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filed for him, some of them have (or at least it is said they have, but we happen to know that the order in one of the departments was made by one judge only). At the same time the judges also recognize the other series by furnishing to its editors their own cases and points and, what is more to the purpose, by citing their reports, a compliment we believe they have not yet paid to the "official" reporter, even in the First Department.

The fact is that the circular was conceived and issued in the interests of the "Council. " That body wants something to do-it wants to control this matter of reporting itself, subsidy, subscription, guarantee and all. It expresses the hope that the Bench and Bar may so co-operate with the Council as will enable it to inaugurate


some of the reforms which are desired and are believed to be attainable." Mr. Hun has undertaken to "so co-operate," and a good word for him is a good word for the "Council," and its "scheme." We are not making loose assertions, but are very exactly informed that such is the fact. According to the "scheme" the reporter appointed by the judges is to be one of the reporters under the "Council." If the Council" can 66 secure the appointment of one willing to join with them there may be some hope for the inauguration of their system. Propositions looking to such a coalition were suggested to one of the editors of the New York Supreme Court Reports, by one of the "Council," and were promptly rejected. Mr. Hun, it seems, was more willing.

We would not by any means be understood as charging the majority of the members of the "Council" with a participation in, or knowledge of, these schemes, or with any attempt to palter or to subserve a selfish purpose by the circular. They have mainly permitted their good nature and desire to "accommodate" to be taken advantage of. The action of the "Council" was brought about by men who have, as they say, "an axe to grind." Most active among them is Mr. Lewis L. Delafield, a member of the "Council," a young man whom the parliamentary rule that a mover of a committee shall be made its chairman, thrust into some little prominence in this matter of reporting, who had the honor of originating the "Scheme of Reporting," and the "Council of Law Reporting," and who has ever since been, like Esop's fly upon the chariot axle, pluming himself on the dust he has kicked up. Angered that the New York Supreme Court Reports forestalled the action of his committee; wrathy by reason of the ridicule poured upon his "Scheme of Reporting," and chagrined at its failure, it is not surprising that he should bend his energies against those that undid him. It is to

him that the Bar of the State are mainly indebted for the advice of the "Council." It is not the first time that disappointed ambition, resentment for the defeated hopes and desire for revenge have assumed the appearance of public spirit.

The United States Supreme Court seems to have adopted the plan of amending its rules as occasion may require. Once in a week or two, we notice that such and such a rule has been amended in such and such a way. The latest amendment is to Rule 26, to which a paragraph (7) is added in the following language: If, after a cause has been passed under circumstances which do not place it at the foot of the docket, the parties shall desire to have it heard, they may file with the clerk their joint request to that effect, and the cause shall then, by him,

be reinstated for call, ten cases after that under argument or next to be called at the end of the day the request is filed. If the parties will not unite in such a request, either may move to take up the cause, and it shall then be assigned to such place upon the docket as the court may direct. No stipulation to pass a cause without placing it at the foot of the docket will be recognized as binding upon the court. A cause can only be passed upon application made and leave granted in open court.

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The United State Supreme Court has decided the celebrated "Franc case involving a construction of the act of 1873, which defined the value of a foreign coin to be "that of the pure metal of such coin of the standard value." Under this statute a French franc is declared to be worth nineteen cents and three mills, that being the value as ascertained by the superintendent of the mint, and published by the treasury. This case arose in ascertaining the value of the franc in invoices of foreign goods; and the decision of the question is of more importance than a casual glance would reveal. The decision will place thousands of dollars in the government coffers. The fact that such statutes and such decisions have to be made in the present age is a reproach to the nations whose citizens are intimately connected by the ties of commerce, but are perplexed by the failure to procure a uniform international system of measures and moneys.

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she having been declared insane by the commissioners, the court had no alternative but to commit her to the asylum. The case was, however, postponed. Some defects are pointed out in the new lunacy law; and under section 30 it is contended that criminals will set up the plea of insanity, and procure the appointment of a commission. If found to be insane, by the commissioners, at the date of the crime, they will have to be sent to the asylum whether insane or not at the date of the commissioners' report. They may then be discharged in a few days from the asylum and thus escape any further punishment. The effect of the law is to transfer the question of guilt in such cases from the jury to a commission. But it is by no means certain but that a commission is as well prepared to decide the issue as an ordinary jury.

