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itself to dictate to the courts a construction of the law. The effect upon the judicial construction will be considerably impaired by any want of harmony existing between the judiciary committees. Mr. Tremain, who submitted the report of the sub-committee, says that the second section of the act confers authority to arrest and bring into the District of Columbia, for trial, all persons who have committed offenses against the United States, within the district, who may be found in any part of the United States; and that libel published within the district is such an offense against the United States. He makes a cogent argument to sustain this position and fortifies it with citations. The report, however, was laid on the table when it came up before the full committee.

The constitution of the State of New Jersey, after an existence of thirty-one years, is now to be amended. A constitutional commission met in the

summer of 1873 and agreed upon five amendments, which were reported to the governor, and by him transmitted to the legislature at its session last year. In accordance with the constitutional provisions relating to amendments, two legislatures have acted upon them, and they are to be submitted to the people for final action. One of the amendments prohibits the loaning of the public credit of any county, city, borough, township or village to any individual, association or corporation.

The so-called "Press Gag Law" is to be tested judicially in the Chandler-Buell case, and Mr. Buell has been arrested in St. Louis by the United States marshal. The arrest was made upon a warrant in the usual form, charging the defendant with an offense against the laws of the United States. The case was to come before Judge Treat on a writ of habeas corpus, and, whatever may be his decision, it is announced that an appeal will be taken, and the case will ultimately be brought before the United States Supreme Court.

There seems to be a growing tendency to restrict the powers of judges in jury trials, and to render the judge simply the guide of the parties in the introduction of evidence, and of the jury as to questions of law. At an early period in England, and even down to the present century, it was a frequent occurrence for the judge to make himself master of the entire situation by ruling on questions of law and directions on questions of fact, which left the jury nothing to do but to render formal obedience to the dictates of the judge. And in this country instances are by no means rare, where the court does not confine itself to the explanation of the law of the case, but discourses upon the facts, thus sending the jury to their chamber with the opinion of the court on the evidence pre-occupying their minds.

It is a

very difficult matter to draw the line between commenting fairly and unfairly upon the evidence in the judge's charge. And it has been proposed to confine the judge entirely to the law of the case. Some effort is being made to secure legislation to that effect in this State, and in other States this legislation has been already secured.

It is announced that the members of the executive branch of the International Code Committee of America are now at work, in connection with the Association for the Reform and Codification of the Law of Nations, in making preparations for the next meeting of the association, which is expected to be held next fall, either in Brussels or The Hague. It is proposed to hold a council meeting within a short time, simultaneously with a similar meeting of the English council in London. The American committee are desirous of having the meeting of the association, for 1876, held in Philadelphia or New York during the centennial. This would be an excellent arrangement, and would afford opportunity for many jurists and publicists in this country, who are in favor of international codification and arbitration, but whose voices have not yet been heard on the subject, to come forward and express their approbation of the objects of the association.

The Supreme Court Reporter's bill, after having been somewhat amended, has been reported favorably by the Judiciary Committee of the Assembly. The bill, as amended, provides that the meeting of the judges, to appoint a reporter, shall be held in Albany on the second Wednesday of July next. The bill originally provided that the meeting should be held at such time and place as the presiding justice of the First Department should appoint. There is no possible objection to a designation in the act of the time and place of the meeting-in fact there are several reasons that might be well urged why such a designation is to be preferred to the provision of the original bill.

A point of considerable interest to importers was decided by Judge Blatchford last week in a prosecution by the government against Hughes & Co., for an alleged fraud upon the revenue, committed by importing linen thread at an under valuation. This charge was preferred in 1873 and the books and papers of Hughes & Co. were seized and removed to the Custom House, where they were detained for three months. The firm refusing to settle, suit was brought. Mr. Eaton, of counsel, insisted that under the law of February 25, 1868, which provided that the books and papers of a firm which have been "obtained by means of any judicial proceeding" shall not be used as evidence against those from whom they were so obtained, the books and papers

of Hughes & Co., which had been seized by the government, could not be used by the prosecution in evidence. The court sustained this view of the law, and there being no other evidence, a verdict was directed for the defendant. Under the act of June 22, 1874, however, the government can, by specifying what books and papers it desires, and the charge it expects to prove by them, either obtain possession of the books and papers or consider the charges confessed. Judge Blatchford held that this act would not apply to suits begun prior to its passage.


