NOTES.

IN his brief in Popham v. Cole, 66 N. Y. 69, where the question was of infringement of the trade-mark of a hog on lard, Mr. Wm. F. Shepard said: "The plaintiff's claim to his particular pig is thus futile. But he claims a monopoly of the entire pig market-wild and domestic, big and little-what his counsel calls the entire genus pig.' Because he has chosen to stamp on his tin packages of lard this fat, well-conditioned, domestic, old hog, the defendants are to be prohibited from stamping on theirs a rampant wild boar standing upon the world, and no one but the plaintiff can use the representation of any kind of a swine, wild or tame, boar, sow, or sucking shoat in any combination or position! They all belong to the genus pig,' consecrated to the plaintiff. Thus, if one man places the representation of a large pippin on his barrels of cider, no one else could place a crab-apple on his barrels! They both belong to the genus' apple. The hog is the source of the lard. The apples indicate cider. These things are common property. The plaintiff claims the pig without reference to any combination. He' goes the whole hog.' Fun carried the day.

The assault on a judge of the Supreme Court of the United States on Wednesday, with its tragic termination, and the recent disgraceful mobbing to which Mr. Justice Stephen was subjected at Liverpool. remind us of the remarkable exemption which our judges have hitherto enjoyed from the risks arising from the desire for revenge of disappointed suitors. With the exception of the rotten egg which was thrown at the late Vice-Chancellor Malins (and which he mildly remarked must have been intended for his brother Bacon), and the attempted assassination of the late Sir George Jessel by Dodwell in 1878, we do not recall any instance in recent years of an assault on any judge exercising civil jurisdiction. And even in earlier times the instances of attacks on judges are few. In 1616 Sir John Tyndal, one of the masters in Chancery,

was killed by a shot fired at him while entering his chambers at Lincoln's-inn by a man called Bertram,

against whom Sir John had given a decision. The assassin committed suicide before he could be punished A few years afterward a prisoner condemned for felony at the Salisbury Assizes threw a brick-bat at Chief Justice Richardson, which narrowly missed him. The offense in this case met with prompt punishment. An indictment was immediately prepared against the prisoner; his right hand was cut off and fixed to the gibbet on which he was himself immediately hanged in presence of the court. 2 Dyer, 188b. Considering the number of litigants who must every year be almost driven to desperation by the loss of their cases, and the severe censures which the judges have constantly to bestow on the conduct of individuals, the immunity of the bench from personal injury is remarkable, and can only be ascribed to the respect for, and confidence in, the administration of justice in this country which has happily (until recently) been universal. What will be the result upon this of the pre. posterous re-trial of the Maybrick case by the daily papers and public meetings remains to be seen, but it is to be observed that a great part of the clamor is directed personally against the judge who tried the case. -Solicitors' Journal.

A great deal of nonsense has been written about the Liverpool murder, but scarcely any thing exceeds the want of appreciation of the functions of a judge shown by the New York Herald. This journal has been very energetic in the interests of the convict, and this is the view a writer takes of the duty of a judge presiding at a criminal trial: "What is the trial by jury — what is the jury unless it is free? The duty of the judge is to explain the law. What has he to do with the facts, and why should he be allowed to express an opinion upon them? The law intends that the jury shall decide them without prejudice or trammel. Why then should prejudice or trammel come from the bench?" Conceive this-a summing up of the evidence is necessarily to prejudice or trammel! This evil is laid at the door of Sir A. Cockburn: "Under the present custom the court of the first instance is infallible. Surely it was never intended by the law that a court should be fallible as to rank, property, liberty, but infallible when dealing with life. Furthermore there has grown up a practice in capital cases of treating the jury as an echo of the bench. The late Lord Chief Justice Cockburn was responsible for much of this. Au orator-a master of phrases-with an intense luminous intellect and an unrivalled capacity for statement, the lord chief justice dealt with a jury as though its functions were clerical. His summing up was mandatory. The verdicts were judicial epilogues. When a judge with the master mind of Cockburn takes this view of his duty we may have elaborate, brilliant trials-scenes of fine forensic display; but not that homely, wholesome consideration of facts and rendering of the verdict contemplated in the institution of the trial by jury. The defect in the Maybrick case was the charge of Mr. Justice Stephen. No jury could have heard that charge and found the slightest doubt in favor of the prisoner. This is also a serious matter. The error does not lie in Justice Stephen, but in the system. The tendency to explain, eliminate, digest and color evidence, to reject and accept. to decide what is false and true, to dig out the motives of witnesses, to make acute forensic displays to lead the jury step by step to a judicial conclusionthis is the grave error that was committed in Liverpool." This is a splendid tribute to the capacity of Mr. Justice Stephen, but a very serious and unwarrantable reflection upon the independence and clearsightedness of the jury.-London Law Times.

