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ereign is, nor do they agree as to wbere the sovereignty -Motion for reargument. Former order of the court lies in such composite States as the United States of in this case amended so as to read as follows: Order North and South Americas. It is no doubt impossible of the General Term reversed, and all that portion of to have a clear conception of law without a clear con- the judgment of the Special Term relating to a recopception of sovereignty--sovereignty is the Blackstonian ery by the plaintiff from Mary A. Nostrand of rents “ supreme political authority," but the modern writers and profits of land, and to the accounting by her for take up the definition much more profoundly than did such rents and profits strickeu out, and that judgment Blackstone.
as thus modified, affirmed without costs of appeal to Professor Bliss, in his chapters on the Limitations General Term, or to this court, or to either party; of Sovereignty, conflicts with certain notions enter and further ordered that the remittitur from this tained by Austin, but agitation is the life of doctrine. court may be made to conform to this order-Benj. In his arguments on the basis of jurisprudence, Pro- Wright, receiver, appellant, v. Elbert Nostrand and fessor Bliss is also guilty of some curious inversions, others, respondents. Motion to advance cause. for instance to attribute the law of nature to the prop-Granted without costs-People ex rel. Cayuga Indians, erty right is a veritable non causa pro causa, but yet etc., appellants, v. Commissioners of the Land Office, we never criticise a speculation which is as evidently respondents.-Granted so far as to allow counsel in well thought out as that of this little book.
the cases of McCormick and Taylor to intervene and In Part II, Professor Bliss treats two of the most submit points on the argument of No. 188, without momentous topics of our time: “Sovereignty in the costs—In re Petition of Ruth M. McCormick and an. Federal States" and “Secession of a member of the other to intervene. -Motion to advance cause. Defederation.” It is but recently that we have heard nied with costs-John C. Spencer, appellant, v. John Professor Dicey on the former subject, and while the Merchant, respondent. -Motion to dismiss appeal impression is firm we are glad to have Professor Bliss' denied, with $10 costs-Fred. Zoeller, appellant, v. dissertation, which should be as widely read. The Julia A. Riley, administratrix, respondent. -Motion striking observation of the latter writer as to the mis- to dismiss appeal denied, without costs-Wm. F. G. chief in affirming that the right of secession was ad- Shanks, respondent, v. Josh Hart, appellant. — Dejudicated by the late war, should have some influence nied, with costs-In re Application of Union Ferry on current thought. If the question was settled by Company, etc., for an order awarding costs.—Motion one war, it may be unsettled by another; either the to stand over until notice has been given to the attorquestion exists independently of all war, or it does not neys in this case and in the case of Spray v. Hegemanexist at all. These are very important truths, and we In re Application of Moore v. Hegeman to recall remitcommend them to those of our readers who think on titur. this subject.
We may add that this little volume is a fine specimen of the printer's art. Published by Little, Brown &
NOTES. Co., Boston.
The Albany Argus says of the Hon. Amasa J. Parker COURT OF APPEALS DECISIONS. of this city: “While living at Delhi, Delaware county,
he was elected to the Assembly avd served in the Leg. PAE following decisions were handed down Tues- islature of 1834. So far as is known, he is the sole day, March 24, 1885:
survivor of that house. Of the Senate of that year, Judgment affirmed with costs—Thomas Gauley, ad. Hon. Henry A. Foster, of Rome, is the only man now ministrator, respondent, v. Troy City National Bank, living. In 1836, he was elected to the house of repreappellant; Fanvie V. Russell, respondent, v. Village sentatives from the then Twentieth District, serving of Canastota, appellant; Philip Hayes, appellant, v. one term. Of the forty-three gentlemen who repreBernard Reilly, sheriff, etc., respondent; Nellie Near, sented the thirty-three districts of the State, for the administratrix, v. Delaware and Hudson Railroad whole or portions of the three sessions of that ConCompany, appellant; Owen Gilmore, administrator, gress besides Judge Parker, the only survivors are respondent, v. Long Island Railroad Company, appel- Judges Henry A. Foster; Hiram Gray, of Elmira; lant; Addie M. Smith, repondent, v. Lewis H. Cra- Arphaxed Loomis, of Little Falls; and Richard P. mer, receiver, etc., appellant. — Appeal dismissed- Marvin, of Jamestown. March 6, 1814, he was apPeople, appellants, v. Austin Persons, respondent.