NEW BOOKS AND NEW EDITIONS. THOMPSON ON LAW OF ELECTRICITY. The Law of Electricity. A treatise on the rules of law relating to telegraphs, telephones, electric lights, electric railways and other electric appliances. By Seymour D. Thompson. St. Louis: Central Law Journal Co. Whatever Judge Thompson writes or says it is important to read or hear. In the compass of 550 pages he here gives us all the essentials of an entirely new department of law, on which "the wisdom of our ancestors" is silent, and of which Mr. Coke was utterly ignorant. If any one had told Coke or Hale that he could talk with people a thousand miles away by the living voice he would have been dealt with for witchcraft. Here we have the whole law in every phase, accompanied by intelligent opinions of the commentator. The book is well printed, except the title-page, which is evidently contrived to be read from across the street. ABBOTT'S TRIAL BRIEF ON THE PLEADINGS. Brief for the argument of questions arising upon the pleadings on the trial of issues of law or fact in civil actions at law, in equity or under the new procedure. By Austin Abbott. New York: Diossy Law Book Co. is just at hand, and which is published in the interests of the new law school which shot off from the Columbia Law School on the retirement of Prof. Dwight, and of which Prof. Chase, late of that school, is the dean. The portrait of Prof. Dwight is prefixed to this number. The number of scholars in the new school is stated to be three hundred and forty-five. The matter in this number is interesting and an excellent body of contributors is announced. The highly-interesting decision of the Supreme Judicial Court of Massachusetts concerning small boys and gilded railroad turn-tables is perhaps deserving of another word. We cannot, we regret to say, agree with the learned judges in their opinion of the case. We incline rather toward the ingenious view of the clever attorney for the plaintiff. If an appeal is possible we hope that one will be taken. It will be remembered that the small boy went to play on the railroad turn-table, and while there disporting himself was injured. The parents of the boy promptly sued the company which owned the turn-table. The defense made by the company was of course that the small boy had no right to be on the turn-table, and if he got hurt there it was not the company's fault. The company did not erect the turn-table for the accommodation of the neighboring small boys, and if the small boys flocked to it and were deceived thereby, and had their young limbs broken in the same, the company felt in no way responsible. At first sight this looks reasonable, but we believe that any fair-minded man who knows small boys will see its weakness when he examines the ar gument put forward by the attorney for the plaintiff. In the first place he points out that the turn-table was not an ordinary inconspicuous affair which a small This portly volume of some 900 pages in another of the learned author's extremely useful and practical assistants for the busy lawyer. These works are useful in any State, for the law and decisions of all the States are carefully noted. The treatment is in every way admirable. The series of four is indispensable to the safe conduct of causes, civil and criminal. There is no other living lawyer who devotes such shining pow-boy might pass by on the other side and perhaps not ers to the benefit of his profession in such unambitious and practical ways. BIGELOW ON TORTS. This is the fourth edition of Prof. Bigelow's useful little treatise, which forms a number of the "Students' Series," published by Little, Brown & Co., of Boston. Under Enticement and Seduction" the author treats of the rights of the husband on account of the enticement or seduction of his wife, but does not treat of the converse right, which has recently given rise to conflicting adjudications in this country. NOTES. ISHOP HURST of the Methodist Episcopal Church Blasks that those persons who intend to confer gits upon the new American University at Washington grant them by deed of gift rather than by will, and gives as his reason that “the risk is too great and the issues too serious, in these days, to intrust too coufidingly one's noble benevolent plans to the doubtful mercies of discontented heirs and industrious attorneys." A correspondent sends us the following excerpt: "The widow was entitled to one cow, and a bed, bedstead and bedding for the same. 2 Barb. 79." This is certainly the greatest stretch of humanity to animals that has ever come to our notice. But the inquiry naturally arises, why this distinction between widows' cows and the cows of married women, and of men, married and unmarried? Will it not encourage cows to reduce the population of the State of widows by judicious hooking, if they shall become advised of it? The Counsellor of the New York Law School is the title of a monthly magazine, the first number of which notice at all, but was, as it were, a raised and glorified turn-table, with two long, upright standards which could be seen by every small boy in town. It was also constantly kept unlocked, and could be easily turned around, affording small-boy sport of the very highest order. Indeed it would not