If one quality more than another distinguishes Dr. Kenealy it is that of persistency. This was shown in his conduct of the Tichborne case, in his subsequent attacks on the judges, and in his tenacious hold on his position as a barrister. And now we are served with another dish of the same quality, in the learned Doctor's endeavors to sustain himself on the surface of English society. And the fact seems to be that he is upborne by much genuine sympathy. One English newspaper says, that "there is a strong feeling among members of the bar that the special offense for which he has been cut off from the exercise of his profession" has been too severely dealt with. And it is doubted whether his offense came within the jurisdiction of the benchers. It can hardly be expected, however, that Dr. Kenealy will be restored to his position as member of the bar and Queen's counsel. And it is said that he contemplates emigrating to our shores in the hope of meeting a more lenient profession and more just judges.

The New York Commission of Appeals has decided an important question relative to the duties of members of the common council of cities. The case is Smith v. City of Albany, and it appears that at a meeting of the common council a resolution was adopted to appropriate $2,500 for the purpose of defraying expenses of celebrating the fourth of July. A committee was appointed and under its appointment plaintiff, who was a member of the common council, furnished horses and carriages for the procession the value of the use of which was $139. It is now held that plaintiff cannot recover; upon the principle that an agent cannot bargain with himself. The members of the common council are agents of the city and cannot employ themselves to do the city's work. Hodges v. City of Buffalo, 2 Denio, 110, and Collier v. Munn, 41 N. Y. 143, are referred to with approval in the opinion. See also Laws of 1843, p. 36.


In Bivins v. Jarnagin, the Supreme Court of Tennessee held, that a deed of land made in consideration of past illicit and adulterous intercourse would not, ordinarily, be set aside if the grantee was in possession. But where it was shown that the deed was the result of undue influence exercised by the grantee over the grantor the deed would be set aside. The rule on this subject is as follows: An agreement in consideration of future illicit cohabitation or intercourse between the parties is void; but an agreement under seal in consideration of past illicit cohabitation or intercourse is valid. Chitty on Contracts, 11 Am. ed. 979. In Gibson v. Dickie, 3 M. & S. 463, it appeared that plaintiff had cohabited with defendant and that they agreed to separate on condition that defendant would allow plaintiff £30 per annum, during her life. She was to continue single and not cohabit with any one else. This agreement was held valid.

An illustration of the important question of what constitutes a partnership may be found in England v. England, decided recently in the Supreme Court of Tennessee. It appeared that the owner of a still and tubs hired the use of them to another for a part of the profits of the business in which they were to be used. The court held that the owner was not a partner in the business. The following example was brought forward in the opinion of the court: "It is to-day of frequent, almost universal habit for landowners to rent their farms for certain proportions of crops. In all these instances the amount to be received depends upon rises and falls, with the amount of the profits or business. Still the intention of the parties to such contracts never contemplates a partnership. A contrary rule would make four-fifths of the real estate owners partners of their tenants without either having even entertained such a purpose." This case is more in accordance with the English law of partnership. The prevailing American rule is, that sharing in the profits makes one a partner; and the only exception recognized is in the case of employees or agents of the business who take a share of the profits for their compensation.

The English courts adhere very strictly to the old rule that a master is not liable to a servant for injuries caused by a fellow-servant. In Havell v. Landore Siemens Steel Co., 31 L. T. N. S. 433 it was held that where a workman in a colliery was killed by an explosion occasioned by the negligence of the manager of the colliery appointed by the owners, the manager and the deceased were fellowworkmen, and the owners were not liable. And the rule was not altered by the fact that the owners were compelled to appoint a manager by statute. Wilson v. Merry, L. Rep. 1 Sc. and D. App. 326, was principally relied on.


