"The truth is, a good deal of nonsense is written and printed about members of the judiciary accepting passes on railroads. If the tendency of legislation had been to enlarge the powers of railroad corporations so that the public would be made to suffer from their ex actions, then it would be easy to trace the injurious influence of the pass system. But the truth is the trend has been in the opposite direction. If railroads issued passes to bribe the judiciary-and that is a preposterous assumption-then the railroad officers of this country in this respect exhibited singular stupidity, for they have failed to accomplish their purpose. The custom of granting passes is an outgrowth of the habit of conferring certain privileges on persons in exalted station. Men who reach distinction are showered with favors which less fortunate mortals could not purchase. These are given, not in the expectation of a return in kind, or that value equivalent will be made, but because it is a trait of human nature to do this sort of thing. To contend that a judicial officer would prostitute the ends of justice because he is permitted to ride free at the rate of a few cents a mile, is too ridiculous for the consideration of sensible men. In the days of stage coaches, when travelling was ex pensive, if men were obliged to go about as they do to-day, a pass might have swayed the judgment of a corruptible man. But travel now is an inexpensive matter, comparatively." This seems to us extremely illogical and inconclusive. What has the granting of passes to the judges to do with legislation? If the grant is a mere innocent favor, the Journal itself shows that it amounts to nothing as a mere financial favor. The Journal does not go deep enough. The question is not solely the effect on the free-riding judge, but the effect on the public mind. The contention that the railroads grant passes to the judges simply on account of their "exalted station" gives altogether too much credit to these selfish corporations. Everybody except this writer knows perfectly well that a railroad never gives a pass without the expectation of a quid pro quo. When a railroad gives a pass to an editor, is it on account of his "exalted station?" We should say not. In the case of the judges it is the expectation or hope of favor in the numerous suits waged against the railroads that constitutes the inducement. This would in itself be a sufficient ground for prohibiting the practice. The Republican is right in saying that the pass is a bribe. But worse than this, it is regarded by the community as a bribe. Does any suitor in a case against a railroad have the confidence which he ought to feel in a judge, when he knows that the judge who is hearing his case rides free on that road VOL. 44 No. 26. to and from that court? How would he feel toward a judge who should ride to and from the court with the opposite party and his horse and wagon? He would be perfectly justified in feeling that the judge was biased. The judge may not be conscious of a bias, or may be completely free from it, but neither the railroad nor the other suitor nor the public will credit it. This is sufficient. Our judges ought to be respectable in the opinion of the parties and the community, and they are not wholly so when they sit to try a railroad case with a pass upon that road in their pocket. Still another reason against the practice is practically admitted by the Journal-travel is cheap, and there is no reason for the pass. Add to this not only that judicial salaries are very liberal, but that in this State a very liberal allowance is made to the judges for expenses, and all plea for the necessity or reason of the practice disappears. The mischief is in the apparent nature of the thing — it is a bribe or so intended; just as much a bribe as if an individual suitor, having a case to be tried before a particular judge, should buy and give him a ticket over the railroad leading to the place of trial. Almost any judge would refuse or shrink from that on account of the indecency of the appearance and the manifest object of the giver. But how does this case differ from the wholesale gift of passes to judges by all the railroads in the State? The question may be summed up in the trite quotation about "Cæsar's wife;" she should be "clear even of suspicion." We doubt that any of our judges are influenced by passes, but we feel quite sure that some of them who are known to refuse such favors are applauded by the public for it, and have, even if they do not deserve, greater public confidence. The president's appointments of judges to the new Appellate Circuit Court so far are as follows: First circuit, William L. Putnam, of Maine; second circuit, Nathaniel Shipman, of Connecticut; third circuit, George M. Dallas, of Pennsylvania; fourth circuit, Nathan Goff, Jr., of West Virginia; sixth circuit, William H. Taft, of Ohio; seventh circuit, William A. Woods, of Indiana. The appointments of Judges Shipman and Woods are promotions. Solicitor-General Taft is widely known. Messrs. Putnam and Dallas are Democrats. The former