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purposes for which town lots are ordinarily used
"without subjecting himself to penalties ** *
and making the court a particeps criminis in his
offense." This was a most singular ground upon
which to place the decision of the court; but as
Cofer, J., who delivered the opinion, said: "For-
tunately we are not reduced to the alternative of
decreeing the sale of a grave-yard already filled with
the ashes of the dead, or of seeming to refuse to
carry out the commands of the law." But upon
general grounds it may be said that land held for a
specific use, which for that reason cannot be en-
hanced in value by the improvements in the highway,
cannot be subjected to assessment for benefits. See
City of Bridgeport v. R. R. Co., 36 Conn. 255; S.
C., 4 Am. Rep. 63, 70. In Matter of Albany Street, 11
Wend. 149, where a highway was laid out through
a cemetery holden by a church for the specific pur-
poses of a burying ground only, it was held that the
cemetery was not liable to assessment. But in
Buffalo City Cemetery v. City of Buffalo, 46 N. Y.
506, it was held that a cemetery was liable to
assessment to defray the expenses of a sidewalk in
the street along the cemetery.

In Horne v.

Meakin, 115 Mass. 326, the liability of

In Hutchins v. Kimmell, 2 Cent. Law Journal, 106, the Supreme Court of Michigan held that a foreign marriage is prima facie established by proof of the ceremony, the certificates of which may be put in evidence without first proving the foreign law on the subject. In this case Kimmell brought action against Hutchins for criminal conversation with his wife. The marriage of Kimmell was alleged to have taken place in Wurtemburg, and the certificate was produced. Cooley, J., who delivered the opinion, said that in Michigan, whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together profess-livery-stable keepers was considered in the Supreme edly in that relation, proof of these facts would constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. The judge also cited cases decided in New York, Pennsylvania, Vermont, Ohio, New Hampshire, Alabama, California and Louisiana, showing that the law in these States was similar. And such being the law in this country, it was for the party disputing the marriage to show that it was invalid by the laws of the country where it took place. Raynham v. Canton, 3 Pick. 297; Steadman v. Powell, 1 Add. 58; Crane v. Hardy, 1 Mich. 36.

In Louisville v. Nevin, 2 Cent. Law Journal, 108, the Court of Appeals of Kentucky decided that a municipal corporation has no power to charge a cemetery with the cost of grading and paving an adjacent street, and a court of equity will not decree a sale of a lot in the cemetery to enforce the lien of the contractor. The lot had been completely filled with graves and rendered useless for any other purpose than as a resting place for the dead. The court were of the opinion that the sale of property of this character ought not to be decreed where no imaginable beneficial use to which it could be put would not subject the purchaser to punishment under the penal statutes of the State, which declare that any person who shall willfully mutilate the graves, grounds, etc., of a cemetery, shall be fined or imprisoned. The effect of this statute was said to be that the purchaser could not use it for any of the

Court of Massachusetts, and it was held that, where the liveryman lets a horse to A, knowing that it is to be used by A's son to take his family to a funeral, he is liable to the son and any member of the son's family, for an injury caused by the unsuitableness of the horse for the purpose for which it was hired; and it is immaterial that the liveryman did not know that the horse was unsuitable. Cases on the liability of liverymen are exceedingly rare. There are, however, numerous decisions defining the liability of those who hire horses from liverymen.

In Central National Bank v. Pratt, 115 Mass. 539, the Supreme Court of Massachusetts decided that the provision of the United States Statutes of 1864, ch. 106, § 30, limiting the forfeiture for the making of usurious charges by national banks to the interest, applies as well to banks in States where a rate of interest is fixed by law as to banks in States where no rate is fixed; and that the laws of New York, imposing penalties for taking usury, do not apply to national banks established within the limits of that State. This decision is directly in conflict with First National Bank of Whitehall v. Lamb, 50 N. Y. 95. Morton, J., who delivered the opinion, said: "We are aware that the Court of Appeals of New York has decided differently. * But, notwithstanding the great respect we have for that eminent tribunal, we are unable to concur in the conclusions it reached." The Massachusetts decision is supported by First National Bank of Columbus v. Garlinghouse, 10 Am. Rep. 751; 22 Ohio St. 492.