A recent decision in Maine - Robinson v. Adams, reported in Redfield's American Cases on Wills, p. 367 has brought into view the relations of law and spiritualism. The question considered in that case was whether a will executed under the influence of spiritualistic communications is void on account of "undue influence." This also involved the further and deeper question whether one so influenced was of sound mind in contemplation of law. The grounds, chiefly relied upon to show unsoundness of mind or undue influence, were the belief of the testatrix in communications with the spirit of her deceased husband, and her suspicions and belief thereby aroused, that her son-in-law, the contestant, was exposed to the control of evil spirits. The judge did not rule that a belief in spiritual communications was, itself, an insane delusion, but he ruled that it was for the jury to consider how far such a belief showed delusion, and whether that belief was itself an insane delusion. This ruling was sustained by the Supreme Judicial Court on appeal. The court was of the opinion that the question could not be dealt with theologically, morally or scientifically, but, that it must be considered legally, as bearing on the single point of insanity or insane delusion. "What our individual and collective opinions as to facts, truth, possibilities or evidence, or claims of this so-called spiritualism may be, has nothing to do with the questions before us. It is only as to the proved effect of this belief on another person's mind that is before us." The court also say that "there is no doubt that the law allows any person to seek advice, suggestions, and opinions from others where no fraud or deception is practiced. The laws does not limit the range. If a pious man, of sound mind, should seek advice by prayer, and should believe that he had a direct answer, and should regard it not as dictation, but advice entitled to consideration, would any one say that his will would be set aside as made under undue influence? * * * In this case, the widow, it is assumed, thought she had received letters, not from an absent husband, but from one who had gone beyond this world to another, and in them some suggestions as to the disposition of her property. She did not yield implicitly and blindly to these suggestions, but regarded them as she would have regarded such letters if they had been written during life, as friendly suggestions, which had some effect on her mind, but not to the point of destroying her own free will and deliberate judge


Judge Redfield, in an elaborate note to this case, takes a different view of the matter under discussion and lays down the following rule: "All opinions which are incredible in themselves, because contrary to the general course of human experience, and which, nevertheless, are entertained and acted upon by any one in matters of importance, and in a man

ner which the law will not countenance, where there is no evidence of their correctness, and no argument will dispossess such persons of them, must be regarded as insane delusions." Redfield would thus force upon the courts the decision of the truth or falsity of spiritualism, and render tribunals of justice, to that extent, tribunals of science. In other words, Redfield would have the courts rule as a matter of law that spiritualistic communications are not facts, but delusions, and that a person acting under the influence of non-existent things, is unduly influenced, and is of unsound mind. As the discussion now stands, we deem it unnecessary to say that the Supreme Court of Maine has taken a moderate and judicial view of the case and that Robinson v. Adams, is likely to form a precedent.

In this connection it may be well to mention a circumstance of which we were lately informed. A western justice of the peace who believed in the reality of spiritualism, and who was in the habit of holding communications with the departed spirits of eminent jurists of England and America, was cited by counsel on the trial of a cause to a case in an old volume of reports. The justice immediately "felt the influence" as he expressed it and seizing a pencil traced a few lines on a sheet of paper. He then announced that he had received a communication from the judges who had decided the case cited, and that they had changed their mind, and now overruled their decision. The justice then declared that the case cited was no longer good law, and overruled the position of the counsel. Whether this be a real or hypothetical circumstance, it illustrates the difficulties which may arise in dealing with modern spiritualism, in its relations to law.

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EXAMINATION IN CRIMINAL CASES.* Up to the time of the enactment of the Stat. 1 & 2, Philip & Mary, ch. 13, A. D. 1554, there was no provision for the examination of the prisoner in England, but such a provision remained unchanged in that Statute until 1826, when it was extended so as to include persons charged with "misdemeanor " or suspicion thereof" in addition to felony. At present the matter in England is governed by Stat. 11 & 12 Vict., ch. 42, which relates to all indictable offenses. Formerly the maxim nemo tenetur prodere seipsum (no one is bound to criminate himself) prevailed in its full strictness (1 Chit. Cr. L. 85) but, speaking of this maxim, Judge Selden, in People v. McMahon, 15 N. Y. 384, says: "It may well be doubted whether that celebrated maxim has itself any other substantial foundation, than the uncertainty and doubt which must ever attend all extorted confessions. If deserving of the commendation it has received, it must, I think, be based upon the idea

Previous articles on the same subject by the same writer may be found in vol. IX, pp. 17, 133.