served as a commissioner in the fisheries negotiations with Great Britain in the Cleveland administration, and helped defeat the Garcelon so-called "conspiracy" in his own State. It is not likely that Republican senators will object to him. Dallas is described by some as a "bitter" Democrat, and to him there may be objection made. So, it is rumored, the Democrats will object to Judge Woods on account of his quashing certain political indictments. The two judges are certainly experienced and able. The appointments seem commendable, and the president certainly has evinced impartiality in appointing two Democrats. It may be suggested that the president would have done better by promoting more judges, but we incline to the opinion Mr. "The case of Edward M. Field begins to look very black. Doubt as to his insanity is now widespread. His fall was calculated to produce an unsettlement of his nervous system, but that it unbalanced his intellect causes much doubt. His crime-any other word would be misleading-had wide ramifications." "A great deal of dissatisfaction is expressed over the superserviceable manner in which Justice Fursman of Troy is lending himself to the effort of Governor Hill to stave off the defeat which now awaits the arch conspirator." The prescience and omniscience of newspapers is strikingly illustrated by the extracts above given from a single issue of an Albany journal. As Loppy held no office at the time of his death, it must be presumed that the writer meant to say, "officially pronounced dead" rather than "pronounced officially dead." (It was not a case of an execution of a county clerk by our governor.) But as the physicians declared that in their opinion Loppy suffered no pain and death was instantaneous, why this infidel"?" It is of course part of the "kicking" of the newspaper reporter against the electrical execution law. Let him in to witness and give him free leave to describe the scene, and he would have nothing to say against the efficiency of the law. In truth, the more the victim should suffer, the more it would "sell the paper," which is the alpha and the omega of the reporter's creed. Then as to Mr. Field's insanity. The language is obscure, but we assume that the reporter intends to say that there is much doubt that Mr. Field's intellect is unbalanced. (These oracles need interpretation.) It would be much more decent to leave the question to the courts, without seeking to prejudge it, or confidently to pronounce that a "crime" which may not be. It may be true that "doubt as to his insanity is now widespread," but the converse is also true, and his insanity was certified in the way provided by law, and by excellent medical authority. As to Justice Fursman's action, the reporter naturally does not know that it is very much a matter of course to do what the justice did to grant an order to show cause, to insure a more deliberate examination. In this particular case there seems to be room for grave doubt whether the State board of canvassers may be stayed by any tribunal save the General Term of the third department. The case is probably not so clear as to justify a refusal of an order to show cause. Justice Fursman proved (or was admitted) to be right in his action respecting the Sullivan county assemblyman, and newspaper reporters should be chary of pronouncing upon matters of which they have no particular means of knowledge. We really wish we knew a quarter as much on legal questions as the average reporter thinks he knows. We are glad to learn, and doubtless many of our readers will be glad to know, exactly what the "Dwight method" of legal instruction is, of which we have heard so much of late. Prof. Chase, a disciple and authoritative exponent of that method, in forms us: "The Dwight method is a recitation system, accompanied by abundant oral exposition by the instructors aud by the reading of illustrative cases by the student. The recitation system is pursued at our American col leges and universities, with scarcely an exception, in teaching the various branches of learning that enter into a college curriculum, and it is difficult to comprehend why it should be less suited to legal instruction than to these various subjects. The danger of this method is of course that the mind of the student may simply, like a sponge, absorb the contents of a book and then have them squeezed out again without deriving much benefit from the process. But the 'Dwight method' effectually guards against this danger, for its aim is not simply that a student shall remember, but He studies that he shall understand and assimilate. the text-book carefully, that he may learn and comprehend what he can by his own efforts, and also be enabled to understand the oral exposition in the classroom, and gain from it the largest measure of benefit. He is called upon to recite, not that he may repeat parrot-like the words of the book, but that he may show and develop his capacity to state in his own lan guage the knowledge he has acquired. He is encour aged to ask questions in order that his own individual needs may be