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pany from stipulating for immunity from the consequences of its own wrongful acts, it seems very clear to us that there can be no consideration for such stipulation on the part of the sender of the message, and that, so far as he is concerned, it is void for that reason, although exacted by the company, and fully assented to by him. Either the company enters into a contract with him, and takes upon itself the burden of some sort of legal obligation to send the message, or it does not. It would be manifestly against reason, and what all must assume to be the intention of the parties, to say that no contract whatever is made between them, and nobody, not even the officers or representatives of the company, asserts such a doctrine.
It would seem utterly absurd to assert it. Holding itself out as ready and willing and able to perform the service for whosoever comes and pays the consideration itself has fixed and declared to be sufficient, and actually receiving such consideration, it cannot be denied, we think, that a legal obligation arises and duty exists, on the part of the company, to transmit the message with reasonable care and diligence, according to the request of the sender. Such being the attitude of the company and the obligation which it assumes by accepting the payment, the question arising is, whether it can at the same time, and as part of the very act of creating the obligation, exact and receive from the other party to the contract a release from it. The regulations under consideration, if looked upon as reasonable and valid, completely nullify the contract by absolving the company from all obligations to perform it; and the party delivering the message gets nothing in return for the price of transmission paid by him. Is it possible for the company, or for any other party entering into a contract for a valuable consideration received, to promise and not to promise, or to create and not to create, an obligation or duty at one and the same moment, and by one and the same act? The inconsistency and impossibility of such things are obvious. But if there were no such difficulties, or if the occasion or circumstances were such that a valid release might be executed, and it be regarded in that light, still the objection exists that there is no consideration whatever to support it, and it must be held void on that ground. If it be urged that the sender receives his consideration in the reduced price of transmission, or because the company undertakes to send the mes. sage at one-half of the usual rates of transmitting day messages, that argument ends in proving that the company does not undertake to send the message at all, and that no contract or agreement on its part is made or entered into for that purpose. If the company promises or binds itself at all for the rate or consideration named, and which it is willing to and does accept, then the smallness of such consideration cannot operate to relieve from the promise, or to destroy the obligation thus created. Regarding the regulations in this light, therefore, as well as in that of correct public policy, it is seen that effect cannot be given to them as a means of protection or escape, on the part of the company, from all liability for the non-performance of its contract. The regulations cannot serve to shield the company from the consequences resulting from the gross negligence or fraud of its officers or agents, or from their entire failure to perform the service, no good excuse for such failure being offered or shown.
The omission of the operator here to send forward the message during the night was the result of gross negligence and inattention to duty on his part. It was a total failure to perform the contract, in excuse of which no facts whatever were shown or offered by the company upon which the burden of making such proof rested.
But, as the despatch was written in cipher, the court held that the plaintiff had concealed its importance, and directed judgment for the amount paid for the transmission of the message.
It may be interesting in this connection to compare this decision with those in the two other cases cited above. Tyler v. W. U. T. Co. was an action to recover damages for alleged carelessness on the part of the defendant, by which a message, “ Sell 100 shares" of stock was delivered “Sell 1000 shares." The message was written on the ordinary blank of the company. The Supreme Court of Illinois say, Feb. 7, 1873, that the blank is not a contract binding in law; that there is no consideration for it; and that a mistake in the transmission of a despatch is prima facie evidence of negligence, and the burden is on the company to show the contrary. Last April the Supreme Court of Massachusetts held, in Redpath's case, that no action lay against the company for damages caused by their sending by mistake a message written on one of their aforesaid blanks to Oswego, instead of Owego.
THE LATE CHIEF JUSTICE Bovill. – On the first day of November, in the fifty-ninth year of his age, died the Right Hon. Sir William Bovill, Lord Chief Justice of the Court of Common Pleas.
Called to the bar in 1841, at the age of twenty-seven, he quickly gained a distinguished reputation, particularly in patent causes, and a large and lucrative practice. He early became the leader of the home circuit, where his popularity equalled his success. In 1855 he obtained the honor of the silk gown; in 1857 he entered Parliament; in 1866 he was Solicitor-General in the administration of the late Earl of Derby; and in November of that year he was appointed to the office which he held at his death. His career on the bench was not marked with the same success as at the bar. His inferiority to some of the present justices of his court in learning and judicial experience was universally recognized, and doubtless contributed to imbitter his formerly courteous manners, and thus, in a measure, to destroy for the judge the general favor he had won for the lawyer.