surprise him if the able judges themselves could find enjoyment in riding around on that turn-table. Any turn-table, even a flat and rusty one, was an attractive object to a small boy, so how much more alluring was this bright red turn-table with the high standards constantly beckoning to every small boy that passed. The turn-table was simply a temptation too strong for small-boy flesh and blood to resist. As well unhead a molasses barrel in July and expect no flies to gather round it. Here, continued counsel, stood the siren turn-table, waving its bewitching arms and ever singing this low, Loreleilike song: "Come unto me, small boy; leave thy top and thy kite and thy bean shooter with which thou pluggest out the eye of the first citizen, and come unto me and ride about upon me as thou wouldst ride upon a merry-go-round. Come, oh, small boy, come!" Naturally, added learned counsel, small boy went. He was there on the invitation, which no saue person could expect him to resist, of the company, as its guest, and it was the company's duty to protect him and see that he did not get his fingers caught in the mechanism. But this the company did not do, and counsel asked damages in the sum of $5,000. Nevertheless, as we have said, the Supreme Judicial Court ruled against the plaintiff and virtually said that a railroad company in Massachusetts has the right to erect as dangerous a small-boy trap as it pleases, bait it as seductively as it pleases and catch as many small boys in it as it pleases. We believe that anybody who knows the nature of small boys will say that the court is wrong. It is, we suppose, a physical necessity that the Supreme Judicial Court should have sometime been small boys, but that able body must have entirely forgotten the fact, or have been very queer small boys.-N. Y. Tribune. The Albany Law Journal. THE ALBANY, NOVEMBER 14, 1891. CURRENT TOPICS. HE bar of this city and department will regret the approaching termination of the judicial career of Judge Learned, who has so long adorned the bench by elegant scholarship and deep legal learning, by lofty independence and probity, and by untiring industry. His successor, Mr. Herrick, is an able man and a brilliant lawyer, with great executive capacity, who has yet to demonstrate the possession of the judicial faculty, and who has been even more widely known as a politician and party manager than as a lawyer. During the canvass we refrained from commenting on his retention of his place on the democratic State committee and his active participancy in the general campaign in which he was a candidate for the bench, because we feared such comments might be misconstrued and attributed to political feeling. We regretted Mr. Herrick's action in this respect, and if he had been a republican we should not have refrained from speaking of it adversely. We hope never to see a repetition of such a painful mingling of political partisanship with judicial aspiration. The bench should be kept free from the slightest suspicion of politics, and of personal indebtedness to partisan management. The theory of election of judges by the popular vote would sustain a grievous injury if such a candidacy as Mr. Herrick's were often to be repeated. But he is an honorable man, he has the mental ability and the professional qualifications to enable him to adorn the bench, and we hope and believe that he will now lay aside politics as honestly and as completely as many other earnest partisans have done in similar circumstances - like chronological account of its judges, and a statement of its principal adjudications, which is not only very instructive and sound in opinions and deductions, but extremely readable in style. Although the book is of formidable, not to say forbidding dimensions, we have found the time and developed the muscle necessary to its perusal, and have been amply repaid. The literary portion of the work is of serious and permanent value, and covers five hundred and seventy-seven pages. Then follows an acccount of the origin of the celebration, with the addresses made on that occasion, extending over some one hundred and fifty pages. These addreses are also worthy of perpetuation in this permanent form. But the unique and perhaps the most interesting part of the work is the portraiture of the judges of the court. Here are given portraits of every judge of the court from its foundation down to the present moment, fifty-three in number, etched and printed in the best syle of the art, many of them derived from extremely rare sources, and some of those already very well-known by engravings from celebrated paintings are here presented from novel originals of great interest. The portrait of Marshall, for example, from a painting in the possession of Mr. Justice Gray, gives an unhackneyed impression of the great chief. The portraits are accompanied by autographs, and of themselves form a gallery nowhere else obtainable, and which in time must prove of almost priceless value. The only criticism which can possibly be urged against this publication is upon its form. It is unhandy, and it seems to us that it might much better have been put in two octavo volumes, the plates not being of a prohibitory size. It is published by the John