met. And the professor's constant en deavor is, by teaching the law as a system of princi ples, by unfolding the reasons upon which these priuciples depend, by simplifying abstruse statements of doctrine, by illustrations drawn from the reports and from practical life, to give vitality and interest to the whole course of instruction, and to adapt it to the student's comprehension." Prof. Chase believes with Lord Mansfield, that "the law does not consist of particular cases, but of general principles which are illustrated and explained by those cases." So far we agree with him. The only question is how best to beat those principles into boys' heads. The London Law Journal says: "The graphic and usually accurate Mr. Grant Allen has surely fallen into a slight error in his recent novel called 'Dumaresq's Daughter.' A will is being witnessed, and the witness who attests in the presence of the solicitors of the testator is able to see the name of the person who takes the whole benefit of the will, and, indeed, can hardly help seeing it. Surely the ordinary practice is to so fold a will up that the names of the legatees cannot be seen by the attesting witnesses." But the testator must be careful not to fold his signature out of sight. IN NOTES OF CASES. 'N State v. Geer, Supreme Court of Errors of Connecticut, October 26, 1891, it was held that section 2546 of the General Statutes of Con necticut, which provides that "no person shall at any time kill any woodcock, ruffled grouse, or quail for the purpose of conveying the same beyond the limits of the State," etc., is an exercise of the police power protecting the game birds of the State, and is not unconstitutional as a regulation of inter-State commerce. The court said: "The defendant insists that the statute, as construed by us, is unconstitutional, as restricting inter-State commerce, and refers to Robbins v. Taxing be killed and become private property. The difference between property of this sort and the ordinary private property of commerce is obvious. The apparent assumption of the Kansas court above referred to, that game which the law allows to be caught and killed thereby necessarily becomes the subject of traffic and commerce, meaning interState commerce, appears to us unsound. If the proposition were true, then the conclusion that a unconstitutional, might pass unquestioned. But we State law interfering with such commerce would be cannot acquiesce in a decision which would deny the power of the State to limit the right to kill, sell and hold its own game by any provision short of an it into that species of property the transportation absolute prohibition, without thereby transforming of which from the State it is unconstitutional to prohibit." Dist., 120 U. S. 469; The Daniel Ball v. U. S., 10 Wall. 566; Railroad Co. v. Husen, 95 U. S. 465; State v. Saunders, 19 Kans. 127; Territory v. Evans (Idaho), 23 Pac. Rep. 115; Territory v. Nelson, id. 116; State v. Mining Co. (Ind. Sup.), 22 N. E. Rep. In Stevenson v. Colgan, Supreme Court of Califor778; and Express Co. v. People (Ill. Sup.), 24 id. nia, November 16, 1891 it was held that where an 759. In State v. Saunders, 19 Kans. 127, the court act of the Legislature appropriating money to an says, it seems to be finally settled, among other individual for services rendered the State is valid things, that no State can pass a law which will di- on its face, courts cannot look into evidence aliunde rectly interfere with the free transportation from to determine whether it was a gift in violation of one State to another, or through a State, of any the Constitution of California, article 4, section thing which is or may be subject to inter-State com- 31, providing that the Legislature shall have no merce; that a law which prohibits the catching power to make any gift of any public money. The and killing of prairie chickens may be valid, al- court said: "While the courts have undoubted though it may indirectly prevent the transportation power to declare a statute invalid, when it appears of such chickens from the State to any other State; to them in the course of judicial action to be in conbut a law which allows prairie chickens to be caught flict with the Constitution, yet they can only do so and killed, and thereby to become the subject of when the question arises as a pure question of law, traffic and commerce, and at the same time directly unmixed with matters of fact, the existence of prohibits their transportation from the State, is un- which must be determined upon a trial, and as the constitutional and void. Without stopping to con- result of, it may be, conflicting evidence. When sider the construction which was given to the con- the right to enact a law depends upon the existence stitutional provision under discussion by the earlier of facts, it is the duty of the Legislature before commentators, except to suggest, in the language of passing the bill, and of the governor before approvJudge Story (2 Story Comm. 511), that a very ma- ing it, to become satisfied, in some appropriate way, terial object of its