The Albany Law Journal.

ALBANY, SEPTEMBER 28, 1889.

CURRENT TOPICS.

HE lawyers of the city of New York have awaked to a realization of the fact that there are some judicial offices of which they have not their share. They have taken a long pull, and a strong pull, and a pull all together, and have determined that they must have a more numerous representation on the bench of the Court of Appeals. They say, and say truly, that they furnish a majority of the appeals, and that these involve by far the largest amount at stake. They have not said, but might say just as truly, that they furnish most of the criminal business in that court. Until the recent increase in the salary of these judges New York city lawyers were not anxious for the office, nor so alive to the injustice of their having no larger representation. It is well known that the governor found difficulty in persuading any first-rate lawyer of the city to accept an appointment in Judge Rapallo's place. After all, geographical considerations are not very important in this matter. The desideratum is to get the best judges without regard to locality. In all times in the history of our State the country districts have furnished the most of these. Looking over the list of the most distinguished names among those judges, for the last forty years, we find that nearly all of them have come from the country. It may be said that this has been because the city has not had justice done her, and has not had her fair share. But we are inclined to believe that it has been because great judicial minds are the product of the quiet and leisure of country training and life rather than of city bustle, hurry and want of opportunity for reflection. So it has come to pass that the country has furnished Denio, Johnson, Comstock, Selden, Church, Folger, Allen, Grover, while the city has furnished only Rapallo. The city lawyers have accumulated money; the country lawyers have gained wisdom. Such is the natural and inevitable result of what the scientific people call the "environment." If the first named of these great judges had been reared in the city our books would not now shine with their learning and sense, but probably their place would have been supplied by other "ruralists." But why this sudden zeal on the part of the New York city bar? Have they any complaint to make of the way in which their business has been done and their causes have been decided? We hear of none. We may say that they may deem it fortunate, in certain great junctures, that the judges were country people, who dared to do right and declare the law in the face of the bitter animosity and unmerited aspersion of city lawyers, and even judges. Imagine a bench of Noah Davises in the Tweed case, or VOL. 40 No. 13.

in the Sharp case, bullied and overawed by O'Conors! But we do the city no injustice. Give her a fair representation on the bench -a representation not based upon population or the business contributed to the court, which would not be fair - but a geographical representation. Let her have one judge in each court, which is rather more than her proportion, considered in respect to judicial districts. We shall look with curiosity and interest to see whom she will name to succeed Judge Danforth, a man of rare learning, experience and dignity, and who was willing to give up a lucrative practice for the moderate salary which he has received during most of his term. Let us see some of the great lawyers of the city, earning from $25,000 to $100,000 a year, relinquishing the filling of their money-bags for a salary of $12,000 and the unintermitting drudgery of the bench. Fetch on your Carter, or Choate, or Parsons, or Andersons, or Man, or Butler, et id omne genus, but don't all speak at once! Furnishing men who are willing to take the place at twice what they can earn at the bar is one thing; furnishing men who are willing to take it at a large pecuniary sacrifice, and at the cost of comparative ease and independence, is quite

another.