G. Huber Company, Philadelphia. The Columbia Law Times for October reaches us with a group of excellent portraits of the new faculty, consisting of Seth Low, president, Mr. Church, Allen, Grover, Folger, the Peckhams, and Keener, dean, and Professsors Burdick, Cumming and others who might be mentioned. In this way alone can the popular election of judges be kept respectable. The people of this city will have no fault to find with the election of their fellow-citizen, Mr. Rosendale, to the attorney-generalship. He is a good man, a good citizen, and a good lawyer A quarto volume, about as large as a family bible, and very sumptuously printed, bears the title: "The Supreme Court of the United States; its History, by Hampton L. Carson of the Philadelphia Bar, and its Centennial Celebration, February 4, 1890. Prepared under the direction of the Judiciary Centennial Committee." It seems that the author had made some progress in this history before the Judiciary Celebration in New York took place, and we agree with him that it was "a fortunate accident" that this work came to the knowledge of the committee, and that it was thus joined to a report of that celebration. Mr. Carson has given a history of the origin and foundation of the court, a VOL. 44 No. 20. Kirchwey. The attendance under the new management is some three hundred, a falling off of more than one-half, we believe. The school however has strong opposition in the new schools established by Prof. Chase and by Mr. Thomas, author of the treatise on Mortgages. The old school probably keeps the wealthy leisurely class, while the new attract the poor busy young men who can only attend at night and down-town. The Times says: "The case system,' so called, seems generally adopted as the method of studying law in Columbia. Much can be said in favor of both the former textbook plan and the one now employed, and we do not propose to enter into any controversy or constitute ourselves arbiters of this much mooted question. Suf fice it to say that we regard the difference between the systems, sentimentally denominated by their respective disciples as the Dwight Method' and the 'Langdell Method,' more a difference in name than in practice; more a difference in the personality of these two great teachers than a variance in their theories of law. We believe the education of the law student depends infinitely more upon himself and his instructor than upon the method' he affects to pursue, and that either plan, properly followed under competent direc-ing: "Nor would it be as easy for a most magnanition, will yield practically the same results. The method pursued at Columbia seems to us to be one which seeks its learning from the sources of law, dealing with the authorities themselves, and not relying upon the second-band and often second-rate theories of text-book writers; it is the method which believes it is better to read a few leading cases thoroughly than to confuse the mind with the multitude of heterogeneous cases and ideas set forth in the universal textbook." We believe the true method of teaching law to be that which relies neither on cases nor textwriters exclusively, but on original statements by the teachers, derived from a careful examination and comparison of cases assisted by the labors of standard text-writers, and by resort to a few leading cases as illustrations. If compelled to choose between cases and text-books, we should prefer the latter in some cases, as for example in the case of Bishop on Marriage, a work of more authority than most courts. It is certainly well to read " a few leading cases thoroughly," but the temptation is to cite and discuss and try to reconcile too many cases in the class-room. Judging from the list of leading cases cited in the school, and published in this number of the Times however, we should infer that the " case" theory is not over-done at Columbia. mous mouse of a Calibanic poeticule to write a ballad, a roundel, or a virelai, after the noble fashion of Chaucer, as to gabble at any length like a thing most brutish in the blank and blatant jargon of epic or idyllic stultiloquence." Senator Vilas sheds a surprising light on the Wisconsin school question. On Mr. Andrews' paper we have already commented, and may comment again. Colonel Dodge demonstrates in a very unpleasant way the weakness of our navy and of our coast defenses. It is highly probable that our government is not prepared for a war, even with such a puny power as Chili. He makes the surprising statement that "We have lost more men in active war since 1776 than any nation of Europe." He certainly ought to know, but we should suppose that the losses of France in the revolutionary, Napoleonic and Crimean wars, in the Italian campaigns, and in the Prussian war, far exceeded those of this country. What warrant has Mr. Labouchere for asserting in his paper that George Third was of disreputable private life? Is this not a misprint for George Fourth? As we understand, George Third was a model of private and domestic virtue. Mr. Labouchere asserts that the good Queen's private fortune is grossly over-estimated in popular judgment. We have seldom found a number of a magazine Mr. Curtis' article is of the gravest interest. He