adoption was the relief of the that the facts exist; and no authority is conferred States, which export and import through other upon the courts to hear evidence and determine, as States, from the levy of improper contributions on a question of fact, whether these co-ordinate departthem by the latter,- an object which was shown to ments of the State government have properly disbe important by the experience of the States during charged such duty. The authority and duty to asthe confederation period - we feel constrained to certain the facts which ought to control legislative hold the provision of the statute to be constitutional. action are, from the necessity of the case, devolved It being conceded that the State, under its general by the Constitution upon those to whom it has given police power, may lawfully prohibit the killing of the power to legislate, and their decision that the the game birds in question, it may of course con- facts exist is conclusive upon the courts, in the abtrol such killing, and the times and purposes thereof. sence of an explicit provision in the Constitution It may lawfully enact that they may be killed and giving the judiciary the right to review such action. sold and held for sale only for domestic consump- We therefore hold, that in passing upon the constition. The State, in the exercise of its power, in- tutionality of a statute, the court must confine itself stead of prohibiting the killing altogether, permits to a consideration of those matters which appear the person killing them to acquire only a qualified upon the face of the law, and those facts of which right in them, namely, the right to appropriate them it can take judicial notice. If the law, when thus to his own use, and the right to sell or transport considered, does not appear to be unconstitutional, them for domestic use. The birds in question never the court will not go behind it, and by a resort to become articles of commerce within the meaning of evidence undertake to ascertain whether the Legisthe term contended for by the defendant. They lature in its enactment observed the restrictions became private property of a qualified character. which the Constitution imposed upon it as a duty to The law limited the purposes for which they might I do, and to the performance of which its members it is said that by taking out the policy for the benefit of her children Mrs. Vail constituted the defendant company a trustee for her children, and the were bound by their oaths of office. 'If evidence it, or attempted to do so. The existence of such was required, it must be supposed that it was before power, even if its existence be conceded, is not suffi the Legislature when the act was passed; and if cient to make the policy a part of her estate, or authorany special finding was required to warrant the pas-ize her administrator to sue thereon. Furthermore, sage of the particular act, it would seem that the passage of the act itself might be equivalent to such finding.' Cooley Const. Lim. *187. This view seems to be sustained by the decisions of the high-trust having failed because she died childless, that est courts of other States, and is in harmony with the central idea of the Constitution in prescribing the independence and equality of the three great departments of the State. The following are some of the cases which in principle sustain the conclusion we have reached: Manuf. Co. v. Shanahan (N. Y. App.), 28 N. E. Rep. 358; Rumsey v. People, 19 N. Y. 41; Hovey v. Foster, 118 Ind. 502; Lusher v. Scites, 4 W. Va. 11; De Camp v. Eveland, 19 Barb. 81. If experience shall demonstrate that further restriction upon legislative power over the subject of appropriations of public money is necessary, it is within the power of the people to so amend the Constitution as to provide that, notwithstanding an appropriation made by the Legislature for its payment, the legality of every claim against the State shall or may be the subject of judicial investigation as to the facts upon which it rests. But in the absence of a plain direction to that effect, the courts are not authorized to institute such an inquiry." In McElwee v. New York Life Ins. Co., Circuit Court, E. D. Missouri, October 28, 1891, 47 Fed. Rep. 798, it was held that where a policy of insurance on the life of a wife is made payable to her children, and she dies before any children are born, her executor cannot maintain an action at law for the amount of the insurance. The court said: "The policy was obviously intended as a provision for such children as might be born of the marriage between Mr. and Mrs. Vail, and for no one else. The promise was to pay to the children; they were the beneficiaries. If Mrs. Vail had contemplated the possibility of death before she had given birth to any children, some provision would probably have been inserted in the policy touching the disposition of the insurance money in that event. What such provision would have been it is impossible to say, and it is useless to indulge in speculation on that subject, as the court is powerless to make a contract