Messrs. Maynard, Collin and Belknap, commissioners for the revision of the statutes, have prepared and submitted for public consideration and criticism a "Draft of proposed amendment to the Code of Civil Procedure, prescribing the practice in condemnation proceedings and for the sale of corporate real property." They say: "The commission have found that many of the statutes relating to corporations of a public or quasi public character, upon whom the right of eminent domain has been conferred, are incumbered with provisions regulating the manner in which the right shall be exercised and the proceedings for its enforcement. While these provisions are in the main analogous, yet in very few cases are they precisely alike. The result is much confusion and uncertainty in matters of practice, which not infrequently cause great expense and delay, if they do not wholly defeat the plain intent of the law. In a less degree the same observations are applicable to the proceedings for the sale of corporate real property. It appears to be the policy of the Legislature to require certain corporations to obtain the leave of the court in order to dispose of their real property. There does not seem to be any good reason why the practice in all such cases should not be uniform and be embodied in the Code, and the general statutes relieved of all provisions of this character." We have not time critically to examine the proposed bill. The scheme of a uniform practice in such cases seems reasonable and beneficial, but we have some doubt of the wisdom of injecting it into the Code. It may perhaps be said that the Code is already spoiled, and that a little addition like this can't possibly make it any worse. This is possible. The old lawyer, in Scott's novel, let his prentice son ex

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periment on the pauper cause of "Peebles v. Plainstaines, et per contra," because he knew he could not possibly hurt it. But ordinarily we should feel reluctant to see a code, or frame-work of practice, swelled and burdened by the insertion of matter which should be matter of rules of the court, flexible, easily changeable, and adapted to discretion. This is the true office of flexibility. Here are some seventeen pages proposed to be added to the Code of Civil Procedure, as the regulation of practice in a single particular. This is not codification, in our humble judgment. It is not the English idea, which, we must confess, seems an improvement upon the modern New York idea the Throop dropsy which has rendered the Field skeleton so cumbrous as to be nearly unmanageable.

The most reasonable and least sentimental argument against the penalty of death which we have seen in many years is in the Fortnightly Review for September, by B. Paul Neuman, entitled "The Case against Capital Punishment." The writer lays down the following "tests or marks of suitability to be applied to any particular punishment," namely: "(1) It should be capable of certainty in application; (2) It should be susceptible of graduation; (3) It should be revocable; (4) It should be of a reformatory character; (5) It should not shock the moral sense of the community; (6) It should not destroy sources of evidence; (7) It should be an efficient deterrent." He then proceeds to try capital punishment by these tests, and demonstrates that it fails in every particular. Less so in the first than in any other, for we believe that innocent men have been very rarely executed. But its irrevocability is perhaps a sufficient answer to this. Society has no right or if that is putting it too strongly it is impolitic for society to inflict a punishment for which it cannot make amends in case of mistake. We wrote our views on this subject a good many years ago in this journal, and have since seen no reason to change them, although we have seen reason to change our opinions on some other subjects. We thought then, and think now, that although society has the right to inflict capital punishment, it is impolitic to do so, for the reason that murder thus goes unpunished. There never was a time when there have been so many executions as in the last decade, and yet in the same States murders have increased. So difficult is it to inflict the extreme penalty that bad men have grown careless about it and good men have become impatient with it. The gallows, although busy, lags so far behind its duty, that orderly citizens have lost faith in it and disorderly citizens have taken the law into their own hands. Judge Lynch hangs more than the authorized executioner. Even if the law were capable of being easily enforced we should doubt its policy, for we do not believe it is an efficient deterrent. Men do not refrain from murder through fear of the gallows any more than through fear of hell. They take their chances. But when we con

