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The Court of Appeals of Maryland has just reiterated the well-established doctrine that the suicide of an insured person will not avoid a policy conditioned to be void in case the insured shall die by his own hand, provided the person was at the time insane. A somewhat lengthy resumé of the opinion was given in the daily papers, but nothing to indicate that any new or doubtful point was passed upon. The real difficulty in all such cases is to

establish a fair and satisfactory rule as to the degree of insanity necessary to save the policy. That difficulty has not, in our opinion, been overcome in this

State or in Massachusetts. In the latter State the

decisions hold that the policy is avoided unless the suicide is perpetrated in the madness of delirum." And in a recent decision in this State (Van Zandt v. Mutual Benefit Life Insurance Company, 55 N. Y. 169) the Court of Appeals held that the policy is void unless the insured at the time of committing the act

is laboring under a degree of mental disease about

sufficient to meet the definitions of insanity in Lord Coke's day. One argument, which the courts have advanced why in such cases they should strain a point in favor of the companies, is that to hold that suicide does not avoid the policy will have a tendency to encourage some men's speculative turn, and lead them to insure their lives and then commit suicide. But suppose this absurd theory were true or probable, what has the court to do with it? That is the business of the insurers, and we know of no

reasonable ground to suppose they are not abundantly able to take care of themselves. The proviso avoiding a policy in case of suicide is the language of the company, and is also in the nature of a forfeiture, and should for both reasons be construed, if its meaning is doubtful, in favor of the assured.

The Bar Association, at its last meeting, appointed a committee to inquire into the workings of the present system of disposing of litigation in New York. The opinion was expressed in the discussion attending the resolution, that the city of New York had more judges than were necessary, and that under a proper system fewer judges could dispose of the business with greater dispatch. The fact is that the city of New York has more judges to the acre than any other part of the universe. In the three superior courts there are seventeen resident judges, besides Judge Daniels, of Buffalo, who devotes almost his entire time to the city, and Judge Westbrook, who frequently goes down to relieve his judicial brethren. Then there is the Marine Court, the City Court, the Recorder's Court, and the Court of Arbitration, which does its share of the work to say nothing of the District Courts. Aside from these minor courts the judicial force of New York city alone is greater, in point of numbers, than the entire judicial force of the law courts of England,

and the "law's delay" is also greater. The nineteen judges of England dispose of most of the legal business of thirty millions of people, while twenty odd judges are required in New York to administer justice to one million.


IN Northeastern Railway Co. v. Wanless, L. R., 7 H.

L. 12, the House of Lords recently decided a

point in the law of negligence, concerning which

there has been some conflict in the American de

cisions, and especially in the decisions of this State. The railway crossed a highway at grade. The plaintiff, in attempting to cross the railway, was knocked waited until one train had passed, and that the train down by a passing train. It appears that he had which injured him was one which followed imme

diately upon the other, but from the opposite direction. By the company's rules it was ordered that, unless a written order to the contrary be given by the engineer, the gates shall be kept shut across the carriage roads, except when required to be opened to allow the railway to be crossed; and that, when the railway is required to be crossed, the gate-keeper shall, before opening the gates, satisfy himself that no engine is in sight; he shall then show his danger signals, and keep them exhibited until the line is clear, when he shall close the gates and alter the

signals. As far as can be gathered from the evidence, no signal was exhibited, The learned counsel for the railway company contended that, by reason of the plaintiff's contributory negligence, there was no liability attaching to the company. The House of Lords thought otherwise, and by so doing upheld the judgment of the courts below. The fact to be noted in this case is, that the law had cast upon the appellants a certain duty; that was to keep closed the gates of the railway at level crossings, at those times at which it would be dangerous to allow the public to cross the line. The Lord Chancellor remarked, what is really self-evident, that the fact that the gates at this level crossing were open amounted to an intimation to the public that the line was clear. The principle would, of course, have been the same had the law required a flagman at the crossing instead of a gate. But in Brown v. Buffalo, etc., Railroad Co., 22 N. Y. 191, it was held, that the breach of a similar duty imposed by law only gave a right to the penalty affixed, and was not evidence of negligence. And in Havens v. The Erie Railway Co., 41 N. Y. 296, it was held that an omission to give the signals required by statute did not absolve a traveler, approaching a crossing, from looking up and down a track. So in Bellefontaine Railway Co. v. Hunter, 33 Ind. 335; S. C., 5 Am, Rep. 201, it was held, that in the absence of a special statute the omission of all signals at crossings is not negligence

