E. Warner, Albion; Edward O. Woods, Marion, S. C.; Abram Newcomb, Luzerne. The class day exercises were held at the Law School building, on the evening of the 27th inst., and were as follows: President's Address by J. P. Philip; Poem by H. D. Stevens; History by F. L. Michael; Oration by F. M. Andrus; Prophecy by C. M. Reed. These exercises also were of unusual interest. The Alumni had a business meeting and a banquet on the 28th inst. NEW BOOKS AND NEW EDITIONS. GILBERT'S THE RAILROADS AND THE COURTS. Under this title Mr. Hiram T. Gilbert, of Ottawa, Illinois, writes and himself publishes the breeziest book that has blown across our path in many a day. It is good warm weather reading, and it is for reading rather than for reference. It consists in a very ingenious, industrious, and vigorous exposure of the inconsistencies of the courts of Illinois in railroad cases. The author apologizes for his own shortcomings as follows: "Certainly, when the Supreme Court are compelled to acknowledge, as they did in the Wilson case, 94 Ill. 426, that in the Ferguson case, 90 Ill. 510, they had unanimously overlooked that provision of our Constitution which declares that the Circuit Court shall have original jurisdiction of all causes in law and equity, the errors of one humble member of the profession, whose knowledge of the law is derived chiefly from the Illinois reports, should be viewed with great charity." But although the book will be soothing to the lawyers, the author makes things hot for the judges. He lays down some forty "rules," like Wigram and Lawson, and in almost every instance he lays down a rule embodying the precise contrary immediately afterward, and fortifies both by citations from the Illinois reports. Thus: "Rule Thirtieth. Errors in the admission of evidence will be cured by instructions to the jury to disregard such evidence." (64 Ill. 334.) "Rule Thirty-first. Errors in the admission of evidence will not be cured by instructions to the jury to disregard such evidence." (66 Ill. 222.) Again: "Rule Fourteenth. An instruction should not state the law in the language of the statute." (96 Ill. 42.) "Rule Fifteenth. It would be unheard of to reverse because an instruction was given in the language of the statute." (97 Ill. 74.) Once more: Rule Third. The jury should not be left at liberty to speculate on probabilities, but should be required to be satisfied by the greater weight of evidence." (65 Ill. 195.) "Rule Fourth. The jury should only be required to believe from the evidence, and should not be required to be satisfied from the evidence." (83 Ill. 85.) Of course, we cannot vouch that the author has correctly deduced these rules in every instance, but in view of recent inconsistencies in our own State-not in railroad cases, however-we can easily believe that he has done so. At all events, he has constructed a very trenchant and damaging piece of criticism, and if we had not promised ourselves to keep still about codification from now till next winter, we should say, under our breath and under favor, it shows the crying need of a Code. DUNNING'S REPORTS. Reports of Cases argued and adjudged in the court of King's Bench in the latter part of the reign of George the Second. By John Dunning, Lord Ashburton. With Notes of Reference to English and American cases, by Charles G. Delano. Boston, George B. Reed, 1885. Pp. x, 65. This is the most elegantly printed volume of law reports since the issue of "Star Chamber Cases," by Soule and Bugbee. The cases were decided about 1753-4, and are of slender interest. We do not understand that Mr. Dunning argued and adjudged them, although the title-page says so. There is a good por trait of the reporter prefixed. THE COURT OF APPEALS DECISIONS. HE following decisions were handed down Tuesday, June 2, 1885: Judgment reversed, new trial granted, costs to abide event-Kathleen Hickey, infant, etc., respondent, v. John P. Taaffe, appellant.-Judgment of Supreme Court and Court of Oyer and Terminer reversed and new trial granted-People, respondent, v. James L. Lyon, appellant.Order of General Term, so far as it modifies that of Special Term, reversed. Order of Special Term affirmed with costs in all courts-People ex rel. M. F. Collins, appellant, v. John D. Spicer, comptroller, etc., respondent.-Judgment reversed, new trial granted, costs to abide event-Charles W. Cook, infant, etc., respondent, v. LaLance and Grosjean Manfg. Co., appellant.Order of General Term reversed and certiorari quashed in first case, order af firmed in the other-People ex rel. part of Cayuga Iudians residing in Canada, respondents, v. Board of Commissioners of land office, appellants. Same v. State of New York (Board of Claims).--Judgment affirmed with costs-Health Department of New York, appellant, v. James Purdon, respondent.