66

EXPRESS BUSINESS.-Engaging as an express messenger is not doing an express business." Eastern Express Co. v. Meserve, 60 N. H. 198.

BOOK.-The face of a barometer is not a "book." In Davis v. Committi, a recent English case, the question arose whether the printed face of a 'forecast barometer was a "book" within the definition of the Copyright Act, 1842, section 2, which enacts that a book shall be construed to mean and include, amongst other things, "every sheet of letter-press map, chart or plan separately published." Chitty, J., said that the face of the barometer was but a necessary part of the instrument, and if separated therefrom, was not intended to have, and in fact had no use or meaning whatever. Regarded as a card apart from the barometer, it not only foretold nothing, but told nothing. By reading the printed matter on the face alone no intelligible proposition could be arrived at, and to make it speak it must be read in connection with the instrument, and not so much in connection with the instrument's hands or indices as with the mercury column, the manipulation of the hands depending on the height of the mercury. As a matter of fact, the face had never been separately published, or in any manner used as a separate publication. By itself it was not a chart in the sense of being a weather chart. He also held that it was not a sheet of letter-press separately published, and therefore not a book within the meaning of the act. In confirmation of that view regard might be had to section 6 of the act, requiring a copy of the whole of every book to be sent to the British Museum. If the face was a book, a delivery of the face would be a compliance with the act, although the face by itself was without use or meaning. The necessity of delivering the barometer as the whole book reduced the position to an absurdity. Furthermore, it would be strange if an inventor of a barometer could obtain a patent and protect his invention for fourteen years, and at the same time, for all practical purposes, secure a monopoly for at least forty-two years by registering the face under the Copyright Act, 1842. The face of the barometer was not within the act.

APPROACH TO A BRIDGE. In Whitcher v. City of Somerville, Massachusetts Supreme Judicial Court, Jan., 1885, it was held that that portion of a street lowered by a railroad corporation for the purpose of having its railroad pass over it upon a bridge, does not constitute an "approach" to said bridge. The court said: "The approaches to a bridge are the ways at the ends of it which are a part of the bridge itself, or are appendages to it. This was quite plain under the statute of 1846, chapter 271, section 1. By the common law the duty to keep a bridge in repair carries with it the duty to keep in repair, as a part of the bridge, the highway at each end of it, for a space of three hundred feet. King V. West Riding of York, 7 East, 588; same case in House of Lords, 5 Taunt. 284. This limit of has not been adopted in this Commonwealth, but the highways at the ends of the bridge have been

space

recognized as, and called the approaches to it in several decisions. Commonwealth v. Deerfield, 6

Allen, 449, 455; Titcomb v. Fitchburg R., 12 id. 254, 259; Rouse v. Somerville, 130 Mass. 363. This was the meaning in the statute of 1846, chapter 271, section 1, and when taken with the context is the meaning in Public Statutes, chapter 112, section 128. As the bridge in the present case was not a part of the highway, but was a part of the railroad track, and crossed the highway over the level thereof, the approaches to it did not include any part of the highway, and the town was not relieved of its liability to keep in repair that portion of the highway where the accident happened."

WATER-COURSE.-"To constitute a water-course the size of the stream is immaterial. It must be a stream in fact, as distinguished from mere surface drainage occasioned by freshets or other extraordinary causes, but the flow of water need not be constant. Shields v. Arndt, 4 N. J. Eq. 234; Gillett v. Johnson, 30 Conn. 180; Bassett v. Manufacturing Co., 43 N. H. 569; Dudden v. Guardians, etc., 38 Eng. Law & Eq. 526. In Shields v. Arndt it is said: 'There must be water as well as land, and it must be a stream usually flowing in a particular direction. It need not flow continually, as many streams in this country are at times dry.' When water has a definite source as a spring, and takes a definite channel, it is a water-course, and no person through whose land it flows has a right to divert it from its natural channel, so as to cause injury to another land owner by the diversion. Dudden v. Guardians, etc., 1 Hurl. & N. 630; Gillett v. Johnson, 30 Conn. 180; Luther v. Winnisimmet, 9 Cush. 171; Kauffman v. Griesemer, 26 Penn. St. 407." Pyle v. Richards, Nebraska Supreme Court, Feb., 1885.