sider how reluctant juries are to have the life of even a bad man charged to their account, and observe the slowness of our judicial procedure, we do not wonder that men grow contemptuous of the penalty. If for it were substituted imprisonment for life at hard labor in mines and on roads, beyond the power of pardon, without the possibility of release except by death, we should be disappointed if there were not more convictions and fewer murders. Such seems to be the result in several countries and States, if the essayist's statistics are correct. As for example: "Holland. Capital punishment abolished September, 1870 (as a matter of fact there has been no execution since 1860). The statistics of murder were as follows: 1861-9, 19 murders; 1871-9, 17 murders; and this notwithstanding an increase of population. Finland. There has been no execution since 1824. The judge of the Court of Appeal states: "The security of person and property has not been in the least diminished by the suspension of capital punishment. Murders are extremely rare.' Switzerland. In 1874 capital punishment was abolished by the Federal Council. In 1879 Cantons were allowed to choose for themselves, and two or three have elected to reinstate the death penalty. Belgium. No execution since 1863. In the ten years before 1863, 921 murders; in the ten years after 1863, 703 murders. Prussia. In decade 1869-78, 484 persons sentenced to death, only one execution (Hödel). Portugal. Capital punishment abolished. Roumania. Capital punishment abolished. Tuscany. No execution for fifty years. Russia. Capital punishment only retained for treason and military insubordination. America. Michigan, capital punishment abolished in 1847; Rhode Island, 1852; Wisconsin, 1853; Iowa, 1872; Maine, 1876. In Michigan the statistics show that since 1847 murders have decreased, relatively to the population, fifty-seven per cent. As to Wisconsin, Governor Washburne writes in 1873: 'It is twenty years since the abolition of capital punishment. No State can show greater freedom from homicidal crime. With a population representing almost every nationality, statistics show that crime instead of increasing with the growth of the State has actually diminished.' Of Iowa, Senator Jessup writes in 1876: 'Murder in the first degree has not increased, but has for four years decreased. Previous to the repeal of the old law there was one murder for every 800,000 people. For the four years since abolition there has been one in every 1,200,000. There is more lynch law where the gallows is retained.' This evidence might easily be multiplied, and, so far as I know, it all points in one direction." The greatest stickler for capital punishment, if candid, must admit that it is a failNothing but the wild beast longing for revenge, which exists in many of the mildest breasts, persuades men to continue it in vogue. We should like to see the experiment of abolition fairly tried for a few years, but there is no use in trying it with the pardoning power existing in its present plenitude, for the hope of pardon, even when

ure.

against reason, will still induce men to take their chances when revenge, greed or passion inspires them.

NOTES OF CASES.

N Moore v. Colt, Pennsylvania Supreme Court,

23, 1990, articles, of agre

for the sale of the good-will, etc., of an omnibus business for $150, contained a provision that the vendors "were not to engage in or use their influence in opposition to the vendee in the passenger, mail or express business in any manner or form. And each party is hereby held and fully bound in the sum of $300 for the faithful fulfillment of the above contract." The vendee completed his purchase. In a subsequent action by the vendee against the surviving vendor, alleging a breach of the above covenant, held that the above provision was a penalty and not a liquidation of damages, and therefore the vendee was entitled to prove his actual damages, and recover therefor, though they were in excess of $300. The court said: "If we interpret this contract by this language we have the case of a penalty. It is in almost the exact terms of the ordinary penalty of a bond. There is no agreement 'to forfeit,' which in Streeper v. Williams, 48 Penn. St. 450, was held to be the equivalent of the word pay,' and to be liquidated damages. In Cushing v. Drew, 97 Mass. 445, Cushing sold to Drew certain horses and wagons and the good-will of an express business in the town of W. for $650, and agreed in writing not to do any express business, or cause any to be done in that town so long as D. should do such business there, and in case he violated the agreement he was to pay D. $900. This was held to be liquidated damages. Cushing stipulated to do a single thing, viz., to abstain from interfering with the business of D., and if he failed in this he was to pay Drew the sum of $900. difficult to see how any doubt could have arisen in

that case.