of protection to the innocent, and not that of mercy to the guilty," for as we shall see, the law allows confessions when voluntarily made, free from any improper influence to be used in evidence against the accused on his trial. The main difficulty has been to determine, in some cases, as to whether the confession was entirely voluntary. This question was discussed at considerable length, in People v. Hendrickson, 10 N. Y. 13; People v. McMahon, 15 id. 384; and People v. Teachout, 41 id. 7. In the case of People v. McMahon, the prisoner was first arrested by a constable suspected of killing his wife, and afterward sworn before the coroner on the inquest. His statements under oath, given in evidence on his trial were held to be incompetent. Our Statute is as follows: "At the commencement of the examination the prisoner shall be informed by the magistrate that he is at liberty to refuse to answer any question that may be put to him." 2 R. S. 708, § 15. The English Statute, although it allows the prisoner to make a statement before the magistrate, if he desire to do so, contains greater precautions against any improper influence which might otherwise operate on his mind, and thus induce him to make untrue statements. After the examination of the witnesses on the part of the prosecution has been completed, the English magistrate says to the prisoner, in the language of the Statute, as follows: "Having heard the evidence, do you wish to say any thing in answer to the charge? You are not obliged to say any thing unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence against you upon your trial." Also for the purpose of preventing the defendant being misled by any promises or threats which may have previously been holden out to him y the prosecutor, constable or others to induce him to make any confession, it is provided by the same section "that the magistrate before such accused person shall make any statement, shall state to him and give him clearly to understand that he has nothing to hope from any promise of favor, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him upon his trial, notwithstanding such promise or threat." It will be observed that the English Statute provides for a statement only of the prisoner, while ours provides for his interrogation, and no restriction is placed upon the magistrate in regard to the questions which may be put. We confess to a preference for the English Statute, as it plainly shows greater strictness in the protection of the rights of the accused, and tends, in a greater degree, to elicit the truth from him concerning the charge, and because it is not uncommon to witness magistrates under our statute cross-examin

ing prisoners with all the zeal of a professional advocate, and with all the prejudice of an overheated partisan, thus defeating, really the humane design of the statute which is to afford a privilege to the accused to explain the circumstances appearing in the testimony against him. For the examination has been considered rather as a privilege in favor of the party accused, afforded for the benefit of an innocent man who, perhaps may, on examination, clear himself from suspicion, and immediately regain his freedom, than as any additional peril. 1 Chit. Cr. L. 83.

How often is the prisoner ignorant of his rights, unattended by counsel, induced to believe by the imperious manner of the magistrate, notwithstanding the preliminary caution required by the statute, that he is obliged to answer all the questions of a rigid cross-examination? The benign spirit of the law is that the guilt of an offender is not to be wrung out of himself, yet the manner in which the examination of offenders is usually conducted by magistrates loses the character of an impartial investigation, and becomes in the end, a torturing cross-examination seizing upon the slightest circumstance of real or apparent contradiction to assume the prisoner guilty. Instead of his being informed, as the fact is, that it is furnished to him as a shield, and is not to be used against him as a sword, he is, by a loose course of practice, if no other motive be imputable, led to believe that it is one of the ordinary proceedings against him, having in view the establishment of his guilt. He is accordingly examined by a series of searching questions, oftentimes proceeding upon the assumption of his guilt, and is driven to the alternative of equivocating as to facts, or of denying circumstances plainly true, or of (which is occasionally his resort) declining to answer (Code of Cr. Prod., p. 92) — which resort is seized upon as a sort of confession of guilt.

No improper influence either by threat, promise, or misrepresentation, ought to be employed, for however slight the inducement may have been, a confession so received, cannot be received in evidence on account of the uncertainty and doubt whether it was not made rather from a motive of fear or interest than from a sense of guilt. When a prisoner is willing to make a statement it is the duty of the magistrate to receive it, but before doing so he should feel reasonably certain that he has removed any impression which the prisoner may have that the statement may be used for his own benefit. Reg. v. Arnold, 8 C. & P. 621.