SIGNING A NOTE OR DEED, DARWINICALLY CONSIDERED.

N the story of Ali Baba and the Forty Thieves, it

In this remembered that one of the robbers under

took to identify the house to which he wished to lead his comrades, by setting a chalk-mark upon the door. And that the scheme failed because Morgiana placed a street. Now suppose the chalk-mark had signified to like mark upon the doors of all the houses in the same the thief that the house was (say) the twenty-fourth one on the right from the corner. In vain would Morgiana have multiplied the mark, the meaning would have remained single; and unconfounded by its recurrence throughout the street the thief would have pitched at once upon the house which he originally had selected.

The story and the supposition will serve to introduce at once the thought of a classification and a natural history of signs.

The natural progress is from things to thoughts, from images and representations to mere identifying instrumentalities. That is, significants by evolution become (mere) signs.

We will take the word "sign" and consider how it, and the fact it means, with various accessory words and circumstances, more or less closely connected, reveal this progress.

In common idea to " sign a note is to subscribe it, to write one's name underneath. But in law it is not

so; the name anywhere is a "signing," that is, a making out who it is that is responsible. And this name marks out who, not because it means the man but merely identifies him, as the chalk-mark did the door. John Smith originally meant that John who is the Smith, now it is no longer a mark of his calling; as Johnson originally meant the man who is the son of John, but no longer does. And as one, out of many doors chalked alike and meaning nothing, can no longer be identified, singled out; so Johnson (and still more John Smith) cannot, as such be individualized. For as the grammars say, he "is a noun of multitude."

Again, a printed name, one struck by stamp, stencil, or die, is a signature, an identifying mark, for in law the marking out need not be written. Further, not even a name, nor initials, need be used; for a man may make his "mark." That is, may hold the pen while a cross is made an evidence of his act of assent. And this cross is itself now an arbitrary unmeaning thing, though in Darwinian phraseology an evidence of survival of a mark once religiously significant. For of old this signature of the cross pledged the faith of a Christian; now an atheist or infidel may so unques tioned sign. A curious survival this of Christianity in the law! I quote Blackstone as evidence: "Propria manu pro ignorantia literarum signum sanctæ crucis expressi et subscripsi" (with my own hand on account of my ignorance of writing I have made and drawn underneath the sign of the holy cross; the language written for Caedwalla, a Saxon king, at the end of one of his charters, 2 Bl. 305* [d] ).

Then the seal attending the signature to a deed. The "seal" is a word survival of sigillum; as a figured scroll with the mystic L. S. inside is an ink survival or image of the wax. L. S., the "signs" of locum sigilli, the place where the seal ought to be, but isn't. The charity of legislative overrulings of the strict common law allows the mystery of the scrolled (and scrawled) L. S., instead of the antiquated necessary wax "capable of receiving an impression "-that is, of being permanently marked and characterized by the die or signet ring of the party to be bound. Of old the seal, the impressed wax, was the one only legal mark, proof of the "execution" (doiug, carrying out to completion) of the "deed." And the "deed" was (to be ungrammatical) the thing "did."

You see the old common law, when kings, noblemen and people were more in the way or handling swords than pens, and making marks in blood than in ink, required the mark in the wax as the sign of the deed done; and no signing in the ink way was at all necessary. I give more from Blackstone as evidence; "The Normans change the work of the scribes (which in England was customarily perfected by golden [illuminated] crosses and other holy marks) into impressed wax, and reject the mode of drawing" (the crosses and marks) "used by the English," 2 Bl. 306* (f), as trauslated.