- pointed by Gov. Bouck one of the Circuit judges of Judgment reversed, new trial granted, costs to abide the State, and served until the office was abolished in the event-David P. Morehouse, receiver, respondent, | 1847. The same spring he removed to this city, and of v. Second National Bank of Oswego, appellant.- the gentlemen whom he found in practice at the bar Order affirmed without costs-People v. Third Avenue here, only Hon. Charles M. Jenkins and Hon. Andrew Savings Bank.-Order appointing commissioners af. J. Colvin remain in the legal harness. With the ex. firmed with costs-In re Petition of N. Y. L. and W. ception of Judge Hiram Gray, who was appointed a R. Co., lands of Scheu and others.- -Appeal from or- Circuit judge, January 13, 1846, no other jurist who der affirming report of commissioners dismissed-In wore its ermine is now living. June 7, 1847, he was the Petition of N. Y. L. & W.R. Co. for appointment of elected a justice of the Supreme Court for the Third Scheu et al. -Order affirmed with costs-Jos. Hillen judicial district. His colleagues on the bench of the brand, ex'r, v. Herman B. Lanfer, et al.; Wm. Smyth, District were Judges Wm. B. Wright, Ira Harris and acting supt., v. Edward Rowe and others; George Malbone Watson. They have all gone to their reB. Abbott, public administrator, respondent, v. John wards, and of the thirty-two gentlemen who were S. Curren et al., appellants. -Appeal dismissed with chosen that year to the bench of the new Supreme costs—Frances L. Carpenter, appellant, v. Wm. M. Court, in the eight judicial districts, the survivors Adams et al., respondents.
-Motion for reargument are, Judge Amasa J. Parker, of the Third; Judge denied, with costs—Robert T. Smart, respondent, v. Hiram Gray, of the Sixth; and Judge Richard P. Andrew J. Smart, appellant; John A. Lambert, ex- Marvin, of the Eighth. Judge Parker, on the allotecutor, respondent, v. Horace Craft and others, appel- ment, drew the full term of eight years, and served lants; Frank J. Mills and others, respondents, v. with distinction on the bench until December 31, 1855. Holmes Odell and others, appellants; Margaret Moore, After an absence of twenty-one years, he took his appellant, v. City of Albany, respondent; In re Peti- place at the bar, and commanding a place in the front tion of Union Stock Yard, etc., Company to vacate. rank there, he has held it till the present time."
The Albany Law Journal.
may present opportunities for more extensive Wrangling, or for more frequent posing in studied
attitudes before the public; mercantile pursuits or ALBANY, APRIL 4, 1885.
speculations may allure with glowing prospects of accumulations of the world's wealth, an easy life,
and an indolent old age; but the true lawyer will CURRENT TOPICS.
put behind him all these temptations, remembering
that he has chosen a jealous mistress, whose rewards THE legal profession have suffered a great loss in
have their own peculiar value, and are reserved for the death of Mr. John Norton Pomeroy, who
those only who serve her in singleness of heart and died last month at San Francisco. He was well
purpose. 2. She is jealous of the quality of our known as a legal author, and as the editor of the
service. She insists upon the best of which we West Coast Reporter. His last and most important may, by unceasing effort, make ourselves capable. work, on Equity Jurisprudence, is that by which
The charms and graces of literature, the power of he will be chiefly remembered, and it is an
pure and vigorous rhetoric, the demonstrative and exceedingly meritorious treatise, quite worthy to
resistless forces of logic, the full rich fruitage of stand by the side of, and to supplement Story's the cultured intellect, and the potent influences of great treatise. We infer that Mr. Pomeroy's death
warm and sympathetic affections, all these she was unexpected, perhaps due in some measure to
would have employed in and devoted to her works. overwork. At all events, whether his life's work
* 3. Our mistress is jealous, too, of the most was complete or not, there can be but one opinion | minute details of our conduct while in her service; as to his talents and the usefulness of his career, jealous for her own sake and on her own account, and there will be unanimous regret at his death.