The cases are quite numerous where confessions have been rejected on account of improper influences having been exerted over the prisoner. Such confessions are not rejected from a regard to public faith, but because when forced from the mind by the flattery of hope or by the torture of fear, they come in such a quest'onable shape that no credit

should be given to them by a jury. 2 Leach, 263, 264. The human mind under the pressure of circumstances is easily seduced, and is liable, in the alarm of danger, to acknowledge indiscriminately, a false hood or a truth, as different agitations may prevail. A confession, therefore, whether made upon an official examination, or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by the impression of fear, however slightly the emotions may be implanted, is not admissible. 2 Hawk, ch. 46, § 36. When a magistrate had said to a prisoner: "If you do not tell the truth I will commit you." It was held to be an improper threat sufficient to exclude the confession. The practice by police officers of interrogating prisoners in their custody, is strongly reprobated by most of the English Judges, and in one case where it appeared that the constable was in the practice of interrogating prisoners in his custody, Patterson, J., threatened to cause him to be dismissed from his office. The wisest course for policemen and others to adopt, is to say nothing to the prisoner either by way of advice, caution or interrogation. Roscoe Cr. Ev. 47. The above is just as applicable to a magistrate except so far as he is allowed to interrogate the prisoner under the statute (see § 15, supra) during a preliminary examination, which certainly does not mean the privilege of a cross-examination.

Such an interrogation should never be carried to such an extent as to plainly defeat the benign spirit of the statute, which is simply to allow the prisoner the privilege of explanation, and not a trap to catch the ignorant and unwary. If the magistrate examine the prisoner rather as & witness than a charged offender, the evidence given by him, although no inducement was held out to him, cannot be read against him. 1 Chit. Cr. L. 83.

A recent enactment of the legislature (Laws 1869, chap. 678.) provides in substance that the accused may, at his own request, but not otherwise, be sworn in his own behalf, in any criminal proceeding, etc. This statute does not, however, relieve the magistrate from the responsibility of discharging his duties as enjoined in section 15, above stated.


With great deference to the wisdom of our legislature, we are compelled to believe, that such a provision, so far as it has been practiced in preliminary examinations, is not entirely satisfactory. prisoner is often hurried before the magistrate without the proper opportunity to procure counsel, and it oftener happens that he has no means to procure any, and in his anxiety to regain his liberty offers himself as a witness, and often finds out when too late under the searching crossexamination of a skillful lawyer conducting the prosecution, that he has made a great mistake.

But when a prisoner is tried npon an indictment, if he has no counsel or no means to procure any, the


Court assigns competent counsel to protect his rights and conduct his defense. So that we believe this provision of the statute, so far as it is applicable to preliminary examinations before magistrates, is sure to result in more evil than good. It does not even provide that the magistrate shall caution him as to the use which may be made of his statements while under oath on perhaps his future trial. humanity of the common law restrains a resort to torture or any coercive means to induce a confession, but the reason why it excludes a confession so obtained, is not that it was so obtained, but because no reliance can be placed on it. That the party is quite as likely under such circumstances, to state what is false as what is true. A prisoner accused, it may be of murder, is now in danger of having a confession wrung from him by the torture of a severe cross-examination, which may be used on his trial afterward to procure his conviction. It is our sincere belief that this law, so far as it applies to examinations, should be speedily modified or repealed.

The law allowing prisoners to be sworn in their own behalf is but an experiment, and has not been tried long enough to test its merits, but we think it may be safely asserted that it is not entirely satisfactory.

In civil actions where opposite parties may be sworn, the truth is more likely to be elicited.



The county courts offer valuable facilities for enforcing punctuality on railway companies. Several decisions have been given in actions brought by passengers, and all, with one exception, have been adverse to the companies. In the most recent case, the Great Western Railway Company, who were defendants, relied upon a notice prefixed to their time-tables that they would not be accountable for any loss, inconvenience, or injury arising from delay or detention, unless upon proof that it arose "in consequence of the willful misconduct of the company's servants." The plaintiff took a first-class ticket from Reading to Henley by the

train timed to arrive at Reading at 10.25 and to leave Reading at 10.30, to arrive at Twyford at 10.40 and to

leave Twyford at 10.45, and arrive at Henley at 11 A. M. The train arrived at Reading punctually at 10.25, but did not leave Reading till 10.39. On arriving at Twyford the plaintiff found that the train to Henley had just left, and there was no other train for an hour. He took a fly and got to Henley in half an hour. The delay at Reading was occasioned principally by the want of porters to put luggage into the train. The train was a very light one, the plaintiff being the only first-class passenger. The plaintiff, who is a solictor and treasurer of the County Court of Henley and other places, sued the defendants for 6s. 6d., the expense of a fly from Twyford to Henley. The plaintiff admitted that he was cognizant of the notice already quoted.

Upon these facts three questions arose: (1.) What was the contract between the company and the plain

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