law office at No. 211 tempted by a private individual without aid from West Washington street, in Indianapolis; Judge the bar.” The case of Peck is the one alluded to. Franklin is successfully recruiting his health for the Under the decision in Lange's action against Judge present in the corn-field; and Judges Best, Bicknell, Benedict, Munsell could not maintain an action for and Colerick have re-entered practice respectively damages, and we very much doubt that there is even at Waterloo, New Albany und Fort Wayne. We a colorable ground of impeachment. There is a great wish them all success." So do we. But why did difference between the two cases. Benellict hac not the State retain them as proper judges? It is no authority to ilo (my thing more

he had ex

very likely to need more judges; indeed, the need hausted his power; Van Brunt certainly had author seems present. Commissions are unpopular, deservity to do something - he had not exercised his cdly so. The Indiana Commission has clone as well power. We are not certain that cven Benedict as any that we know of, but the decisions of comought to have been impeached, assuming that il missions are doomed to have scant popular respect, judye ought to be impeached for a single grossly as the decisions of " journeymen" judges. Popuwrong act; but we confess his case comes pretty near lar respect is essential in this matter. There are the line. Van Brunt's does not approach it. If other objections to commissions, which we need not The Nation were not too hot for reflection, it would | specify now. Again we wish the down-coming

Vol. 31 — No. 24.

judges success. But in the present condition of The union of church and State is an evil alliance. legal business we suspect that Judge Franklin will A great stride onward was made in the development have the best practice, although it is uphill work. of jurisprudence when it was emancipated from the

thraldom of theologians and the divorce between It is rather difficult to say any thing new, espec

the two sciences was decreed to be absolute. The ially in the form of 'good advice,” in an address to priesthood cannot be too highly respected within graduating students; but Mr. Arthur Rodgers con

their spheres of duty nor the holy office too trived to do it in his address at Hastings College

highly exalted in public opinion, but makers and of the law, at San Francisco, last month. He said: judges of law the ecclesiastics can never be with“Do not locate"-(we wish he had given us some

out prodignus evil resulting to society." He says of thing new instead of “locate ') – “in the place of

codification : “The common law system of special your childhood or youth. Life is too valuable to pleading was the product of speculative and illiberal Waste in developing respect for your ability among thought. Its rules, like many others of the harsh your school fellows and relatives. Some patroniz

technical doctrines of the ancient law, have fallen ing friends might indeed sufficiently confide in your

before the spirit of progress.

A real and a lasting youthful ardor to place in your hands ancient

stride in tho progress of development was taken by

promissory notes for collection, or claims to Mexican substituting the code system for that of the comgrants long since barred by the statute of limit

mon law." He dwells largely on precedents, obations, or claims against debtors who have furnished serving among other things: “It is the power of the initial practice of every lawyer of the genera- precedent that produces certainty and dispels tion. But there is more welcome for a young law

doubt and confusion. Without precedents judges yer, more manly encouragement from strangers, than would, in the great majority of cases, be invested all the condescending relatives and patronizing with arbitrary power, and arbitrary power in any friends of your youth." IIe also well says: " There

hand is an evil of great magnitude. Bacon justly are likely to be as many principles of law involved

observes: "For as that law is ever the best which in a ten-dollar suit and more danger of losing it

leaves the least to the breast of the judge, so is that than an action involving thousands of dollars on the judge the best who leaves least to himself.' Precedsame subject.”

ents are potent agencies in producing the system

which Bacon declares the best. Without them we In speaking of the recent defeat of Judge Cooley,

should have cases decided according to arbitrary the American Law Reriei cites this journal as point- rules, and these rules as various and different as the ing “to his defeat as an evidence of the evils of

notions of the different judges.” The whole adelecting judges by the popular vote.” We protest

dress is characterized by vigor, sound sense, liberal against this implication. We are in favor of the learning, and a graceful style. 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.

NOTES (1 CASES. The people make the best choice in the greater number of instances, and as for this miscarriage we? IN

N Decker v. Gaylord, 35 llun, 584, it was held that can only say, with the Reviern, that “it is the result of

communications made in good faith and in a one of those popular ebullitions which are liable to proper manner to a school commissioner by a resioverthrow the wisest measures and the wisest men.”

dent of the district, charging the woman then But it would require a great many such cases to teaching in the district with unchastity and the use convince us that it is good policy for the judicial of profane and obscene language, are privileged; department of the government to be selected by the

that the presumption is that the communication is executive.

in good faith, and the burden of proving actual

malice is on the opposite party; and that the falsity Judge Elliott, of Indiana, recently delivered an of the charge is not of itself sufficient to raise an ininteresting address at the commencement of the

ference of malice. The court said: “The defendants' Law School of De Pauw University, on the Develop

testator was lawfully permitted, in good faith and in ment of Jurisprudence. Of priestly law-making he a proper manner, to make communication to the comsays: “It is not doubted that the best system of missioner in respect to the conduct and moral charjurisprudence is that system, which, in its fnnda acter of the school teacher of his district, and to state mental principles, is in close harmony with the what he honestly believed to be the truth, although doctrines of pure religion, but while this is true, defamatory of her character.

defamatory of her character. And the presumption it is also true that a jurisprudence framed and ad is that a communication made by a person authorministered by priests is never a good one. Priest ized by his relation to the subject, or to the society government is always an evil. Theology is a noble interested, to a person or body having authority to science, but the theologian is seldom a wise law act in the premises, is made in good faith, and his giver or a just judge. Theology and jurisprudence liability to the party aggrieved is dependent on are essentially distinct sciences, the one governs the actual malice which the plaintiff in an action therespiritual, the other the civil affairs of mankind. for assumes the burden to prove. The falsity of the

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