On the coming in of the Common Pleas on the third of November, Mr. Justice Keating and the Solicitor-General eulogized the deceased; the former adding that the judges would not adjourn the court, as they were persuaded that the postponement of public business would be contrary to the wishes and feelings of the late Chief Justice.
MR. GLADSTONE's New APPOINTMENTS. — The vacancy created by the death of Chief Justice Bovill has been filled by the appointment of the former Attorney-General, Sir John Coleridge. His place is filled by the promotion of the Solicitor General, Mr. Henry James, who, in turn, is succeeded by Mr. William George Vernon Harcourt, Q. C., well known in this country as “ Historicus.” On the recommendation of the Lord Chancellor, Mr. Charles Hall, the head of the junior equity bar, has been made Vice-Chancellor in the place of the late Sir John Wickens.
Mr. Gladstone during the five years of his last ministry has had the oppor. tunity of filling a large number of judicial offices. We recall the appointment of Giffard, James, and Mellish to be Lords Justices of Appeal; of Sir George Jessel to be Master of the Rolls; of James, Bacon, Wickens, and Hall, Vice-Chancellors; of Sir James Bacon, Chief Judge in Bankruptcy; of Quain and Archibald, Judges of the Queen's Bench; of Grove, Denman, and Honyman, Judges of the Common Pleas; of Pollock, Baron of the Exchequer; of Mr. Justice Hannen to be Judge of the Courts of Probate and Divorce, in place of Lord Penzance; and of Mr. Justice Montague Smith and Sir Robert Collier to be salaried Judges of the Privy Council, the latter having been first made a Judge of the Common Pleas in order to qualify him for his place in the Privy Council. All these appointments have been made since Mr. Gladstone's return to office in December, 1868.
The Hon. SAMUEL Nelson was born in Hebron, Washington County, New York, in 1792, and died at his home in Cooperstown, in his native state, on the 13th of December, 1873. It is hardly more than a year since, with mind unclouded and faculties undimmed, but feeling that his time of usefulness was drawing to a close, he resigned his position on the Supreme Bench, and withdrew from public life. The eulogies then delivered are fresh in the minds of all. At the age of thirty he was appointed a circuit judge of the state of New York; a few years after he was made a justice, and subsequently chief-justice of its Supreme Court. It was while holding this last office that President Polk, in 1814, placed him upon the bench of the Supreme Court of the United States, where he sat for twenty-eight years. His continuous judicial service extended over half a century, — from 1822 to 1872,- fifty eventful years for this country. His last distinguished service was performed as a member of the Joint High Commission which made the Treaty of Washington. His reputation as a common-law judge was high before his appointment to the Supreme Bench; there his learning and authority in matters of admiralty became universally recognized and acknowledged. He died suddenly, without a struggle, in the midst of his family, in his eighty-second year, leaving behind him the name of a pure, careful, learned, and able judge.
LITTLE Rock, ARK., Oct. 7, 1873. TO THE EDITORS OF THE AMERICAN Law Review:
Gentlemen, - I see on the 160th page of the Review for October, 1873, under the heading “ Arkansas,” the following:
“The Hon. D. Kings, first Chief Justice of Arkansas, and for twelve years United States Judge of the Eastern District of Arkansas, died on Wednesday, the 3d of September, aged seventy-five years."
This is wholly a mistake; no such man as Kings was ever Chief Justice of Arkansas.
The person referred to, I presume, is Judge Daniel Ringo. Judge Ringo died here on the day and at about the age stated. He was our first Chief Justice, and was Judge of the United States Court for the Eastern as well as the Western District of Arkansas from 1850 to the breaking out of the war. He was one among the eminent men of the South, and for sound judgment and integrity had no superior any. where. It would be agreeable to the bar here, as well as to the good citizens of Arkansas generally, who mourn his death as a great loss, if you could make a suitable correction of this error in your next number.
Very respectfully, &c.
THE LAW OF HOMICIDE.