so interesting as the October Forum. The contents : are as follows: An English Estimate of Lowell, Archdeacon F. W. Farrar; One Remedy For Municipal Misgovernment, President C. W. Eliot; Social Verse, Algernon Charles Swinburne; A Plan for a Permanent Bank System, The Hon. M. D. Harter; Compulsory and Religious Education:- The "Bennett Law" in Wisconsin, Senator W. F. Vilas, The School Controversy in Illinois, E. M. Winston; Real Meaning of the Free Coinage Agitation, Edward Atkinson; Increase of Crime by "Reformatory" Prisons, W. P. Andrews, Clerk of the Criminal Court, Salem, Mass.; Agricultural Depression and Waste of Time, President D. S. Jordan, of the Leland Stanford, Jr., University, California; Common Sense and our Military Duty: -The needs of our Army and Navy, Col. Theodore A. Dodge, A. Naval Militia and Reserve, Lieut.-Commander J. W. Miller, of the New York Naval Reserve Artillery; English Royalty, its Cost and its Uses, Henry Labouchere; The Increase of Gambling and its Forms, W. B. Curtis. Archdeacon Farrar, while pointing out Lowell's obvious limitations as a poet, ventures the opinion that he will be remembered as a poet rather than as a critic. Most Americans would probably disagree with this, for his verse which is likely to live, such as the "Biglow Papers" and "Fable for Critics," is not poetry but criticism and satire. His great ode is the exception which tests the rule. In "Social Verse," Mr. Swinburne, although he has written much beautiful verse, proves that he cannot write prose. The article is extravagant, turgid and grotesque in style, and shows a violence inconsistent with just criticism. What excuse is there for such writing as the follow makes the astounding statement that "On Monday, August 17, 1891, the sales of wheat on the floor of the New York Produce Exchange exceeded 21,000,000 bushels, while the total visible supply of wheat in the United States on the same day was officially reported as 19,556,682 bushels almost a million and a half bushels less than the amount sold in one room in New York city between 9 A. M. and 3 P. M. of that day." In pointing out that it is bad practice, even in a civil cause, for counsel to express to the jury his own be lief as to facts in issue, and that no language is severe enough to condemn such a practice when resorted to by a prosecuting attorney, the Washington Law Reporter gives "the most atrocious instance on record of an expression of opinion by counsel, and one, be it said to the honor of the profession, unparalleled." The of fender, who, by the way, was an ex-judge, had undertaken the defense of a man charged with murder. Here is his address to the jury: "I have seen that the prisoner had a fair trial, and that all his rights were preserved. Gentlemen of the jury, I believe him guilty, and he ought to be hanged." This is said to bave recently occurred in the Criminal Court of Detroit. "For our part," says the Washington Law Reporter, we think it such a betrayal of a professional trust as should have demanded of the court the instant striking of the traitor's name from its roll of attor neys." It is difficult to believe that the conclusion of the speech for the defense can have been correctly reported. We are inclined to fancy the reporter had a grudge against that ex-judge.—Indian Jurist. We can give our contemporaries a remarkable and well-authenticated instance of this unusual and excessive candor in an attorney defending an indicted person. The late Gardner Stow, of Troy, N. Y., was a lawyer of profound learning but of singularly small knowledge of human nature or tact in the management of a cause. He was attorneygeneral of this State by appointment to fill a vacancy for a few weeks. It fell to him — by assignment, if we recollect right—to defend a man indicted for murder. The evidence was strong against him, but Stow made a long and eloquent speech, the conclusion of which was substantially as follows: "Gentlemen, I pray that the omniscient being who rules the destinies of men may so guide your minds that you may be able to reconcile the evidence with my client's innocence, for I confess to you, gentlemen, that I cannot." It would have been a sad reflection against the counsel's intelligence if the jury had acquitted his client, and we believe they refrained from subjecting him to that mortification. In that case, the eminent counsel, at about the hour of noon, paused in his argument, and turning to the court, suggested that it was the hour at which the counsel was accustomed to lunch; that he was considerably exhausted by his efforts; but not wishing to ask for an adjournment he would pray the court to order the sheriff to bring him in some light refreshment. The court assented; the sheriff brought in crackers and cheese, and Mr. Stow calmly consumed them amid dead silence and under the wondering eyes of the court, bar, jury and a large audience, and then resumed. This was certainly a novel spectacle, but it was better than to see "prisoners hang that jurymen may dine." NOTES OF CASES. sometimes interrupt the current of responsible connection between negligent acts and injuries, but as a rule, these agencies, in order to accomplish such result, must entirely supersede the original culpable