-Judgment reversed, new trial granted, costs to abide eventAlfred Knower et al., respondents, v. W. H. Reynolds, appellant. As much of judgment of General Term as awards judgment for plaintiff for six cents damages should be reversed and new trial granted, costs to abide event-Eliza A. Thomas, executrix, etc., appellant, v. New York Life Ins. Co., respondeut.Judgment affirmed with costs-Martin T. McMahan, receiver of taxes, etc., respondent, v. Isaac S. Platt, appellant.Order affirmed with costs- People v. Western Union Tel. Co., appellant, v. Commissioner Taxes, etc., respondents. Judgment affirmed with costs-Susan E. G. Balcom, executor, etc., appellant, v. State of New York, respondent.-Affirmed with costs-First National Bank of New York, respondent, v. Continental National Bank of New York, appellant. -Judgment affirmed with costs-John W. Sanderson, appellant, v. County of Kings, respondent.— Judgment affirmed with costs-Lewis N. Putnam, respondent, v. N. Y. C. & H. R. R. Co., appellant.Motion to recall remittitur. Denied with $10 costsAustin D. Moore v. Joseph Hegeman, NOTES. Ex-Judge Dillon is to deliver the address before the Bar Association of South Carolina next December. His address at Saratoga last summer was one of the most original, vigorous and interesting ever made.Behold how they love one another! The Texas Law Journal, which has "borrowed our peculiar copyrighted title-page device, without asking leave, thus faintly encourages the Texas Court Reporter, a new publication in that State: "The first issue bears a very respectable appearance, though its typographical execution could be much improved by the omission of a few of the many errors appearing therein, and the meagerness of its head notes to cases furnish a very poor indicia to the contents of the opinious."- -A bad case of mixed metaphor. The London Law Journal tells about "A charge coming home to roost." The Albany Law Journal. for Munsell and say THE ALBANY, JUNE 13, 1885. CURRENT TOPICS. juror Munsell has been discharged by the General Term, on the ground that his offense was not a contempt, but an indictable misdemeanor if any thing. And now, The Nation, after denouncing Judge Van Brunt for his tyranny in committing Munsell, denounces the General Term for the reasons which they give for discharging him. Verily, as we have said before, these newspapers are hard to suit. It is nonsense for them to defend Munsell. It is incredible to suppose that so bright a man did not know that he was going out of his appointed way in taking that private view of the premises. He is no fool, as his vicarious communications to the newspapers show, and it will be impossible for him to make unprejudiced people believe him such a fool as he tries to make himself appear. "Poor man," says The Nation. Not at all. Simply an officious, over-busy, would-be influential man, sharper than his fellows, and anxious to be sharper than the public prosecutors and the courts. He deserved just such a punishment as he got not that punishment, perhaps so the General Term say, and they are probably right-but an exemplary warning, and we hope he will place what he got to the account of what he ought to have had. It would probably be unjust now to inflict a conviction under indictment upon him, although he may technically deserve it, but if he is a wise man, as he would fain have us think he is not, let him reflect on what he deserved and call it square. But The Nation says: "It is, of course, greatly to be regretted that such acts as Judge Van Brunt's can be committed with impunity in a community like this. In a more sensitive state of public opinion it would not pass unpunished. We print below an account of the impeachment of a Federal judge for abusing his discretionary power by imprisoning a man for a single day. But impeachment is too slow and expensive a process in this State to be attempted by a private individual without aid from the bar." The case of Peck is the one alluded to. Under the decision in Lange's action against Judge Benedict, Munsell could not maintain an action for damages, and we very much doubt that there is even a colorable ground of impeachment. There is a great difference between the two cases. Benedict had no authority to do any thing more - he had exhausted his power; Van Brunt certainly had authority to do something- he had not exercised his power. We are not certain that even Benedict ought to have been impeached, assuming that a judge ought to be impeached for a single grossly wrong act; but we confess his case comes pretty near the line. Van Brunt's does not approach it. If The Nation were not too hot for reflection, it would VOL. 31 No. 24. extend to Van Brunt the same charity which it feels 64 poor man" in his behalf also. But again we say, to talk of impeachment is too nonsensical even for the newspapers. The Century for June has seven columns of fine type, partly editorial and partly communicated, on the Delays of the Law, in which there is absolutely not one new idea nor a novel setting out of an old one. The well-known causes are adduced, and the well-learned arguments are urged, and the wellworn patience of suitors and readers is once more tried. It is indeed amusing to hear a man in such hackneyed and long-drawn phrases reproach the judges for writing too long opinions. These critics We may be