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It is

- or

The one in hand is not clear. The parties have merely bound themselves in the sum of $300 for the faithful fulfillment of their contract. * The nature of this stipulation, whether a penalty or liquidated damages, does not depend upon which party violates the agreement. Had the breach been by Colt, and he had refused to pay the $150, what would have been the measure of damages in a suit against him by Moore? Would it have been the sum he agreed to pay - $150 with interestwould it have been the $300 as liquidated damages? The latter proposition cannot well be maintained. There is no class of cases which come before us more difficult to determine upon any settled rule than this. It was said by Mr. Justice Agnew, in Streeper v. Williams, supra, at page 454: 'Upon no question have the courts doubted and differed more. It is unnecessary to examine the numerous authorities in detail, for they are neither uniform nor consistent. No definite rule to determine the question is furnished by them, each being determined more in direct reference to its own facts than to any general

**

*

rule. In the earlier cases the courts gave more weight to the language of the clause designating the sum as a penalty or as liquidated damages. The modern authorities attach greater importance to the meaning and intention of the parties. Yet the intention is not all controlling, for in some cases the subject-matter and surroundings of the contract will control the intention where equity absolutely demands it. A sum expressly stipulated as liquidated damages will be relieved from, if it is obviously to secure payment of another sum capable of being compensated by interest. On the other hand, a sum denominated a penalty or forfeiture will be considered liquidated damages where it is fixed upon by the parties as the measure of the damages, because the nature of the case, the uncertainty of the proof, or the difficulty of reaching the damages by proof, have induced them to make the damages a subject of previous adjustment. Upon the whole, the only general observation we can make is that in such case we must look to the language of the contract, the intention of the parties as gathered from all its provisions, the subject of the contract and its surroundings, the ease or difficulty of measuring the breach in damages, and the sum stipulated, and from the whole gather the view which good conscience and equity ought to take of the case.' * *The plaintiff proved that the defendant, in violation of his contract, had carried a certain number of passengers, which at the regular rates of fare amounted to the sum found by the jury. This was just so much money practically taken out of the plaintiff's pocket, and no good reason is apparent why he should not be compensated. The defendant has no equity which would constrain us to hold that language which technically provides a penalty shall be treated as liquidated damages. It is true the whole amount he received for the business, good-will and property was only $150. But this claim was for an interference with his business for over a year, and the direct loss to the plaintiff as found by the jury was largely in excess of the penalty. It can readily be seen that for such interference, continued for years, the sum of $300 would not be an adequate compensation." See note, 30 Am. Rep. 28.

In Long v. Paul, Pennsylvania Supreme Court, June 28, 1889, the will under consideration was as follows: "As to such estate as it has pleased God to intrust me with. I dispose of the same as follows, vis: I give and bequeath to my beloved wife Sarah Maurer, all my household furniture, my library in my mansion or dwelling-house my cow and heffer and hogs chicken and all my carpenter tools and all grains and all other personal property not mentioned also, all moneys and money Due me or hereafter may come, Due to be colected by my beloved wife Sarah Maurer herein named as soon after after my deceased as can be consistently with a property settlement. of. all my debts; and to have and to hold the same to her and assigns. and I also

give devise and bequeath to her my said wife Sarah Maurer, all my improvement and in come of my messuage and lot and house where, I now live and all that peace of land were Samuel Weary lived now deceased And, now occupied by his wido Catharine Weary on wich a dwelling house & Barn is on containing 93 acres more or less with its appertenances; and all that piece or parcels of lands siduated &c here described on the south by Machanoy Creek on the west by Benjamin Knerr & others on the north by land of the estat of Thommas henninger on the east by lands of Amos Vastine and my byloved wife Sarah Maurer is to pay all by Debt and if she can not pay it she shall sell so much of the land to pay for the rest of the land and keep it for her one youse, as long as she keeps my name and after she marries and dound keep my name any more she shall have the one half of all my Real & all personal proerty for her own youse and the other half I beques to my 3 sisters share and share alike. Catharin Intermaried with Elias Paul Sollome inter married with John Groh Lusina intermarred with Joseph. B. Becker. Lastly I appoint my esteemed fried Jerred Hennings to Eexecutor of this my last will and, testament after my beloved wife Sarah Maurer dound keep my name my above executor shall thevide it to my wife the one half of all Real & personal property and the other half to my three sisters share and share alike if can be devided without spoyling the hole if spoyling the hole he shall selling it at puplic sale and devided the money as directed." The court said: "But taking the whole will together the testator's intention is reasonably clear to give his wife the use and income of his whole estate so long as she remained his widow, and of half of it in case she remarried, but not in either event to give her more than a life estate in the realty. The lands are expressly given to her 'to keep for her own use, as long as she keeps my name,' which is plainly a gift during widowhood,