* *

LIABILITY OF GRATUITOUS BAILEES. It is a familiar rule that a gratuitous bailee is bound only to ordinary care and diligence and is responsible only for gross neglect. Formerly the phrase "gross neglect " was interpreted as synonymous with bad faith. Thus in Foster v. Essex Bank, 17 Mass. 479, the leading American case, the court speak of the degree of care required of a gratuitous bailee as that "which is necessary to avoid the imputation of bad faith." Again, it was formerly held that the gratuitous bailee was not liable if he took the same care of the thing bailed, that he bestowed upon his own property of the like description. In the case above cited the court say that "the degree of care which is necessary to avoid the imputation of bad faith, is measured by the carefulness which the depositary uses toward his own property of a similar kind." But these doctrines have been disapproved by the more recent adjudications. Parsons remarks upon this (1 Cont. 574): "It has been very frequently stated by writers, and is said in some cases that a depositary is not liable as for gross negligence, if he shows that he has taken as much care of the goods of the bailor as he has of his own, but this is not law." "It seems very clear that this is not a reliable test. For we have already seen that a depositary is liable for gross negligence, though a jury may be satisfied that he is wholly innocent of any fraudulent intent; and it is obvious that persons even who usually exercise great care may in some instances be guilty of very great negligence in the management of their own affairs. It also seems to be equally clear upon the modern authorities, that it is no defense for a depositary who has, by his negligence, lost the goods intrusted to him, that he has been equally negligent in regard to his own property."

It is not a little difficult to conjecture how the ancient law applied this test of bad faith in cases where the subject of the bailment was unquestionably lost or destroyed, as by shipwreck or fire, for instance, and in cases where the bailee also suffered a simultaneous loss of his own property, for in such cases there could be no motive of interest or gain moving the bailee, and upon which bad faith could be predicated. And yet the carelessness even in such cases might be so glaring as to deserve the application of gross. For example, if a man should keep his ashes in a bandbox, and a conflagration should ensue therefrom, he would incur the liability of a gratuitous bailee, although no imputation of bad faith could be made. The question is very learnedly and conclusively discussed by Justice Story in Tracy v. Wood, 3 Mason, 132. He observes: "I agree to the law as laid down at the bar, that in cases of bailees without reward, they are liable only for gross negligence. Such are depositaries, or persons receiving deposits without reward for their care; and mandataries, or persons receiving goods to carry from

one place to another without reward. The latter is the predicament of the defendant. He undertook to carry the gold in question for the plaintiff, gratuitously, from New York to Providence, and he is not responsible, unless he has been guilty of gross negligence. Nothing in this case arises out of the personal character of the defendant as broker. He is not shown to be either more or less negligent than brokers generally are; nor if he was, is that fact brought home to the knowledge of the plaintiffs. They confided the money to him, as a broker of ordinary diligence and care, having no other knowledge of him; and, therefore, no question arises as to what would have been the case if the plaintiffs had known him to be a very careless or a very attentive man. The language of the books as to what constitutes gross negligence, or not, is sometimes loose and inaccurate from the general manner in which propositions are stated. When it is said that gross negligence is equivalent to fraud, it is not meant that it cannot exist without fraud. There may be very gross negligence in cases where there is no pretense that the party has been guilty of fraud; though certainly such negligence is often presumptive fraud. In determining what is gross negligence, we must take into consideration what is the nature of the thing bailed. If it be of little value, less care is required than if it be of great value. If a bag of apples were left in a street for a short time, without a person to guard it, it would certainly not be more than ordinary neglect. But if the bag were of jewels or gold, such conduct would be gross negligence. In short, care and diligence are to be proportional to the value of the goods, the temptation and facility of stealing them, and the danger of losing them. It appears to me that the true way of considering cases of this nature is, to consider whether the party has omitted that care which bailees, without hire, or mandataries of ordinary prudence usually take of property of this nature. If he has, then it constitutes a case of gross negligence. The question is not whether he has omitted that care which very prudent persons usually take of their own property, for the omission of that would be but slight negligence; nor whether he has omitted that care which prudent persons ordinarily take of their own property, for that would be but ordinary negligence; but whether there be a want of that care which men of common sense, however inattentive, usually take, or ought to be presumed to take of their property, for that is gross negligence. The contract of bailees without reward is not merely for good faith, but for such care as persons of common prudence in their situation usually bestow upon such property. If they omit such care it is gross negligence. The present is a case of a mandatary of money. Such property is by all persons, negligent as well as prudent, guarded with much greater care than common prop erty. The defendant is a broker, accustomed to the

use and transportation of money, and it must be presumed he is a person of ordinary diligence. He kept his own money in the same valise, and took no better care of it than of the plaintiff's. Still, if the jury are of opinion that he omitted to take that reasonable care of the gold which bailees without reward in his situation usually, or which he himself usually takes of such property under such circumstances, he has been guilty of gross negligence."