no less than our own. From a Bar like this of
Tennessee, noted for its high standard of fraternal The Columbia Jurist, the organ of the students courtesy, it is easy to win words of approval for of the Columbia Law School, says:
We acknowl- every sentiment which inculcates consideration for edge the courtesy of Assemblyman S. W. Johnson the rights and feelings of the brother lawyer. It in sending us a copy of the proposed Civil Code,
should be easy, too, to enlist the kind and attentive now the subject of such wide discussion. We have regard of such a Bar in behalf of the interests and neither time, space, nor ability (at present) to at- the welfare of jurisprudence herself. It should be tempt the expression of an opinion on it; but when accepted as an axiom, and adopted as a rule of conwe learned from the heading that it had been read duct, by every servant of the jealous mistress, that twice, we did sympathize with the Assembly.” in every act and deed in the practice of his profesWe have heard all sorts of objections to the Code, sion, he will carefully conserve and protect the but we never before heard it accused of being too doctrines of jurisprudence for their own sake. Belong. Its opponents generally have charged it
cause of the possible injury to the law herself, no with being too short. That is the opinion, we be- infraction of those rules should ever be consciously lieve, of the learned head of the Law School, Pro- committed, or even indulgently tolerated. One infessor Dwight. But it is not so long as the
stance may here be noticed, which will illustrate at learned professor's lectures on any single law topic, once the demands of the jealous mistress, and the we take it, and it certainly is not much if any lon- too common disregard of them.” (The habit of ger than a very learned printed opinion on an in- leading witnesses is here dwelt upon and conterlocutory question in a reference tried before him, demned.) “4. Finally, she is jealous of the advantwhich he did us the honor recently to send us. If
ages and the responsibilities which are the birthour young friends, the students aforesaid, should right of the Bar Association. The exactions of her find the Code adopted, they would probably be able jealousy are, as in the case of individuals, ever comto learn the bare principles of the common law in mensurate with our opportunities. If by such a less than two years, which is the time now con- union lawyers can secure greater ability for her sumed in stating them at that excellent law school. service, it is the full measure of this enlarged ability
which she demands. The broader wisdom which waits "The Jealous Mistress," is the title of an address upon a multitude of counsellors, the deeper insight delivered before the Bar Association of Tennessee into the principles of jurisprudence which conferlast July, by Mr. James 0. Pierce, of Memphis. At
ence affords, the multiplied power which the many, first glance, we supposed the pamphlet was an ac- when combined, can exert, of all these is the miscount of one of those trials in which emotional in- tress jealous. We shall satisfy her only by the most sanity is the stock defense, but on examination we
strenuous efforts to do all that wit and wisdom can find that “the jealous mistress” is the law. Mr. jointly devise. For us as an association does our Pierce says ; "The jealousy of this mistress is birth-right prescribe the motto, Noblesse oblige ? Is fourfold. 1. She is jealous of our time, our talents, the reproach a just one, brothers, that the Bar Asour energies, our accomplishments. There can be sociation as an institution is a failure? Is it true no divided allegiance; all must be hers pre-emin that it meets annually, listens to well-written papers ently. Literature may attract to tasks less burden- and wise reports, passes good resolutions, partakes some, and offer prizes within easier reach; politics | of a banquet, where it applauds witty responses to
Vol. 31 - No. 14.
sapient toasts, secures a faithful press report of all use of it was an infringement, he cannot have the inthat is worth reporting with much that is not, and junction set aside on subsequently discovering that without more adjourns ? Is this to faithfully serve he was mistaken. The court said: “ All the misa jealous mistress, to improve the advantages of a take that can by possibility be alleged is that, position on the heights, or to impress the power whereas the defendant conceived that he had no and influence of our associated personality upon the defense to the action, yet by an accident he had age ?” A pregnant question, which other Bar As- a good defense when he gave the consent, and that sociations would do well to consider.