set a very bad example for the courts. allowed to say, at the risk of being accused of like vain repetition, that Mr. Hill, in his communication, unquestionably hits the two weak points of the administration of justice - defects in the jury system and fewness of judges. These may be subordinate causes, and these principal causes may well be dwelt upon and elaborated, but after all, here we have it, and the long discussion, or rather assertion, of The Century does not enlighten nor enliven. What we need and want is an oracle. Shall we find it in the report to the American Bar Association next August? We hope so, but we shall see. We give a great deal of space this week to "Important institutions in relation to Citizenship, Domicile and Marriage," a correspondence between the Federal Secretary of State, by Dr. Wharton his legal adviser, and the Attorney-General of the United States, on these important topics. We regard the modifications which have been made as eminently judicious, and they show the wisdom of the State Department in calling to its assistance so distinguished, so learned, and so influential a jurist as Dr. Wharton. The Indiana Law Magazine says: "Having faithfully performed their duties in aid of the Supreme Court, the commissioners, at the close of their legal term, have gracefully retired to the ranks again. Judge Black has opened a law office at No. 243 West Washington street, in Indianapolis; Judge Franklin is successfully recruiting his health for the present in the corn-field; and Judges Best, Bicknell, and Colerick have re-entered practice respectively at Waterloo, New Albany and Fort Wayne. We wish them all success." So do we. But why did not the State retain them as proper judges? It is very likely to need more judges; indeed, the need seems present. Commissions are unpopular, deservedly so. The Indiana Commission has done as well as any that we know of, but the decisions of commissions are doomed to have scant popular respect, as the decisions of "journeymen" judges. Popular respect is essential in this matter. There are other objections to commissions, which we need not specify now. Again we wish the down-coming judges success. But in the present condition of legal business we suspect that Judge Franklin will have the best practice, although it is uphill work. It is rather difficult to say any thing new, especially in the form of good advice," in an address to graduating students; but Mr. Arthur Rodgers contrived to do it in his address at Hastings College of the law, at San Francisco, last month. He said: "Do not locate "-(we wish he had given us something new instead of "locate ")"in the place of your childhood or youth. Life is too valuable to waste in developing respect for your ability among your school fellows and relatives. Some patronizing friends might indeed sufficiently confide in your youthful ardor to place in your hands ancient promissory notes for collection, or claims to Mexican grants long since barred by the statute of limitations, or claims against debtors who have furnished the initial practice of every lawyer of the generation. But there is more welcome for a young lawyer, more manly encouragement from strangers, than all the condescending relatives and patronizing friends of your youth." He also well says: "There are likely to be as many principles of law involved in a ten-dollar suit and more danger of losing it than an action involving thousands of dollars on the same subject." In speaking of the recent defeat of Judge Cooley, the American Law Review cites this journal as pointing "to his defeat as an evidence of the evils of electing judges by the popular vote." We protest against this implication. We are in favor of the popular election of judges, and only spoke of the result in Judge Cooley's case as likely to prove a strong argument for the opponents of the system. The people make the best choice in the greater number of instances, and as for this miscarriage we can only say, with the Review, that "it is the result of one of those popular ebullitions which are liable to overthrow the wisest measures and the wisest men." But it would require a great many such cases to convince us that it is good policy for the judicial department of the government to be selected by the executive. Judge Elliott, of Indiana, recently delivered an interesting address at the commencement of the Law School of De Pauw University, on the Development of Jurisprudence. Of priestly law-making he says: "It is not doubted that the best system of jurisprudence is that system, which, in its fnndamental principles, is in close harmony with the doctrines of pure religion, but while this is true, it is also true that a jurisprudence framed and administered by priests is never a good one. Priest government is always an evil. Theology is a noble science, but the theologian is seldom a wise lawgiver or a just judge. Theology and jurisprudence are essentially distinct sciences, the one governs the spiritual, the other the civil affairs of mankind. The union of church and State is an evil