act, and be in themselves responsible for the injury, and must be of such a character that they could not have been foreseen or anticipated by the original wrong-doer. If it required both agencies to produce the result, or if both contributed thereto as concurrent forces, the presence and assistance of one will not exculpate the other, because it would still be an efficient cause of the injury. *** It is next insisted that the injury was such an extraordinary and unlooked for occurrence that it could not have been foreseen and is, consequently, too remote to afford the basis of a legal liability. Every rational being is responsible for his careless acts, and the consequences which follow according to the practical application of the laws of cause and effect, whether he was able to anticipate the particular result or not. In Shear. man and Redfield's valuable treatise on the Law of Negligence (section 29), the law is laid down as follows: The practical solution of this question appears to us to be that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would have thought at the time of the negligent act reasonably possible to follow, if they had been suggested to his mind.' In the case of Railway Co. v. Wood, 113 Ind. 544, the court said: There is a plain difference between wrongful act is done, the wrong-doer must answer a act its consequences; for when a for all proximate consequences, although he may not have foreseen or anticipated the particular form or character of the resulting injury.' The Supreme Court of Massachusetts, in Hill v. Winsor, 118 Mass. 251, said: The accident must be caused by the negligent act of the defendants, but it is not necessary that the consequences of the negligent act of the defendants should be foreseen by the defendants. It is not necessary that either the plaintiff or defendants should be able to foresee the consequences of the negligence of the defendants in order to make the defendants liable. It may be a negligent act of mine in leaving something in the highway; it may cause a man to fall and break his leg or arm, and I may not be able to foresee one or the other.' N White Sewing Machine Co. v. Richter, Appellate Court of Indiana, September 15, 1891, plaintiff brought suit against a sewing-machine company for personal injuries inflicted by the carelessness of an agent in attempting to remove from her house a machine, which it had agreed to take in part payment for another. Plaintiff showed the agent when he came, that the machine was unusually heavy, and told him that he could not remove it alone, without taking off the top, embracing the machinery; but the agent insisted that he could if he could get it on his shoulders. She told him also that it had always taken two men to move it theretofore, and called his attention to the fact that she had taken off the belt, and that, if he undertook to shoulder the machine without replacing it, the top would be likely to fall. No attention was paid to this however, and the consequence was, that when he raised the machine, the top did fall, striking the wall, and rebounding to the floor, where it broke into pieces. A fragment struck the plaintiff as it broke, and entirely destroyed one of her eyes. Held, that defendant was liable. The court said: "6 Appellant's counsel insist that the fact that the top of the machine first struck the wall, and then fell to the floor, destroyed the chain of causation, in the view of the law, between the act and the injury, on the theory that the wall was an intervening agency. We know of no instance where the law has been applied upon that theory under such circumstances, and we have been referred to none. Intervening agencies In re Thompson, Court of Appeals of New York, Second Division, October 6, 1891, it was held that in proceedings by a city to condemn a water-right, which is not being utilized, evidence of the amount paid by the city a year and a half previously for a similar neighboring water-right, which was being utilized, is incompetent. The court said: question has been presented to the courts of last resort in several of the States, but not with the same result. In Massachusetts, New Hampshire, Illinois, "This Iowa and Wisconsin it is held that actual sales of other similar land in the vicinity, made near the time at which the value of the land taken is to be determined, are admissible as evidence for the purpose of arriving at the amount of compensation. Gardner v. Brookline, 127 Mass. 358; Packing, etc., Co. v. City of Chicago, 111 Ill. 651; Town of Cherokee v. Land Co., 52 Iowa, 279; Railroad Co. v. Greely, 23 N. H. 242; Washburn v. Railroad Co., 59 Wis. 364. While in some of the other jurisdictions, notably Pennsylvania, New Jersey, Georgia and California, it is held that sales of similar property are not admissible for the purpose of proving the value of property about to be taken. Railroad Co. v. Hiester, 40 Penn. St. 53; Railroad, etc., Co. v. Bunnell, 81 id. 414; Railroad Co. v. Ziemer, 124 id. 560; Railroad Co. v. Benson, 36 N. J. Law, 557; Railroad Co. v. Pearson, 35 Cal. 247-262; Railroad Co. v. Keith, 53 Ga. 178. The reasons assigned for the conclusion reached in the cases last cited are, in the main, that the test in legal proceedings