EDITORS OF THE LAW REVIEW:
Gentlemen, — One who has reached, by independent investigation, conclusions differing in some respects from those already expressed upon a quæstio vexata, may possibly be able to throw some light upon the subject, even if his conclusions should not meet with general acceptance. It is with the hope of doing so that I venture to add a word on the “presumption of malice from the act of killing," a subject which was interestingly discussed in the last number of the Review, under the title “The Law of Homicide.”
The main conclusions of the article referred to appear on pages 80 and 81, and concisely stated are these :
1. The presumption of malice from the fact of killing has been established in the common law from the earliest period.
2. This presumption is a rebuttable presumption of law.
With the first and fourth of these propositions I most cordially agree. From the second and third I am compelled to dissent. In other words, the presumption in question is, if I am right, not a rebuttable presumption of law, but a presumption of fact; and the burden of proof does not shift in this case, nor, indeed, in any case, civil or criminal, governed by the principles of procedure at common law.
There would seem to be a simple but conclusive test for determining whether a given presumption is one of law or of fact. If the party in whose favor the presumption operates is obliged to allege in his pleading the fact which the presumption supports, the presumption is one of fact. If, on the other hand, the party against whom the presumption operates is obliged to allege in his pleading the opposite of the fact which the presumption supports, the presumption is one of law.
The burden of proof of course in each case rests on the party making the allegation. In other words, a presumption of fact is merely one species of evidence, and, like all evidence, requires an allegation which it may support, while at the same time it cannot relieve one from the necessity of that allegation. A presumption of fact simply necessitates evidence in rebuttal of the presumption. A presumption of law, on the other hand, is not, strictly speaking, evidence at all; it supports no allegation, and demands, not evidence in rebuttal of the presumption, but proof of the opposite of the fact presumed. It will be seen that the word “rebuttable,” as applied to a presumption of law, is not strictly accurate, or at least is not used in the same sense as when applied to a presumption of fact. In the latter case, we mean that the presumption itself may be rebutted; in the former, that evidence in support of the opposite of the facts presumed may be rebutted.
The test here proposed was suggested, and its correctness, it is submitted, is confirmed, by the forms of pleading at common law. There is, for instance, an established presumption of fact, that things once proved to exist in a particular state continue to exist in that state. But a plaintiff wishing to show that a certain thing exists now must make an allegation to that effect in his pleading. He may then prove that the thing formerly existed; and then the general presumption referred to will, in the absence of rebutting evidence, prove his allegation. See Best, Evidence, 518, and cases cited.
On the other hand, there is a well-recognized presumption of law against fraud. But a plaintiff, who would take advantage of this presumption, is not obliged to allege or prove the absence of fraud on his part. On the contrary, the defendant is required to allege and prove the existence of such fraud. So with the presumption against insanity, infancy, illegality, that an executor has assets, and other presumptions of law. In no one of these is the plaintiff obliged to aver and prove the fact presumed. In all of them the defendant is obliged to aver and prove the opposite of the fact presumed.
Applying the test suggested to the presumption under discussion, we must conclude that it is a presumption of fact. For no authority need be cited to show the necessity of the allegation of malice or its equivalent in an indictment for murder. The necessity of the allegation being admitted, the necessity of its proof must also be conceded.
It is said, however, that this presumption of malice, when once created, shifts the burden of proof upon the prisoner. The burden of proving what, one may ask. Is it the burden of proving malice? Assuredly not. That is what the prisoner especially desires should not be proved. Is it the burden of proving the absence of malice? That is equally impossible, or the jury, if in doubt, would be constrained to convict the prisoner.
As, in the case supposed, nothing but the existence or absence of malice is in issue, and consequently nothing else is to be proved, it would seem to follow that the burden of proof cannnot shift. Even where the defendant pleads by way of confession and avoidance, the burden of proof, strictly speaking, does not shift. In such cases, before issue reached, the burden of proof is not determined ; after issue reached, it does not change. But the use of the phrase, “the burden of proof shifts,” in reference to cases, when, as in criminal procedure, the issue is reached by a denial of the allegations of the indictment, betrays either looseness of thought or inaccuracy of expression, and will certainly be avoided by those who discriminate between evidence and proof.