he afterward discovered this fact. No other fact
is proved to have been discovered by him than that The appointment by the president of Mr. Phelps buttons to England on the 21st of September, 1880,
his principal had already delivered these imperial as minister to England will give pleasure to the buttons to England on the 21st of September, 1880, large number of lawyers who have known Mr. and that it is probable that Elsas and Bochs had Phelps as a member, and as the president of the not then introduced the invention into this country. American Bar Association. Mr. Phelps stands in
Whether that would be a good defense or not of the very front rank of American lawyers, and is dis
course I cannot tell. That is the only circumstance tinguished likewise for his general culture and
which he now says he has since discovered. Is it a scholarship, his tact, his address, his knowledge of mistake? A man conceives he would rather not fight the world, his elegance as an orator, and his pre- fore consents to a perpetual injunction. Is he to be
an action in which he may possibly fail, and thereeminent social power
. He has all the qualifications able afterward to say: 'Well, now I withdraw my for the post to which he is assigned. Mr. Phelps consent bocause I have discovered this fact, that was not a sure prophet during our civil war, but there is a sort of poetic retribution in sending him these imperial buttons which I was selling had been to England to testify silently how much he was
delivered in England on the 21st of September,
1880 ?' That I understand to have been two years mistaken. Greater men than he were as much mistaken in the opposite direction – Mr. Se ward, for before the registration of the trade-mark. I assume example, who thought the “rebellion ” would be it was so; but does that amount to mistake? If it put down during the life of an ordinary promissory does, all I can say is that every case would be a note. We should dislike to believe that Mr. Phelps
case of mistake in which a man, after consenting to was not a patriot during the time of our national
a perpetual injunction, discovers some fact on disasters, but if he was not, we can afford to for- which he conceives he could found a defense to the give him now, and show our magnanimity by utiliz- action. That is not my idea of the meaning of ing his unquestioned talents in the service of the mistake, and I am very loth indeed to give the country of whose life he despaired.
word 'mistake,' in this connection, so large &
would be that in every case, or in nine out of ten What contemptible questions the law is com- cases, we should have applications of this kind by pelled to stoop to is illustrated in the case of Le a defendant, after consent deliberately given to a May v. Welch, 51 L. T. Rep. (N. S.) 867, where the perpetual injunction, to be allowed to withdraw Court of Appeals gravely sit in judgment on the his consent, and have the case tried on the merits. shape of a “ dude” collar, on a charge of infringe- I do not think that this amounts to such mistake ment of patent. Baggallay, L. J., says: Here is a as to relieve a man from his deliberate consent to a collar of particular shape, which the plaintiffs call
perpetual injunction.” the Tandem Collar.' It is a collar which encircles the neck, as all collars do, but it has no band
In Kensit v. Great Eastern Ry. Co., 51 L. T. Rep. like the old-fashioned collars. It has a stud-hole (N. S.) 862, Court of Appeal, & riparian owner at the bottom, leaving a considerable amount of granted a license to a person whose land did not space above, not only up to the line where the col- abut on the river, to take water from the river for lar encircles the neck, but a broad rim before there
use in his factory. The water was returned to the comes a cut in the collar, which cut has been refer
stream at a point six feet lower down than the red to very much. It has been called a segmental point of withdrawal, un polluted and undiminished, A |
to form cut into it,” etc. And two other judges also the water, or against the riparian owner through express opinions on the momentous question of whose land it was taken. Opinions were delivered novelty of invention.
by Baggallay, Cotton and Lindley, JJ. The latter
said: · Upon that a very ingenius argument has NOTES OF CASES.
been addressed to us with a view to persuade us,
on the part of the plaintiffs, that because somebody N Elsus v. Williams, 52 L. T. Rep. (N. S.) 39, it who is above them is taking water from the stream I , by consents to a perpetual injunction restraining him there is no injury to the plaintiffs either actual or from the use of a trade-mark, believing that his possible. Well, that is startling. It is not ad
would be an all-round collar," having a wedge-like to an injunction against the land-owner so taking