is, what is the present market value of the property which is the subject of controversy? It may be shown by the testimony of competent witnesses, and on cross-examination, for the purpose of testing their knowledge respecting the market value of land in that vicinity, they may be asked to name such sales of property and the prices paid therefor, as have come to their attention. But a party may not establish the value of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit of cross-examination to show that one or both were mistaken. If some evidence of value, then prima facie a case may be made out, so far as the question of damages is concerned, by proof of a single sale, and thus the agreement of the parties which may have been the result of necessity or caprice would be evidence of the market value of land similarly situated, and become a standard by which to measure the value of land in controversy. This would lead to an attempt by the opposing party to show First, the dissimilarity of the two parcels of land; and, second, the circumstances surrounding the parties which induced the conveyance sale by one in danger of insolvency, in order to realize money to support his business, or a sale in any other emergency which forbids a grantor to wait a reasonable time for the public to be informed of the fact that his property is in the market; or, on the other hand, that the price paid was excessive, and occasioned by the fact that the grantee was not a resident of the locality, nor acquainted with real values, and was thus readily induced to pay a sum far exceeding the market value. Thus each transaction in real estate claimed to be similarly situated might present two side issues, which could be made the subject of as vigorous contention as the main issue, and, if the transactions were numerous, it would result in unduly prolonging the trial, and unnecessarily confusing the issues, with the added disadvantage of rendering preparation for trial difficult. Our attention has not been called to a case in - such as a this court where the question has been passed upon in the manner here presented, but there are a number of decisions indicating the tendency of the court to be against proving value by evidence of the selling price of similar property. In Huntington v. Attrill, 118 N. Y. 365, the defendants attempted to prove the value of certain seaside property by showing the value of other property of the same general character situated in different places, and Judge Bradley, speaking for the court, said: 'It may be that such evidence would have furnished some guide for estimate of the value of the property, but might not. Such evidence would present collateral issues, which might, and very likely would, involve a variety of considerations having relation to similarity or difference, and to advantages and disadvantages of the different properties in numerous respects, as compared with that in question. It is quite well settled that evidence of that character is not admissible upon the question of the value of property in controversy.' The question was not necessarily before the court in Mayor, etc., v. McCarthy, 102 N. Y. 630-638; but Chief Justice Ruger, referring to the question whether the price paid on sales of real estate between individuals is admissible as evidence of value, said: 'We think it quite clear however that such price is not, in any view, competent evidence of value.' In Blanchard v. Steamboat Co., 59 N. Y. 292, the defendant attempted to show the value of a sunken steamboat by proving the value of other steamboats with which she could be compared, and it was held that the evidence was not competent. In Langdon v. City of New York (Sup. Ct.), 13 N. Y. Supp. 864, the objection was that other evidence should be produced to establish the fact sought to be proven (page 866), so that the question of the relevancy of the evidence was not before the court. We are of the opinion that the value of property which depends upon the presence or absence of inherent qualities not necessarily present or absent in other and similar property cannot be proved by showing the price paid for such other and similar property. The value of property having a recognized market value, such as No. 1 wheat and corn, may, of course, be proven by showing the market prices; but the value of property which is dependent upon locality, adaptability for a particular use, as well as the use made of property immediately adjoining, may not be shown by evidence of the price paid for similar property. Even under the Massachusetts rule, a reversal would not be justified because of the extent of the discretion vested in the judge or officer presiding at the trial to determine whether such evidence is admissible, depending, of course, on various elements, such as the nearness or remoteness of the time of sale; whether the premises are far separated; the condition of the property about the parcel sold, and the use made of it, which may have operated to enhance or diminish its selling value; the similarity of the property, not only as to description, but as to its availability for use. Chandler v.Jamaica Pond Aqueduct Corp., 122 Mass. 305; Gardner v. Brookline, 127 id, 358-363, and cases cited." |