per se on the part of a railroad. In Hart v. The Erie Railway Co., 3 Alb. Law Jour. 312 (a case which the reporter did not see fit to include in his reports), the Court of Appeals of this State held that a traveler on a public road has a right to rely on a railroad company's complying with the law, and to expect that the usual warnings will be given of the approach of a train. And to the same effect is Tabor v. Missouri Valley Railroad Co., 16 Mo. 353; S. C., 2 Am. Rep. 270.

It is a settled rule of law that where lands are conveyed to husband and wife jointly, they take as tenants by the entirety. In Beach v. Hollister, 5 N. Y. Sup. 568, the question arose whether, during the coverture, the husband's interest could be sold on execution. The court held that our statutes relating to the property of married women did not change the nature of the estate, and that the husband having, during his life, the absolute control of the estate and the right to mortgage, lease, or convey his interest, it was the subject of sale on execution, and that the purchaser would take an estate for the life of the husband, and, in case he survive his wife, the entire estate. On the other hand, it is stated in Rorer on Judicial Sales (§ 549), that "no separate proceeding against one of them during their joint lives will, by sale, affect the title to the property as against the other one as survivor, or as against the two during their joint lives;" and French v. Mehan, 56 Penn. St. 286, and McCurdy v. Canning, 64 id. 39, are cited as authorities. But an examination of these cases shows that they were based upon a statute relating to married women, and that the court expressly conceded that at common law the husband's interest could be sold under execution.

statute is similar to our statutes relating to married
women; and as to their effect on the tenancy by
entirety, there appears to be a conflict between the
case of Beach v. Hollister, supra, and McCurdy v.
Canning, supra.
The Pennsylvania court is sustained

on this point by Davis v. Clark, 26 Ind, 424; Simp-
son v. Pearson, 31 id. 1; Chandler v. Cheney, supra.

In Standish v. Narragansett Steamship Co., 111 Mass. 512, was decided an interesting question as to the rights of carriers of passengers. The plaintiff was a passenger on defendant's steamboat, having a ticket for New York; on retiring to his berth at night he exhibited his ticket to an employé of defendant, whose duty it was to examine it. The next morning the boat having arrived in New York, as plaintiff was passing off the boat with the other passengers his ticket was demanded of him by the defendant's agent, and he, not producing it, was turned back. Afterward he explained to defendant's agent that he could not find his ticket and demanded to be allowed to go ashore, but the agent refused to allow him so to do unless he either produced the ticket or paid the fare. He finally, after having been detained for two hours, paid the fare under protest and brought his action for assault and battery and false imprisonment. The holding of the court is thus stated in the head-note: "If it is the custom of carriers by a steamboat to collect the passage tickets as the passengers are leaving the boat and a passenger attempts to land without a ticket, alleging that he has lost it, the carriers have the right to detain him a reasonable time, to inquire on the spot into the circumstances of the case.” “If carriers by steamboat require passengers to buy tickets before going on board and to deliver them up on landing, the loss of a ticket by a passenger falls on him and not on the carriers, and it is his

duty on landing to pay the amount of the fare.”

Precisely what the obligation of a carrier of cattle is, has not been very firmly settled in this country. The question was discussed at length in Rexford v. Smith, 13 Am. Rep. 42 (52 N. H. 355), and in the note to that case wherein the authorities are collated.