Now to return to the word sigillum. Notice that this is the diminutive of signum (see the first quotation from Blackstone), and so within the completed circle of its history is "seal" a double, and indeed a triple "little sign." First, it is the mark of the deed, the solemn considered act done. Second, the thing being used instead of ink, and the name being Latin not English, it is a mark of the want of education and of the great influence of the Roman clergy (or clerks) who knew how to write, or were supposed to know; and some of whom drew up the "scribal" portion of the deed. Third, its verbal parent is the very word in Latin from which we have the English word sign at all. Now signum further corresponds to the Greek ELKOV, eikon, image. So that we see the word "sign" in its own development demonstrating the principle

that the progress is from things to thoughts, from pictures, images, likenesses of the tangible and visible; from representative meanings; to symbols, unmeaning marks, of some thing.

The word sign has now done (as Humpty Dumpty in the Alice Book would say) a fair day's work; will therefore be dismissed the court.

We started with signing a note. Consider the word "note" a little. Commercially this stands for a promise to pay, and also the paper on which the promise is written. But in law the note is neither the paper nor the promise (in strictness); it is the evidence, memorandum, mark of the promise. Nota note, mark. Nosco, to know; notum, the known. Nota is thus the known mark of a known thing, its characteristic. This last word in turn is from the Greek charasso, to cut, to cut mark. Character is the cut which is deeply marked, so as to be remarked. And so the mental and moral qualities of a man constitute the mark of that man. Such is the progress from things to thoughts, from the physical to the metaphysical. Yet reversion, as it may be termed, often occurs; thus commercially the note is not the memorandum of an agreement simplybut the writing or even the paper written; the transfer of idea here being from thoughts to things.

JOHN B. WOOD.

THE HOUSEHOLD AGENCY OF WIFE FOR HUSBAND.

THE

HE husband is the head of the family(1), and in regulating his household may or may not put his wife in charge of certain departments thereof, and make her his agent in matters pertaining to their domestic life(2); whether he has or has not made her his agent is always, except when she relies on her agency in law for support(3), a mere question of fact, to be determined from all the circumstances of the case(4); whether a particular act was within the scope of her agency, is a mixed question of law and fact(5).

I. The wife's appointment.—(a) If husband and wife are permanently separated, and the wife has an establishment of her own, even if it has been given her by him, it is hers, and there is no presumption that she may keep it at his expense(6). (b) If they are only temporarily separated through his absence, and she is apparently in charge of his establishment, there is a very strong presumption that she is his agent in the management thereof(7). (c) If they are living together, but are boarding or have no establishment, the fact of their cohabitation raises no presumption whatever of any agency of her for him(8). (d) If they are living together and are keeping house, there is a presumption that she has charge of the domestic part thereof(9).

(1) Stewart M. &. D., §§ 221, 253.
(2) See 1 Bish. M. & D., 355.
(3) Stewart M. & D $ 180.

(4) Reid v. Teakle, 13 C. B.627; Ryan v. Sams, 12 Q. B. 460; Debenham v. Mellon, L. R., 6 App. Cas. 24, 32; Clark v. Cox, 32 Mich. 204, 213; Keller v. Phillips, 39 N. Y. 351.

(5) See Reneaux v. Teakle, 8 Exch. 680; Lane v. Iremonger, 13 Mees. & W. 368; Parke v. Kleeber, 37 Penn. St. 251; discussion in 2 Smith L. C. (404) et seq.

(6) See Debenham v. Mellon, L. R., 6 App. Cas. 24; L. R 5Q B. D. 395; Manby v. Scott, 1 Lev. 4; 2 Smith L. C. (402.) (7) Rotch v. Miles, 2 Conn. 630, 645.

(8) Debenham v. Mellon, L R., 6 App. Cas. 24, 33; L. R., 5 Q. B. D. 395.