alliance. A great stride onward was made in the development of jurisprudence when it was emancipated from the thraldom of theologians and the divorce between the two sciences was decreed to be absolute. The priesthood cannot be too highly respected within their spheres of duty nor the holy office too highly exalted in public opinion, but makers and judges of law the ecclesiastics can never be without prodigous evil resulting to society." He says of codification: "The common law system of special pleading was the product of speculative and illiberal thought. Its rules, like many others of the harsh technical doctrines of the ancient law, have fallen before the spirit of progress. A real and a lasting stride in tho progress of development was taken by substituting the code system for that of the common law." He dwells largely on precedents, observing among other things: "It is the power of precedent that produces certainty and dispels doubt and confusion. Without precedents judges would, in the great majority of cases, be invested hand is an evil of great magnitude. Bacon justly with arbitrary power, and arbitrary power in any observes: For as that law is ever the best which leaves the least to the breast of the judge, so is that judge the best who leaves least to himself.' Precedents are potent agencies in producing the system which Bacon declares the best. Without them we should have cases decided according to arbitrary rules, and these rules as various and different as the notions of the different judges." The whole address is characterized by vigor, sound sense, liberal learning, and a graceful style. אן NOTES OF CASES. N Decker v. Gaylord, 35 Hun, 584, it was held that communications made in good faith and in a proper manner to a school commissioner by a resident of the district, charging the woman then teaching in the district with unchastity and the use of profane and obscene language, are privileged; that the presumption is that the communication is in good faith, and the burden of proving actual malice is on the opposite party; and that the falsity of the charge is not of itself sufficient to raise an inference of malice. The court said: "The defendants' testator was lawfully permitted, in good faith and in a proper manner, to make communication to the commissioner in respect to the conduct and moral character of the school teacher of his district, and to state what he honestly believed to be the truth, although defamatory of her character. And the presumption is that a communication made by a person authorized by his relation to the subject, or to the society interested, to a person or body having authority to act in the premises, is made in good faith, and his liability to the party aggrieved is dependent on actual malice which the plaintiff in an action therefor assumes the burden to prove. The falsity of the | charge is not sufficient to raise inference of malice. proof on part of the defense was, inter alia, that the Lewis v. Chapman, 16 N. Y. 369; Fowles v. Bowen, ash was below 48 per cent strength; that it was not 30 id. 20; Ormsby v. Douglass, 37 id. 477; Hart v. marketable, but valueless and useless, not being in Gumpach, L. R., 4 P. C. 439; 4 Moak Eng. 138, 156; fact the article it was sold for. The court below Laughton v. The Bishop, etc., L. R., 4 P. C. 495; 4 refused to entertain the offer, and ordered judg Moak Eng. 162, 174; Harwood v. Keech, 4 Hun, ment on the ground that the defendant had shown 389." "The defendant therefore had the right to neither an express warranty nor fraudulent reprehave the jury advised what was required to render sentation, and that nothing short of this could prehis communication to the commissioner a privileged vent the plaintiff's recovery. In this case, like that one; that it was not dependent on the truth of the in hand, there was neither inspection of the goods words spoken, but only on his belief that they were nor opportunity for such inspection, so that they are true and the good faith of the communication. in all particulars similar. A like case is that of This proposition is so well settled that no discussion Warren v. Philadelphia Coal Company, 2 Nor. 437, of it as applied to this case seems necessary. Hal- in which Mr. Justice Woodward affirms that there stead v. Nelson, 24 Hun, 395; O'Donaghue v. McGov- is no rule more firmly imbedded in our jurispruern, 23 Wend. 26; Bradley v. Heath, 12 Pick. 163; dence than that which governs the rights of vendors Gassett v. Gilbert, 6 Gray, 94; Hatch v. Lane, 105 and purchasers in an ordinary contract of sale of Mass. 394; Vanderzee v. McGregor, 12 Wend. 545; personal property. In such a contract the vendor Streety v. Wood, 15 Barb. 105; Whiteley v. Adams, is subject to no implication of a warranty of the 15 C. B. (N. S.) 392; Dawkins v. Lord Paulet, L. quality of the article sold.' He also adds: 'The R., 5 Q. B. 102. The relation of the defendant to doctrine of the common law, as it was settled in the school district and school enabled him to deem Chandelor v. Lopus, Cro. Jac. 4, has been constantly it his