The majority of the cases hold the carrier liable to the strict rule of the common law as to common

In Mr. Freeman's very excellent work on Co-tenancy and Partition (§ 74), this subject is thoroughly discussed. His conclusion is, that "there seems but little doubt that where the marital rights of the husband in the wife's property remain as at common law, they are subject to seizure and forced sale under execution, and that the purchaser at such sale will acquire an interest in the estate sold, by virtue of which he will succeed to all the rights and privileges which the husband had by law in the prop-carriers, for all injuries not occasioned by the pecuerty sold." In Indiana, however, the question was considered at great length and the opposite conclusion reached. Chandler v. Cheney, 37 Ind. 408. In that case it was said: "We are of the opinion that, from the peculiar nature of this estate and from the legal relations of the parties, there must be unity of estate, unity of possession, unity of control, and unity in conveying or incumbering it; and it necessarily and logically results that it cannot be sold upon execution for the separate debts of either the husband or of the wife." The Pennsylvania

Clark v.

liar nature or propensity of the animals.
Rochester, etc., R. R. Co., 14 N. Y. 570; Smith v.
N. Y. C. R. R. Co., 29 Barb. 135; Kimball v. Rut-
land, etc., R. R. Co., 26 Vt. 242. Other cases hold
that the strict liability attaches only as to the suf-
ficiency of the vehicles, and the proper making up
and running of the train. Michigan Southern R. R.
Co. v. McDonough, 4 Am. Rep. 466 (21 Mich. 165).
The most recently reported case on the subject is
Evans v. Fitchburgh R. R. Co., 111 Mass. 142, wherein
the rule first stated is followed.


MASSACHUSETTS furnishes the world with a

great many sensations. It is said that women are generally better than men, but that a bad woman is worse than a bad man. So, having been taught

that the descendants of the Puritans are a trifle purer than the other inhabitants of this country, we must not be surprised to learn that when a Puritan lapses from grace he falls lower than a common mortal. It would seem from the two most notorious re

cent murders in Massachusetts, that if a citizen of that commonwealth contemplates the commission of

a homicide, he is not content to do the deed in an ordinary fashion, but proceeds to invest it with a strange horror and to stamp it with an atrocity that find no parallel in any of the less-favored portions of our republic. We refer to the murders of the Curran boy by the Pomeroy boy, and the Young girl by

the man Piper.

Wherever a murder is committed in any community, the public go through two phases of sentiment; in the first place they want to hang somebody, it doesn't make much difference whom, and in the second place they want the accused pardoned or his sentence commuted. Then, sometimes, comes a third phase, which only occurs in case some one else is subsequently murdered; in which case they want the person accused of the first offense hanged at all hazards. Massachusetts has gone through all three of these phases of feeling in regard to the boy Pomeroy. At first there was a general howl against him, as if he were simply a wild beast to be exterminated as a matter of course. The newspapers, as usual, led the chase. Under this excitement the boy was tried, convicted and sentenced. Then came a revulsion. Sober and fair-minded men began to reflect on the strangeness of the crime and the utter lack of motive, and diffidently to suggest the query whether the boy might not be mentally irresponsi

ble. The plea of insanity, set up and scouted at the trial, began to receive a little attention. The jury, not being so wild as the rest of the community, had recommended him to mercy. Men of the standing of ex-judges Foster and Bigelow, Oliver Wendell Holmes, and Rev. Mr. Murray, united in an appeal for commutation of sentence. Counter-petitions, it is true, were presented, but it was generally supposed that the counsel would lean to the side of mercy; when the new, and still more awful, murder of the little Young girl filled the community with fresh horror. The tone of public opinion about Pomeroy suddenly changed. An almost universal demand for an immediate and unmodified execution of his sentence goes forth. The Rev. Mr. Pentecost, pastor of the congregation worshipping in the church, in the belfry and by the sexton of which it is supposed the Young child was killed, is so impressed by the enormity of the offense, that he has since