The question of gross negligence is one of fact. The leaning of the older cases was to make it a question of law, but the contrary is now firmly settled. Doorman v. Ellis, 2 Ad. & Ellis; Bank of Lyons v. Ocean Bank of New York, 48 How. Pr. 148.

The burden of proof is practically on the bailee, for all that is necessary for the plaintiff to show in order to maintain his action, is the deposit, a demand, and a neglect or refusal to deliver. It then becomes incumbent on the defendant to show that the property was lost without his fault. Waggoner v. Colvin, 11 Wend. 27.


Our times seem to be remarkable for exuberant sentiment respecting offenses that are simply mala prohibita, and for excessive punishment of such offenses. We are informed that Mr. Bergh, the distinguished humanitarian, evidently believing in the ancient adage that "a cat may look at a king,' caused a man to be sent to prison a few days ago for killing a cat. The accounts of the case give us no information concerning the virtues of this particular cat, nor of the depravity of the slayer. We can conceive of circumstances under which the prisoner's conduct might be construed as justifiable felicide, as, for example, when the animal disturbed his slumbers by persistent and inharmonious vocalization in the neighborhood of his dormitory. We ourselves would not scruple to kill a cat under such circumstances; indeed, we mean to do so unless certain cats in the vicinity of our residence take a hint from this article. And we defy Mr. Bergh to hurt us for it, either. We have the authority of a great jurist to protect us. In Brill v. Flagler, 23 Wend. 354, Judge Nelson laid it down as the law, that the inhabitant of a dwelling-house may lawfully kill the dog of another, where such dog is in the habit of haunting his house, and by barking and howling, by day and by night, disturb the peace and quiet of his family, if the dog cannot otherwise be prevented from annoying him. And if a dog, why not a cat ? The distinguished judge whom we have quoted had some sympathy for human nature; said he, "It would be mockery to refer a party to his remedy by action; it is far too dilatory and impotent for the exigency of the case." We have no prejudice against well-behaved cats. Montaigue had a favorite cat, and so had Robinson Crusoe. But even the

example of these eminent men would hardly induce us to shut a man up in jail for three months, and possibly cause the starvation of his family, simply because he had killed a cat.

The same sentimentality works in a strangely different way on the other coast of this continent. In California, instead of acting upon the principle that a human being is of more value than many sparrows or cats, they have just acquitted a man for slaying the seducer of his wife; not on the time-honored plea of insanity, but upon a bold justification of the act by the prisoner's counsel. This, of course, was in defiance of the charge of the court, but the result leads us to suggest to Mr. Bergh that there are certain animals that need protection in California.

Again, the modern theatre has excited the ire of certain religious and legal authorities. Within the last few days, the police authorities of the city of New York have undertaken to break up a certain class of theatrical entertainments, which are commonly known as the "Varieties." We should not be warranted in saying that these puritans are wrong, and that the entertainments in question are not morally objectionable. We never have heard (nor seen) the "Varieties," nor have we ever been at the Rev. Dr. Talmadge's tabernacle, and consequently we know nothing of either except from hearsay, and our most copious source of information concerning the former is the latter; but our information leads us to suspect that there is not much choice between the can-can of the theatre and the cant-cant of the tabernacle. The Reverend Dr. seems difficult to suit, for while he rails against the women of the theatre for not wearing enough dress, he scolds those of the tabernacle for wearing too much. The Doctor should remember, when he denounces the actors of the nude drama, that charity covers a multitude of sins, and should lend a little of that garment to wrap the objects of his wrath; - should temper the wind of his denunciation to the shorn and skipping lambs of the theatre. But there seems to be one man in New | York who is not awed by the clerical thunders that reverberate across the East river, and that is the obstinate twelfth juror, who, in a recent criminal prosecution of the proprietor of one of these objectionable play-houses, could not be made to see that the hilarious dances by succinct-skirted damsels at the place in question were opposed to good morals. Doubtless the obstinate man was wrong, still, if we are correctly informed, he had seen the can-can, and the other jurors had not, and we do not understand that an exhibition of the performance was offered in evidence. The evidence would have been competent under the decision in State v. Pepper, where the question was as to the propriety of the efforts of a certain psalm-singer, who was indicted for disturbing the worship of the other members of the congregation by his uninstructed attempts at vocal melody. Literature, indeed, furnishes us a case still more

nearly in point. In Longfellow's drama, The Spanish Student, the archbishop of Toledo is represented as saying:

"Knowing how near it touched the public morals,
And that our age has grown corrupt and rotten

By such excesses, we have sent to Rome,

Beseeching that his Holiness would aid

In curing the gross surfeit of the time,

By seasonable stop put here in Spain

To bull-fights and lewd dances on the stage."