for the parties covering that contingency. It can only enforce such a contract as the parties have themselves made. Some stress is laid on the fact that, according to the rule which prevails in some States, Mrs. Vail retained the power, so long as she held the policy, to change the beneficiaries with the consent of the insurer. Kerman v. Howard, 23 Wis. 108; Gambs v. Insurance Co., 50 Mo. 47. It is claimed that because she retained such power, her administrator may recover on the policy. I am unable to assent to that proposition. Even if she had a right to change the beneficiary, it was a mere power, to be exercised with the company's consent, and, as the agreed case shows, she never exercised the fund in the trustee's hands inures to the benefit of her estate, in the same manner that a fund left in trust for a given purpose will inure to the benefit of the donor or his heirs, if for any reason the trust cannot be executed. It is sufficient to say of this contention, that if the principle invoked has any application to the case at bar, it is only applicable to the premiums actually paid up to the time of Mrs. Vail's death, and the interest accumulated thereon; and the remedy is in equity. Mrs. Vail did not place $5,000 in the hands of the defendant company to be held for the benefit of or in trust for her children. She contracted to pay $39.60 quarterly, and up to the time of her death had paid only two quarterly installments. The contract was entered into with the expectation that Mrs. Vail would live many years, and that the premiums paid in the meantime, with accumulated interest, would equal the face of the policy at the end of her expectancy. Under the circumstances, it cannot be maintained, even on the trust theory above outlined, that the defendant is liable to the plaintiff in the sum of $5,000, or in any other sum, in a strictly legal proceeding." In Illinois Cent. R. Co. v. Miller, Supreme Court of Mississippi, April, 1891, it was held that where a railroad company digs a ditch along its track, and thereby conducts the water collected therein on to low land at a distance from where the ditch commences, it is liable for the damage, whether the water be mere surface water or water diverted from natural water-courses by the construction of the roadbed. The court said: "The rules of the civil and of the common law in relation to surface water are directly contrary to each other. Under the first, the lower of two adjacent estates owes a servitude to the other to receive the natural drainage, and the other estate cannot withhold from the lower the supply of water flowing naturally. Under the rule of the common law the owner of the upper estate may withhold, and the owner of the lower estate may repel, mere surface or superficially percolating water upon or from his estate. In the States of Pennsylvania, Illinois, North Carolina, California and Louisiana, and probably Ohio and Missouri, the rule of the civil law is adopted, while in England, Massachusetts, Maine, Vermont, New York, New Hampshire, Rhode Island, New Jersey and Wisconsin the rule of the common law prevails, at least as to rural estates. Gould Waters, §§ 265, 266, and authorities in notes. But neither under the rule of the civil nor of the common law is one permitted to collect surface water falling upon his own land or that of another in artificial channels, and to discharge it in undue and unnatural quantities upon the land of another. Gould Waters, § 271; Barkley v. Wilcox, 86 N. Y. 148. The defendant has, for the protection of its roadbed, dug a ditch along its eastern line, into which is collected surface water falling upon adjacent lands for a half mile along the ditch, and which, but for the ditch, would have flowed upon lands of other persons, and has discharged the water thus accumulated upon the lands of the plaintiff, which were free from the flow of the water in its natural course. Upon all the authorities this is an unlawful act, and for it the plaintiff is entitled to recover." PARENT AND CHILD-DEATH BY WRONGFUL ACT-ACTION FOR INJURY TO ADULT CHILD. OREGON SUPREME COURT, JULY 15, 1891. PUTMAN V. SOUTHERN PAC. Co. Under section 34 of Hill's Code, a mother, during the continuance of the relation of parent and child, may maintain an action in her own right for damages caused by the death of her child, while section 371, Id., gives to the personal representative a right to recover for any injury which the estate may have sustained by reason of the death of an adult, or one emancipated from parental service. B. B. Beekman and Watson, Ilume & Watson, for appellant. Bronaugh, Mc Arthur & Bronaugh, for respondent. LORD, J. This is an action brought by the plaintiff, as the widowed and dependent mother of Robert Putman, deceased, to recover damages from the defendant company on account of his death. In substance, the complaint alleges that the deceased was in the twenty-third year of his age, was active, strong, in good health, etc., and that up to his death by the wrongful act of the defendant, and long prior thereto, he had contributed largely