preached two sermons in support of the dogma of total depravity. (The good man may be right, but, we think, if we were a member of his congregation, we should sever our connection, and seek a church where the sexton did not indulge in such excesses, and where the clergyman did not admit that he himself was as bad as Mr. Pentecost's sexton). Boston is aflame with virtuous indignation and excitement, as well it might be; but the first thing thought of is, not to prosecute Piper and judge his case by its own merits, and to persevere in judging Pomeroy's case by its own merits, but to hang Pomeroy without any reference to the petitions or his claims for mercy. Make sure of one victim; hang one, anyhow; this is the cry. There is a strong probability that Pomeroy will now be hanged, and if he is, it will not be for his own crime but for the crime of another. The

good people will not be defied. Some years ago a

convicted murderer in New York city remarked that "hanging is played out in New York." The remark hanged him.

This is what we call vindictive justice. It is a dangerous state for a community to fall into. It is just as bad for the public to hang a man from such motives, as it is for a father to flog a child when he is angry. The punishment does the child no good, Such punishment is and brutalizes the parent. almost as bad as the crime for which it is inflicted. We have no sympathy with Pomeroy; we have no knowledge of his offense nor of his mental condition; but we protest against hanging him simply because Piper has killed the Young child. If Pomeroy is mentally and morally responsible for his act, he ought to be executed under the law without any reference to Piper's case; if not, he ought not to suffer merely because another man has broken the law. Such a spectacle would be shocking and indecent. But suppose our spasmodic Massachusetts neighbors should hang him because of the necessity of the example and because of this new crime; and suppose Piper should afterward be put on trial and should be acquitted, for any reason; wouldn't the citizens of the good old Bay State feel rather flat? Isn't it more seemly and in accordance with fair play to judge each case independently on its own merits, and to administer justice calmly and in cold blood, and not let passion and prejudice sway us? It is because men let their passions overcome their reason and judgment that they commit such crimes as these two child-murders. Now, to see a whole community swayed by the same passions and anxious to wreak revenge under the sacred name of justice, is a humiliating spectacle indeed. We think we have read some pretty severe comments in Massachusetts newspapers, in past years, on the proceedings of the San Francisco vigilance committees comments in which we heartily concurred. But it is the vigilance committee spirit that now animates

the persons who are crying out for Pomeroy's blood. The Californians had some excuse for their conduct. They had the excuse of men in a new country, where the administration of justice was precarious and feeble, with their lives in their hands. In Massachusetts there is no such excuse. The community is old, laws are firmly fixed and rigidly administered, and the officers of justice are capable of exercising a pure and unbiased judgment. They should be left to do it unawed by popular clamor. The people will submit to it when passion has had its day. We passed through a scene somewhat resembling this in the case of Stokes for the murder of Fisk. The community were in a perfect fever lest the Court of Appeals should grant Stokes a new trial. The newspapers threatened all sorts of things against the court if it should do it. Nearly every lawyer in the State felt that he ought to have a new trial. The court granted one, and the people submitted like lambs. The result showed every reasonable man that Stokes did not deserve death, and that to have hanged him would have been murder under the forms of law. Our advice to our eastern brethren is, let the council pass on Pomeroy's petition just as the case stood before Piper killed the Young girl. That will be right, but to urge Pomeroy's death because of this later occurrence, and on the mere ground of policy, would be monstrous.