(9) Debenham v. Mellon, L. R., 5 Q. B. D., 394, 402; Clifford v. Laton, 3 Car. & P. 15, 16; Reneaux v. Teakle, 8 Exch. 680; Phillipson v. Hayter, L. R., 6 C. P. 38, 41, 42; Ruddock v. Marsh, 1 Hurl. & N. 601; Emmett v. Norton, 8 Car. & P. 506, 510; Freestone v. Butcher, 9 id. 843; Montague v. Benedict. 3 Barn. & C. 631, 635; Hughes v. Chadwick, 6 Ala. 651; Benjamin, 15 Conn. 347, 357; 39 Am. Dec. 384; Shelton v. Hoadley, 15 Conn. 535; Johnston v. Pike, 14 La. Ann, 731; Furlong v. Hysom, 35 Me. 332; Eames v. Sweetzer, 101 Mass. 78; Harshaw v. Merryman, 18 Mo. 106: Pickering, 6 N. H. 120, 24; Tebbetts v. Hapgood, 34 id. 420: Sterling v. Potts, 5 N. J. L., 773; Keller v. Phillips, 39 N. Y. 351; Cromwell v. Benjamin, 41 Barb. 558; Meader v. Page. 39 Vt. 306, 308; Sawyer v. Cutting, 23 id. 486, 490; Bugbee v. Blood, 48 id. 499, 501; Savage v. Davis, 18 Wis. 608, 613.

The presumptions of her agency in cases (b) and (d) are rebuttable (10), and the husband may relieve himself of the liability by showing that his domestic arrangements excluded any such agency on her part(11), or that he prohibited her from acting on his account(12), and it makes no difference whether the third party was aware of this or not(13). But if it appears that he in some way allowed her to seem to have charge of his house, or recognized her acts as his agent therein (14), the mere fact that he privately forbade her to act for him will not relieve him of liability(15). And when he has once recognized her agency, although he may revoke it at any time(16), such revocation will have no effect as to persons with whom he has allowed her to deal as his agent, unless they are specially notified thereof(17). In fine, her agency is in kind-though not so limited in scope(18)—the same as that of a servaut or steward placed in charge of a household(19), and therefore it makes no difference whether the woman is his legal wife or not(20). But if all the credit is given to her he is not liable; she must have been dealt with as agent(21).

II. The scope of the wife's authority.-When the wife is her husband's agent in managing his household, her authority covers all such matters as wives in such positions usually attend to(22), and includes the right to do whatever is necessary, proper or usual to effectuate the purposes of her agency (23). Thus: she may deal on his etc. (24); she give rea

HART V. PENNSYLVANIA R. Co.*

Where a contract of carriage, signed by the shipper, is fairly made with a railroad company, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuation.

error to the Circuit Court of the United States

ties(26); she may employ necessary servauts(27); and may in fact procure on credit all such things as belong to the class "necessaries "(28), whether they are really needed or not(29). But she cannot thus procure extraordinary things(30), although if she thus exceeds her (10) Debenham v. Mellon, L. R., 6 App. Cas. 24, 32, 37; 50 L. J., Q. B. D. 155; L. R., 5 Q. B. D. 394, 402; 49 L. J.. Q. B. D. 49; Clark v. Cox, 32 Mich. 204, 213; supra n. 9.

(11) See Barr v. Armstrong, 56 Mo. 577, 581. Giving her an allowance is not alone sufficient. Ruddock v. Marsh, 1 Hurl. & N. 601, 604; Holt v. Brien, v. Barn. & A. 352.

(12) Morgan v. Chetwynd, 4 Fost. & F. 457, 458, 459.

(13) Debenham v. Mellon, L. R., 6 App. Cas. 24, 32; L. R., 5 Q. B. D. 394, 402; Jolly v. Rees, 15 C. B. (N. S.) 628.

(14) Waithman v. Wakefield, 1 Camp. 120, 121; Rennick v. Ficklin, 5 B. Mon. 166.

(15) Debenham v. Mellon, L. R., 6 App. Cas. 24, 33.