duty to communicate to the officer having the and uniformly applied.' The same doctrine is held power and charged with the duty to act upon by Mr. Justice Mercur, in Whitaker v. Eastwick, 25 charges made against the moral character of the P. F. S. 229, and also in Eagan v. Call, 10 Casey, 236. teacher, and make the result of his examination ef- As has been said, this is the common law doctrine fectual either to sustain or disqualify the latter to conand is found in the case of Chandelor v. Lopus, in tinue as such in the district. The welfare of district which case the declaration set forth that the deschools and of school districts requires that the fendant, a goldsmith, having skill in precious honest and fair exercise of this privilege should stones, had a stone which he affirmed to Lopus to have protection; and the law, as it should, will con- be a bezoar stone, and sold it to him for a hundred demn the act and afford redress when under the pounds; ubi reverâ, it was not a bezoar stone.' Unguise of the privilege the opportunity is taken to der the pleadings judgment was given for the plaintvilify and defame a teacher for purposes selfish and iff in the King's Bench, but was reversed in the malicious. Harwood v. Keech, 4 Hun, 389. But when Exchequer Chamber on the ground that the bare the relation to the district of the parties to the comaffirmation that the stone was a bezoar, without munication, and their duties, are those before men- warranty, was no cause of action. This is perhaps tioned, the presumption arises that the charges are an extreme case, for here the article was not even made in good faith and with a sense of duty unless in specie what it was sold for, nevertheless, as we circumstances attendant or extrinsic tend to the have seen, it was literally followed in Wetherill v. contrary, and the burden is on the plaintiff to im- Neilson, supra, as it was in Seixas v. Woods, 2 Caines, pugn by evidence the motives of the party making 48, and the latter was followed in New York in them. Shurtleff v. Stevens, 51 Vt. 501; S. C., 31 Am. Holden v. Dakin, 4 Johns. 421. We understand, Rep. 698; Brow v. Hathaway, 13 Allen, 239; Thorn indeed, that both in England and New York there v. Moser, 1 Denio, 493; Taylor v. Hawkins, 16 Ad. has been to some extent a departure from the rul& Ell. (N. S.) 308, 321; Fowles v. Bowen, 30 N. Y. 20;ings of the above cited cases, but in Pennsylvania Somerville v. Hawkins, 10 C. B. 583, 590; Harris v. Thompson, 13 id. 333." In Ryan v. Ulmer, Pennsylvania Supreme Court, January, 1885, 16 Week. Notes Cas. 121, it was held that where there is no knowledge on the part of the vendor of goods of their defective quality, although no opportunity of inspecting them is given the vendee, the sale itself raises no implied warranty of quality or even of merchantability on which the vendee can sue if the goods prove worthless. This was on a sale of pork. The court said: "The case of Wetherill v. Neilson, 8 Har. 448, is directly in point, and would have to be overruled were we to sustain the court below. There the bill of sale was of '35 casks of soda ash, 48 per cent.' The offer of | there has been a steady adherence to the common law doctrine without any greater qualification than that found in Borrekins v. Bevan, 3 Rawle, 37, where it was held that the goods sold must be the same in kind as those mentioned in the contract of sale." Turnkey and Sterrett, JJ., dissenting. In Griffith v. Charlotte, C. & A. R. R. Co., Supreme Court of South Carolina, April 22, 1885, 19 Rep. 697, where an administrator sued a railroad company for running its trains over the corpse of the intestate, which had been placed on its track, thereby mutilating the remains and destroying the apparel, and a silver watch on the body, held, that the administrator had no property in the corpse, and therefore could not maintain the action as to diligently through the common law reports of England, and have found no case in which the circuit courts have been appealed to in matters connected with the bodies of the dead; on the contrary, their burial, the grave-yards and cemeteries in which they are interred, and the religious ceremonies observed, have been left exclusively to ecclesiastical congnizance, the civil courts universally holding, in the language of Lord Coke, that the 'burial of the cadaver is nullius in bonis.' In some of the States upon this continent, especially in Rhode Island, in Indiana, in Pennsylvania, and New York, the courts endeavoring to escape from this reproach, have held in general terms that the corpse belongs, not to the administrator, but to the next of kin, and that is as far as the cases referred to by appellant's counsel seem to go. In Pierce v. Cemetery Co., 10 R. I. 227; S. C., 14 Am. Rep. 667, it was held that while a dead body was not property in the strict sense of the common law, it is quasi property over which the relatives of the deceased have rights which the courts will protect. In Re Widening Beekman Street, 4 Bradf. 