were criminal and shameful. The newly-wedded
pair were so absorbed in their own happiness that
they took no notice of these weekly assaults for a
considerable time. Perhaps Catherine did not know
they were intended for her, for the priest always
referred to her by her maiden name. But at length
his reverence went a step too far, and they awoke to
a sense of their wrongs. He predicted that they
would probably soon be coming to him with their
bastards to be christened. This was more than the
wedded folk could endure, and they commenced an
action for slander against the priest, laying their
damages at two thousand dollars. The defendant
pleaded that "the words in question were spoken
by virtue of his authority as parish priest and
spiritual director of the plaintiff; that he had full
spiritual and ecclesiastical jurisdiction over Fanning
and his wife, to disapprove, condemn, and censure
them, privately and publicly, for any violation of
the teachings, doctrines, laws, rules and discipline
of the church; and that he had the full ecclesiasti-
cal and spiritual guidance, care, direction and teach-
ing of them. The defendant alleged further, that
the plaintiff and his wife had violated the doctrines,
laws, rules, teachings and usages of the Roman
Catholic church by being married outside of the
church, and by some person other than a regularly
ordained priest of the church, to the great scandal
and injury of the members of the parish and church."
It was urged upon the trial that if the Fannings had
not relished the personality of the defendant's re-

withdrawing from the church. On the other hand
it was insisted that they had as good a right there
as the defendant, and that they were not to be in-
sulted or molested in this public manner.
It was
said that although, perhaps, within the sphere of
his powers as a priest to insist that, as marriage is a
sacrament by the rules of his church, the marriage
of Catholics must be solemnized by an ordained
priest of that church, and that a disobedience of
this regulation subjected the offenders to depriva-
tion of their religious privileges; yet the defendant
was not warranted in holding up these parties to
public shame and contempt Sunday after Sunday,
from his pulpit, and that in doing so he was guilty
of slander. The strangest part of this extraordinary
affair is that the jury disagreed, standing, it is said,
ten for the plaintiff and two for the defendant.

WE WE have elsewhere remarked upon the extremely sensational method, in vogue among the citi-marks, they could have emancipated themselves by zens of Massachusetts, for helping their fellow-beings out of the world. We have now to chronicle a case, arising in the same State, from which it would practically appear that such of the inhabitants as are fortunate enough to survive are not permitted to contract marriage unless they procure the sanction of a parson. We shall expect next to be informed that persons proposing to make their first appearance on this planet, in the State of Massachusetts, will not be suffered to do so in the manner which has, for so many years, obtained in other countries. The case to which we refer is this: Mr. Robert Fanning and Miss Catherine Murphy contracted marriage at Chelsea, in that State, in the year 1873, the contract being witnessed and approved by a justice of the peace. This made a valid marriage according to the laws of the commonwealth. But Robert and Catherine were in the habit of attending a Roman Catholic church in Chelsea, of which Rev. James McGlew is pastor, and when the man of God learned that his parishioners had preferred the services of the magistrate to those of his reverence, he waxed wroth. From that time forth the Rev. James indulged in "personal preaching." Every Sunday he denounced the miserable pair from his pulpit, intimating, in good set phrase, that their relations

If any man or any class of men, in a community, can possess themselves of a monopoly of almost any thing, their fortune is made. Just think what an excellent thing it would be for the lawyers if they could acquire the monopoly of witnessing wills, and could charge a reasonable fee for this item of service. The doctors and the monthly nurses have a practical monopoly of witnessing births, and how they rule over us! i. e., the married portion of us.

Now if the clergy could only maintain a monopoly of witnessing marriages and pronouncing them legal, the whole community would at once become their slaves. We cannot conceive of any other point in which the priesthood could obtain so tremendous a hold upon the public. This privilege would be the most potent weapon of priestcraft. Men can get along very well in the world without having their sins forgiven; but when they want to be married they are bound to be, and will make any concession to accomplish it. We are not speaking of this in any sectarian spirit. It is just as applicable to the Protestant as to the Catholic clergy. That any private man, clergyman or layman, should possess the power of preventing the marital contract, is simply unendurable.

We have, in this State, recognized the dangerous power of the clergy over persons about to be married or about to die. We have forbidden a devise or bequest of property to any religious or charitable use, unless made more than sixty days before the testator's death, and have declared it to be inoperative to the extent of more than one-quarter of the testator's property, if he leave a wife or children; and we have pronounced marriage a civil contract. We wonder that Massachusetts, or any other State, tolerates the antiquated tradition among any portion of its citizens that marriage is necessarily a religious sacrament. In a free country there is no consistency or safety in such an idea.