(16) Wallace v. Beddick, 22 Week. Rep. i; Debenham v. Mellon, L. R., 5Q. B. D. 394, 403; Daubney v. Hughes, 60 N. Y. 187, 191.

(17) Cany v. Patton, 2 Ashmead, 140.

(18) Benjamin, 15 Conn. 347, 357; 39 Am. Dec. 384; infra nn. 22, 23.

(19) Debenham v. Mellon, L. R., 5 Q. B. D. 394, 399; L. R., 6 App. Cas. 24, 33.

(20) Blades v. Free, 9 Barn. & C. 167, 171; Robinson v. Nabon, 1 Camp. 245; Watson v. Threlkeld, 2 Esp. 637.

(21)

(22) Ruddock v. Marsh, 1 Hurl. & N. 601, 604; Emmett v. Norton, 8 Car. & P. 506, 510; Phillipson v. Hayter, L. R., 6 C. P. 38, 42; Montague v. Benedict, 3 Barn. & C. 631, 635; Pickering, 6 N. H. 120, 124; Bugbee v. Blood, 48 Vt. 499, 501; Meader v. Page, 39 id. 306, 308; Sawyer v. Cutting, 23 id. 486, 490; Savage v. Davis, 18 Wis. 608, 613.

(23) Benjamin, 15 Conn. 347, 356, 358; 39 Am. Dec. 384. (24) Debenham v. Mellon, L. R., 6 App. Cas. 24, 36.

(25) Spencer v. Stores, 38 Vt. 156, 158.

(26) Humes v. Taber, 1 R. I. 464, 473.

(27) White v. Cuyler, 6 Term, 176; Condon v. Callahan, 9 Abb. (N. C.) 407, 411; compare Rotch v. Miles, 2 Conn. 638,

646.

(28) Stewart M. & D., § 180.

(29) Ruddock v. Marsh, 1 Hurl. & N. 601, 604.

(30) Freestone v. Butcher, 9 Car. & P. 643.

states the facts.

Melville C. Day and G. M. Stewart, for plaintiff in

error.

E. W. Pattison and Newton Crane, for defendant in

error.

BLATCHFORD, J. Lawrence Hart brought this suit in a State court in Missouri against the Pennsylvania Railroad Company, to recover damages from it, as a common carrier, for the breach of a contract to transport, from Jersey City to St. Louis, five horses and other property. The petition alleges that, by the negligence of the defendant, one of the horses was killed and the others were injured, and the other property was destroyed, and claims damages to the amount of $19,800. After an answer and a reply, the plaintiff removed the suit into the Circuit Court of the United States for the Eastern District of Missouri, where it was tried by a jury, who found a verdict of $1,200 for the plaintiff; aud after a judgment accordingly, the plaintiff has brought this writ of error. The property was transported under a bill of lading issued by the defendant to the plaintiff, and signed by him, and reading as follows:

"BILL OF LADING.

"Form No. 39, N. J.

187-.

"Limited Liability Live-Stock Contract for United Railroads of New Jersey Division. (No. 206.) "JERSEY CITY STATION, P. R. R., "Lawrence Hart delivered into safe and suitable cars of the Pennsylvania Railroad Company, numbered M. L. 224, for transportation from Jersey City to St. Louis, Mo., live-stock, of the kind as follows, one (1) car, five horses, shipper's count; which has been received by said company, for themselves and on behalf (31) Mickelberry v. Harvey; 58 Ind. 523, 525. (32) Gilmer v. Andrus, 28 Vt. 241, 242. Wakefield, 1 Camp. 120, 121; Atkins v. Curwood, 7 Car. & P. 756, 760.

See Waithman v.

(33) Morgan v. Chetwynd, 4 Fost. & F. 451, 459.

(34) Keller v. Phillips, 39 N. Y. 351.

*Affirming 7 Fed. Rep. 630; S. C., 5 Sup. Ct. Rep. 151.