mitted that there is no possible injury. On the thing of the sort. Then it is put in another way contrary, it was contended that some possible in- | in an extremely ingenious way — in Mr. Barber's jury might accrue. But when that contention is argument, to the effect that riparian proprietors in looked at closely, I think it vanishes. So long as a stream are a class of persons in the nature of a Free does that which he is doing there cannot be close borough, and that any one of them has a right possibly more injury than he is now inflicting, to object to the introduction into that class of persons which is nil. Of course, if he does something dif- who have not got property bordering on the stream. ferent, that is another matter. If by means of that Well, where is the authoritory for that? It is an pipe he were to impede this stream, and not return ingenious suggestion, but no authority has been the water, there would be cause to complaiu. As cited in support of it, and I am very wary of extendlong as he is doing nothing more or less than he ing to the discussion of the rights of water any does now there is no possibility of injury at all. analogy drawn from close boroughs, or any thing of Then, failing that, very ingenious attempt has the sort. I distrust the argument. It strikes me been made to support this case by trying to force as a false analogy altogether. It comes back howus to carry a step further the decisions as regards ever to this, that the right of these plaintiffs has non-riparian grants. I mean the Stockport Water- not been infringed, and that is the answer to the works Company v. Potter, 3 H. &. C. 300, and whole case." Ormerod v. Todmorden Joint Stock Mill Company, 11 Q. B. Div. 155. It is put in this way: It is said In McNamara v. Village of Clintonville, Wisconsin that a man who is not a ripariau proprietor has no Supreme Court, February 3, 1885, 22 N. W. Rep. right to take water from a stream at all, and that if | 472, an action for personal injuries caused by a fall I, a riparian proprietor, find anybody who is not a on a defective sidewalk,it was held that no deduction riparian proprietor taking water from the stream, I should be made from the damages on account of the can maintain an action for an injunction, although prolongation of the plaintiff's disability by reason I am not damnified. Well, that is a very startling of his predisposition to inflammatory rheumatism. proposition, and one would like to see some author- Cassoday, J., said, citing Oliver v. La Valle, 36 Wis. ity for it. It goes to an extent which is bordering 592; Stewart v. Ripon, 38 id. 584; Brown v. Ry. on the absurd. According to that, if I am a riparian Co, 54 id. 342; S. C., 41 Am. Rep. 41: “In one of proprietor at the mouth of the Mississippi, and these cases the plaintiff was allowed to recover insomebody a thousand miles up diverts the water, creased damages by reason of an organic tendency although not to my detriment, I can obtain an in- to scrofula in his system and in each of the others junction. That is ridiculous. Let us see what the by reason of a miscarriage in consequence of the cases come to, and whether they afford any coun- injury. In the Brown case the distinction was 'made tenance for a proposition of that kind. When they between actions for tort, where the wrong-doer is are looked at they do not do any thing of the sort,
held liable for all injuries naturally resulting directly The case of Stockport Waterrorks Company v. Potter from the wrongful act, though unforeseen, and acsimply decides that the grantee of a riparian pro- tions for the breach of contract, where the damages prietor must take the water as he finds it. If it is are limited to such as arise naturally from such dirty when it comes to the mouth of his pipe, he breach of contract itself, or from such breach comcannot complain of those who have dirtied it. He mitted under circumstances in the contemplation of has not the rights of a riparian proprietor. The case
both parties at the time of the contract, as in Flick does not decide that the licensee or grantee of a
v. Wetherbee, 20 Wis. 392; Richardson v. Chynoweth, riparian proprietor cannot take some water from the 26 id. 656; Candee v. Western Union T. Co., 34 stream if he hurts nobody. Such a proposition id. 471; S, C., 17 Am. Rep. 452; Walsh v. Railway strikes me as monstrous. In Ormerod v. Todmorden Co., 42 Wis. 23; Hill v. Chipman, 59 id. 218; Had Joint Stock Mill Company, the decision was that the ley v. Baxendale, 9 Exch. 341; Hobbs v. London, etc., grantee of a riparian proprietor could not take water R. Co.
, L. R. , 10 Q. B. 111; Horne v. Midland Rý. Co.
, and return it in a state so as to do injury to those L. R., 8 C. P. 131; Joncs v. George, 48 Am. Rep. below him. The argument there was that he could, 280; Bagley v. Cleveland, etc., R. Co., 30 Alb. Law. provided he was doing that which was reasonable. 1.490. The rule applicable to contracts thus quoted The stress of the contention was that he had all the is taken from the opinion of the court in the recent rights of a riparian proprietor. But neither of case of Hamilton v. Magill, L. R. 12 Ir. 202, and is those cases decides that a licensee, or a grantee of there said to be a more accurate statement than is a riparian proprietor, cannot take any water from found in Hadley v. Baxendale. To the same effect the stream. They decided nothing of the sort, nor are the notes to that case in Sherley's Lead. Cas. did they warrant any such inference. Yet unless 227–230, and Harvey v. Connecticut, etc., R. Co., we go that length, this argument in support of the 124 Mass. 425; S. C., 26 Am. Rep. 673. See also plaintiff's case cannot be sustained. The argument the late case of McMahon v. Field, L. R., 7 Q. B. cannot be maintained unless we say that a riparian Div. 595, where the plaintiff recovered on contract proprietor cannot allow anybody to take any water for the injury to his horses, who caught cold from out of a stream, whether anybody is injured or not. unnecessary exposure to the weather.