503, it was held that 'the right to bury the corpse and to preserve its remains is a legal right which the courts will protect. That such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin.' In Bogert v. Indianapolis, 13 Ind. 135, it was held that the bodies of the dead belong to the surviving relatives in the order of inheritance as property. In Wynkoop v. Wynkoop, 42 Penn. St. 293, it was held that a wife has no right or control over the body of her husband deceased after burial. The disposition of the remains of the deceased belongs therefore exclusively to his next of kin. That though it was her duty to bury the body, as widow, after interment her right ended.' Upon what authority or established principle of the common law these decisions were founded, even to the extent of legalizing the right of the next of kin, does not fully appear; but they afford no support to the position that the administrator has any control whatever, which is the question here. We have no case in our own reports upon the subject; certainly no case bearing upon the precise point before us, i. e., the rights of the administrator. In the absence of all authority, and looking at the act which authorizes administration and defines the duties and powers of administrators, and describes the property which by operation of law becomes theirs, we are constrained to the conclusion, that so far as this action is founded upon the mutilation of the deceased by the defendant company, whether accidental, willful, or negligent, it cannot be sustained the body, but that he could as to the apparel and the watch. The court said: "Can property, either absolute or qualified, be acquired in a corpse; and especially as involved in the case under investigation, can such property be acquired by the administrator of the deceased?" Citing 2 Bl. Com. 429; 4 id. 235; Jacob's Fisher's Dig.; Bish. Crim. L. § 792; East P. C. 652; Whart. L. Max. 228. "We have been referred to no case by appellant in conflict with this doctrine nor have we been able ourselves to find a case or a single expression in any text-book which affects it in the slightest degree. And that this should be so is not surprising. Because while it is natural that we should all feel that the remains of ancestors and of loved ones should be tenderly watched, and their decent interment carefully guarded, and the mutilation of their dead bodies and the disturbance of their sepulchres severely punished, and while all laws necessary to that end should be passed, and strictly and sternly enforced, yet even for this purpose, to make such venerated remains the absolute property of any one, in the sense of objective appropriation, would be abhorrent to every impulse and feeling of our natures. But can there not be a qualified property in the dead, one which gives control to some one with the view to protection, to decent interment, and to undisturbed repose, while they are dissolving and returning to the dust from which they were created? Can it be that there is no legal guardianship of the dead? And that when the life escapes the body is left, so far as the law is concerned, without protection, even from wanton and malicious depredations, and that those to whom it was bound in life by the tenderest of ties can invoke the aid of no court in preventing its mutilation, and must they resort to violence and force for this purpose? If such be the fact, it is a reproach to our judicial system, and one which calls earnestly for legislative interposition. And yet such seems to be the fact; at least, the matter is left in great doubt, so far as our limited examination of the cases, both in this country and in England, amid the press of our duties, has enabled us to ascertain. Certainly the administrator has no legal control or authority over the dead body of the person upon whose estate he has administered. His entire authority is derived from the act by virtue of which his letters have been granted to him, and that gives him charge only of the goods and chattels, rights and credits which were of the deceased. The body of the intestate belongs to neither of these classes, and there is therefore no law for him to take it in charge. True, he is required to pay as the first of debts the funeral expenses, but it would be a violent assump-by the plaintiff, and that his honor, the circuit tion to conclude on that account that he becomes the legal custodian of the remains; or even if he should, it could only be so as to the funeral and burial, because the expenses extend no further; they stop at the grave. The question would then arise, who could legally protect beyond that point, and in whose behalf could the law be invoked to redress an invasion of the tomb? We have looked judge, was correct in so holding. This however does not apply to the clothes in which the body was clad, and the silver watch upon the person; as to these the administrator was the legal owner, and his appointment, though made after the occurrence, reached to the death, his title commencing at that time. As to these, then, the action was maintainable, and we think that his honor was in error in not |