It is doubtless important that churches should be sustained and that the clergy should be supported. But it is not half so important that the clergy should have fees for marrying people, as that people should get married. The Rev. Mr. McGlew's theory might defeat itself in the long run, for if his parishioners should rebel against his doctrine, he would find himself preaching to a beggarly account of empty pews. Brides would cease to blush and bridegrooms to fidget under his ghostly offices at the altar, and the font would become a stranger to the infantine wail. The reverend gentleman is short-sighted. He would have done better to ignore the offense of Robert and Catherine, and to have made his account good in the baptismal fees. He will find that his parishioners, sooner or later, will secede from his authority, and if he makes marriage difficult and expensive, they will go where it is cheap and easy.

But, seriously, we regard the priest's conduct as a very grave offense against our laws and as a shameful breach of decency; and we regard the conduct of the two obstinate jurors as a piece of sheer stupidity or something worse. We recollect some years ago that a merchant in a Massachusetts city was subjected to a criminal prosecution for having a piece of nude statuary in his shop window for sale. It should seem, that in a community so prudishly sensitive as that to an unintentional breach of morals, a jury ought not to have hesitated to extract a few

marriage fees from this clerical slanderer's purse for the benefit of the law-abiding citizens whom he reviled. We hope Robert and Catherine will not give it up so, but will try again, and teach Father McGlew that if he is not himself inclined to marriage, he must not, dog-in-the-manger-like, stand in the way of those who are.




LIMITATIONS ON IMPOSITION OF LOCAL TAXATION. ECTION 26. Equality in the burden of taxation. The first of the maxims of Adam Smith on the subject of taxation is, "The subjects of every State ought to contribute to the support of the government, as nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenues they enjoy under the protection of the State. In the observation or neglect of this maxim, consists what is called the equality or inequality of taxation.(1) Absolute equality is not contemplated by these writers; it is to be 'as near as possible;" and the courts, while they have regarded any attempt to practice absolute equality as Utopian, have at the same time recognized the principle stated by these writers, and have endeavored to enforce a practical equality. (2) It is not in the power of the legislature, under guise of taxation, to give the property of A to B, to impose the whole burden of a tax for the State upon one person, or upon one county. Such absolute, arbitrary powers have no place in a government regulated by law.


In local taxation, there must be some benefit to the the State; if it be for a town or county it must be people of the locality, not common to all the people of for a purpose common to the people of the town or county, and of peculiar benefit to them. The limits of this principle will be examined in this chapter.

§ 27. Nature of subdivisions of a State, and of the tax imposed on them. The subdivision of the State into counties, cities and towns is a question of policy, to be determined by the legislature. These municipal corporations, which exist only for public purposes, may be altered, modified or abolished at pleasure, as they are but parts of the machinery employed to carry on the affairs of State, over which and their rights and effects the State may exercise a general superintendence and control; in their franchises they have no vested rights. (3) They are local governments; and many of the duties which would otherwise devolve on the State are performed by these local governments, such as the making of highways, bridges, the erection of school-houses, and defraying the expenses of conducting schools, erection of court-houses and jails, the administration of the local government, construction of sewers and water-works; these matters it is primarily the duty of the State to provide for; they are for a public or governmental purpose; but the counties, towns or cities receive a benefit from these things beyond that enjoyed by the people of the State gener

From advanced sheets of a treatise on "Taxation," by the Hon. W. H. Burroughs, of Norfolk.

(1) Smith's Wealth of Nations, 2 Mill's Pol. Economy, 37072; Walker's Science of Wealth, 335.

(2) Robertson, J., in Lexington v. McQuillan's Heirs, 9 Dana, 513; Rapallo, J., in Gorden v. Cornes, 47 N. Y. 612, 613. (3) People v. Mayor of Chicago, 51 Ill. 1"; People v. Flagg, Church, J., 46 N. Y. 405.

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