*

* *

and therefore an estate for life determinable on a second marriage. In this regard the case is not distinguished from Cooper v. Pogue, 92 Penn. St. 254, and indeed is by no means so strong a case for plaintiff in error's contention as that was. But after the devise to the widow so long as she remains unmarried there is a provision for the case of her remarriage, in which event she is to have 'the one-half of all my real and personal property for her own use, and the other half I bequeath to my three sisters,' etc., and the further provision that the executor shall make the division, and if it cannot be done without spoiling the whole, then he shall sell the property and divide the money as directed,' and it is argued that this is a gift of the corpus of one-half in case of remarriage, and therefore unless the first estate was a fee, a larger provision in case of second marriage than in the event of remaining a widow, which would be clearly contrary to the testator's main intent. While a fee in one-half would probably have been called by the early lawyers an estate of higher dignity than a life estate in the whole, I am not aware of any rule which would

enable us to say as a matter of law that it was a larger or more favorable provision for a widow. That is a question of fact which depends on circumstances, and must always be largely a matter of individual choice. But it is by no means clear that this is the proper construction of the provision in case of remarriage. On the contrary, the repetition of the phrase 'for her own use,' seems rather to be meant to continue the idea of a life estate contained in the preceding clause, and if so the direction to the executor to make the division of the property, and if that cannot be done, to sell, and divide the money, would be subject to the same limitation, towit, to her own use for life. As the widow however did not remarry, our only concern with these parts of the will is their bearing on the construction of the previous clause, and as to it they give us very little light. On the whole will, even if the intent to give only a life estate were more doubtful than it is, we could not distinguish this case from Cooper v. Pogue, already cited. With variations of language the substance of the gifts is identical, and while will cases are rarely precedents for more than the principles they illustrate, yet where there is such substantial identity not only in intent but in expression, the prior case is at least very strong confirmation of the correctness of the view we have taken of the present. And the same remarks apply with great force to the notable analogous case of | Nash v. Simpson, 78 Me. 142,"

INSTRUCTING THE JURY.

SOME REFLECTIONS ON THE METHOD IN VOGUE SUGGESTED BY THE MAYBRICK CASE.

T is a theory of our modern system of Jurispru

body are the sole judges of the facts. Under the prevailing practice however, which permits the judge pre

siding on the trial to sum up the case, it is little more than a theory. The respective duties of judge and jury are well and clearly defined in the maxim: "Ad quæstiones facti non respondent judices, ad quæstiones legis non respondent juratores." In other words, the court instructs the jury as to the law of the case, the jury decide as to the facts. Now, it is quite clear that unless the latter are permitted to so decide upon their own judgment, uncontrolled and uninfluenced by any suggestions of the court, the court and not the jury may have the disposal of the case, and thus the virtue, if any there be, in the trial by jury will be sacrificed. The right to trial by twelve jurors is guaranteed in certain cases. It was one of the provisions of the great charter, that no man should be "passed upon or sent upon but by lawful judgment of his peers." Blackstone says: "The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases!" And again: "It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected either in his property, his liberty, or his person, save by the unanimous consent of twelve of his neighbors and equals.”

This is remarkable language, in view of the character of the "summing up" by Mr. Justice Stephen, in