to the plaintiff's support, and would have continued to do so if he had lived, and that she was and still is in great need, etc. After making the usual denials, the answer sets up as a separate defense that the said Robert Putman was, at the time of his death, a married man, and left a widow surviving him, etc., the appointment of an administrator of the estate of Robert Putman and the recovery of a judgment by such administrator against the defendant in another action for his death, etc., and the payment and satisfaction thereof. A demurrer to this defense, as insufficient in law to defeat a recovery, was overruled and judgment thereupon was rendered in favor of the defendant. This action is based ou section 34, Hill's Code, which provides: "A father, or in case of the death or the desertion of his family, the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward," while the action by the administrator was prosecuted under section 371 of Hill's Code, which provides: "When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed $5,000, and the amount recovered, if any, shall be administered as other personal property of the deceased person." That these sections were in tended to give distinct and independent rights of actiou seems manifest from a consideration of the terms of section 369, preceding, which after providing that a cause of action arising out of an injury to the person dies with the person of either party, except as provided in section 371, supra, expressly declared that the provisious" of title 6 (which includes section 371) “shall not be construed so as to * ajc *defeat or prejudice the right of action" given by section 34, supra. The action brought by the plaintiff for the injury she sustained by the wrongful death of her son, who was a married adult, and left a widow surviving him, is based on the hypothesis that the word "child," as used in that section, is not the equivalent of “minor;" that the relation of parent and child may continue after majority as well as before, and that when it does so exist in fact the parent injured by such death would have a right of action within the meaning of section 34. This view of that section, coupled with section 371, supra, regards the two as intended to accomplish the same purpose as the statutes 9 and 10 Victoria, chapter 93, commonly known as "Lord Campbell's Act," or those of the American States modelled upon it. At common law no action could be maintained for the death of a human being caused by the wrongful act of another. Its maxim was actio personalis moritur сить persona. Lord Campbell's Act, and the laws of those States which, in one form or another, have adopted it, were innovations upon this doctrine of the common law, and designed to supply or obviate its defect by giving to the personal representative a right to recover compensation as trustee for the benefit of the wife, husband, parent and child, left in a worse pecuniary position by reason of the injured person's death. The right of action is not given to the personal representative for the benefit of the estate, but the action is "for the benefit of the wife, husband, parent and child," and the "executor or administrator of the party deceased is a mere nominal party, who sues for the benefit of the parties named in the act, and who are severally to have damages proportioned to the injury resulting to each." Blake v. Railroad Co., 18 Q. B. 93. The damages suffered by the estate of the deceased would have nothing to do with the amount of recovery. The theory of such statutes is that those entitled to its benefits have a pecuniary interest in the life of the person whose death was occasioned by the wrongful act, and that the value of the injury sustained is to be ascertained by the jury, and apportioned as directed by the law. It is to compensate them for the pecuniary loss they have sustained, and the damages must be restricted to an amount sufficient, in a pecuniary sense, to indemnify them for such loss on account of the death of the injured person. Campbell's Act," said Mr. Justice Quain, “gives an entirely new action, not an action connected with the estate of the deceased in the slightest degree, and the damages recoverable in it would be no part of the estate of the deceased." Bradshaw v. Railway Co., L. R., 10 C. P. 189. Under such statutes then the damages recoverable are never assets of the decedent's estate, to be applied according to its general necessities, but compensation wholly for the pecuniary loss sustained by those injured by his death, to whom such damages exclusively belong, and to whom they are to be distributed as may be directed by their provisions. "Lord Under our statute (section 371, supra) the damages recoverable, which are not to exceed $5,000, are to be administered as other personal property of the deceased. They become assets to be applied by the administrator to the payment of debts, or distributed, as the exigency of the estate may require, and the law governing his duties as administrator may direct. He sues in his capacity as a legal representative of the es |