In that case It seems to me it would be monstrous to say any Hobbs v. Railway, is severely criticised and narrowly
limited, if not entirely overruled. The distinction and provided it be relevant to the case (3) (b), or altaken in the Brown case has been recognized in though it may render him liable to a civil action (4) (C). several of the more recent cases, and in some of them
1. In the course of a trial a witness is asked if that decision is expressly sanctioned. Baltimore, he ever committed adultery with a certain woman. etc., R. Co. v. Kemp, 30 Alb. Law J. 92; S. C., 61
improper had passed between a witness and the prisoner was Md. 74, 619; Cincinnati, etc., R. Co. v. Eaton, 94 not allowed to be put to the former, In a note to this case Ind. 474; S. C., 48 Am. Rep. 179; Ehrgott v. Mayor,
it is said: “The law as to what questions may be asked in
cross-examination, the answers to which have a direct ten96 N. Y. 281; S. C., 48 Am. Rep. 622; Tice v. Munn, dency to degrade the witness, is very obscurely laid down in 94 N. Y. 621 ; Murdock v. Boston, etc., R. Co., 133
the books; and if they are permitted to be asked, there is
equal obscurity whether the witness shall be excused from Mass. 15; S. C., 43 Am. Rep. 480; Beauchamp v. answering. As to whether a witness is compellable to answer
degrading questions, in the case of Cooke, and in the case of Saginaw M. Co., 50 (Mich. 163; S. C., 45 Am. Rep. Sir John Freind for high treason, Treby, C. J., laid down that 30; McMahon v. Field, L. R., 7 Q. B. Div. 591; and
a witness is not bound to answer questions "that will subject
him to penalties or infamy! In Layer's case the judges apsee Mr. Irving Browne's notes, 47 Am. Rep. 381, pear to be of the same opinion. All these cases are reported 387; 41 Am Rep. 53, 58. See also as bearing lowed to be put in the case of Maelride v. Maelride, 4 Esp;
at large in the State trials. As to what questions will be alupon the question, Pittsburg, etc., R.Co. v. Staley, 1 Rep., which was an action of assumpsit, a female, who had
proved the plaintiff's demand, was cross-examined as to Am. Law J.(Ohio) 136; S. C., 30 Alb. Law J. 110; whether she was not in keeping of the plaintiff, and Lord Lewis v. Flint & P. M.Ry. Co., 19 N. W. Rep. 744.
Alvanley overruled the question on the ground that a witness
cannot be asked questions to degrade his character; and in In actions on contracts of carriage it has often been Rex v. Lewis, 4 Esp. Rep., which was an indictment for an
assault, Lord Ellenborough would not permit the prosecutor held that a corporation or party could not by con. to be asked whether he had been in the house of correction, tract wholly exempt itself from all liability for in
However, on the other hand, there are the cases of the King
v. E. Edwards, 4 Term Rep. 440, and that of Doctor Watson, jury inflicted by its own negligence. Richardson v. tried at the bar for high treason. The first was an examinaChicago & N. W. Ry. Co., 56 Wis. 347; Canfield v.
tion of persons who were tendered as bail for the prisoner,
who was charged with a larceny. The court allowed one of Baltimore, etc., R. Co., 45 Am. Rep. 268; Sager v.
them to be asked if he had ever stood in the pillory for per
jury; and in the latter case Mr. Wetherell, for the prisoner, Portsmouth, etc., R. Co, 50 Am. Dec. 659. In such asked a witness named Cartles, all sorts of degrading quescases the damages recoverable cannot be within the tions. In practice, the asking of questions to degrade the wit
ness is regulated by the discretion of the learned judge in contemplation of the contract; for they are recov- each particular case; for in the case of Rex v. John Barnard
(infra), an accomplice was asked (unchecked by the learned ered in spite of it. In McMahon v. Field, one of
baron) whether he had ever been charged with felony? How the judges went so far as to say that 'the parties many times?