By a mandate from his holiness, the first had been suppressed.

The cardinal, however, fearing trouble among the people in consequence of the interdiction of their favorite dances, suggested to the archbishop: "I would act advisedly herein;

And, therefore, have induced your grace to see
These national dances ere we interdict them."

And thereupon, Preciosa, the heroine of the drama, a beautiful gipsy, was introduced to their presence, the archbishop remarking:

"Now shall your eyes behold,

In what angelic, yet voluptuous shape
The devil came to tempt Saint Anthony."

She dances, and the stage director supplies the denouement:

"The archbishop and the cardinal look on with gravity and an occasional frown; then make signs to each other, and as the dance continues, become more and more pleased and excited, and at length arise from their seats, throw their caps in the air, and applaud vehemently as the scene closes."

Now, possibly a similar experiment in the case under consideration would have been attended by a different result, but it would at least have given the dancers their day in court. If the chief dancer of the can-can · we beg pardon of the lady for being ignorant of her name, but we dare say Dr. Talmadge knows it could have been permitted to dance before the doctor and the chief of police, perhaps they might have relented. It is, perhaps, right that the police authorities should break up these entertainments, but we do not believe that the poor girls will be benefited by being consigned to prison by the magistrate, or to eternal perdition by the Brooklyn clergyman. Even in the historic leading case of Jacob Hall, the rope-dancer of the reign of Charles the Second, so harsh a fate was not denounced, but he was simply enjoined as a nuisance.

Finally, we think it is a great pity that these sentimentalists could not invent some process to choke off a public entertainment now greatly in vogue in the vicinity of New York, and much more deleterious to public morals than the slaughter of many cats and the dancing of many can-cans. We refer to the great scandal trial. A more indecent and demoralizing exhibition was never beheld before nor since the flood. The parties are all sentimentalists of the most idiotic species. The complainant, while holding his wife up to public contempt and infamy as

an adulteress, avows and reiterates that he believes her pure, "white-souled," and stainless; the mutual friend frankly admits that he peristently lied for years to conceal the detestable crime of a pretended christian clergyman; the wife of the mutual friend admits that when the defendant was confessing his adultery to her, she, unsolicited, kissed him on the forehead, and told him he was as good a man as there was; and a series of so-called love letters, between the complainant and his wife, are read, so maudlin, so extravagant, so blasphemous, that the perusal makes us doubt the sanity of the writers. All this filthy stuff is printed every day, and read all over the country, by young boys and girls, by pure women who would shrink from the sight of the cancan, by men who would not go to a theatre or kill a cat, and is talked about openly and rather jocosely by eminently respectable people. We wish Bergh and Talmadge would give up the cat and the cancan business, and hoot these actors off the stage, and clear the public atmosphere of this horrible moral pestilence. If they would accomplish that, they would deserve the thanks of every decent man and woman in the community, and we, ourselves, would do almost any thing for them; would ever go, if we ever dare trust ourselves in Brooklyn again, to hear the doctor in his tabernacle.


In Evansville & Crawfordsville Railroad Co. v. Androscoggin Mills, the United States Supreme Court considered the effect of limitations in a bill of lading given by a common carrier. It appeared in this case that the railroad company operated a road in Indiana, between Crawfordsville and Evansville, and had an agency in Mississippi, whence they contracted to transport cotton to Boston, Mass., their own road forming a portion of the route. In January, 1873, the agent of the railroad at Columbus, Miss., received two hundred bales of cotton to be transported to Boston, Mass. The bill of lading contained the following clause: "The Evansville & Crawfordsville R. R. Co. hereby agree that, upon arrival at Evansville, and delivery of the property above described and consigned, they will receive and forward said property to destination upon the following conditions: That the shipper, owner and consignee do hereby release the said Evansville & Crawfordsville R. R. Co., and the boats and railroads with which they connect, from the acts of Providence, or from damage or loss by fire or other casualty while in depots or places of transhipment also, damage or delays by unavoidable accidents; also, loss by fire, collision, or dangers of navigation, or for loss or difference in weights, torn baggage, condition of said property." Immediately following this condition, which was printed in ordinary black ink, was another clause printed in red ink, viz.: "The Evansville & Crawfordsville Railroad Company will not be liable for loss or damage by fire, from any cause whatever."

Thirty bales of cotton were burned before reaching Evansville; and the question was whether the bill of

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