Whether he had been charged with uttering
counterfeit coin? With stealing clothes! With stealing fowls! never contemplated a breach, and the rule should And whether he had not been in gaol at Gloucester And rather be that the damage recoverable is such
flogged at Wingate? To each of which questions the witness
very reluctantly gave a distinct answer, admitting nearly the as is the natural and probable result of the breach
whole of them. This man, it may be said, was an accom
plice, and therefore was open to attack. But in Rex v. James of contract.' To the same effect is Ehrgott v. Gilroy and Dennis English, Stafford Lent. Ass., 1823, before Mayor, 96 N.Y. 280. In this New York case the court Bosanquet, Serjt., the counsel for the prisoners, who were say: When a party commits a tort resulting in a
indicted for highway robbery, was allowed to ask a witness,
who stated that he had been a constable, whether he had not personal injury, he cannot foresee or contemplate
been turned out of office for misconduct toward a prisoner? the consequences of his tortious act.
Which he, very much against his inclination, admitted. A city may leave a street out of repair, and no one can question which, if answered either way, will benefit your clianticipate the possible accidents which may happen, ent, is always a question worth putting. The question in the
principal case appears to be of this kind. It was "whether
Thé or the injuries which may be caused.
at the house any thing improper passed between him and the true rule, broadly stated, is that a wrong-doer is prisoner? If he said “yes," it degraded him with the jury: liable for the damages which he causes by his mis- if he said " no," nobody who heard the case would believe conduct.' 96 N. Y. 281; S. C., 43 Am. Rep. 480." it; and it would shake his general credibility. If overruled,
it induced the jury to believe that such was the fact, and that
the prosecutor, if allowed, would have admitted it. In some RULES AS TO THE PRIVILEGES OF WIT
cases it is held that it is in the discretion of the court to allow NESSES.
a degrading question to be put to a witness. State v. Belausky,
3 Minn. 247 (1859). In others that such questions need not be IV.
answered by the witness. Vaughan v. Perrine, 3 N. J. (I.)
534 (1811); Respublica v. Gibbs, 3 Yeates, 429 (1802); Galbreath (C.)
v. Eichelberger, id. 515 (1803). By statute in Iowa a witness 1. M., a stockbroker, being interrogated as to
is not compelled to answer a question which will expose him
to "public ignominy." This term is construed to mean pubcertain transactions between himself and S., re
lic disgrace and dishonor, and under this statute it has been fuses to answer on the ground that it might sub- held that a woman in an action for seduction is not compellaject him to the penalties of the stock-jobbing act. ble to answer whether she has had intercourse with men M. cannot be compelled to answer.(1)
other than the defendant, Brown v.Kingsley,38 Iowa,221(1874).
(3) Howel v. Com., 5 Gratt. 664 (1848); State v. Patterson, 2 RULE. But a witness may be compelled to give evi- Ired (L.), 346 (1842); Sodusky v. McGee, 5 J. J. Marsh. 621 dence although it may degrade or disgrace him (2), (1831); Wroe v. State, 20 Ohio St. 470 (1870): Marx v. Bell, 48 subject to the former rule as to crimes and penalties ;
Ala. 497 (1872); Smith v. Castles, 1 Gray, 108) (1854); Hill v.
State, 4 Ind. 112 (1853); State v. Staples, 47 N. H. 113 (1866); (1) Short v. Mercier, 3 Mac. & G. 205 (1851); and see Cloyes Harper v. Indianapolis, etc., R. Co., 47 Mo. 580 (1871); Taylor v. Thayer, 3 Hill, 564 (1842); Poindexter v. Davis, 6 Gratt. 481 V. Jennings, 7 Robt. (N. Y.) 58 (1867). (1850).
(4) Judge of Probate v. (Green, 1 How. (Miss.) 148,(1834); (2, Kirschner v. State, 9 Wend. 140 (1859). The earlier En- Hays v. Richardson, 1 G. & J. 366 (1829); Taney v. Kemp, 4 H. glish cases are somewhat contradictory. In R. v. Pitcher, 1 & J. 348 (1818); Harper v. Burrow, 6 Ired. (L.) 30 (1845); Jones C. & P. 85 (1823); 11 Eng. C. L., a question whether any thing v. Lanier, 2 Dev. 481; Conover v. Bell, 6 T.B, Monr.157 (1827).