Слике страница

affect the jurisdiction of the court wbich renderid it. -Loited States v. Eisenbeis, U. 8. C. C. of App., Ninth Circuit, 112 Fed. Rep. 190.

96. JUDGMENT-Reply to Answer of Res Judicata.A reply to an answer of res judicata, in an action against an indoreer on a note, held not subject to de. murrer as alleging no facts which could not have been presented and considered in a prior action on the note.- Peck v. Easton, Conn., 51 Al!. Rep. 134.

97. JUDGMENT-Right to Lien.- Where a judgment debtor has a bare legal title of land, without interest, and the equitable title is in apother, the lien in equity does not attach.-Dalrymple v. Security Loan & Trust Co., N. Dak., 88 N. W. Rep. 1033.

98. LANDLORD AND TENANT-Re-entry for Failure of Lfsgee to Comply with Coveparts. – A fallure by a lessee to reasonably comply with a covenant of the lease in which the lessor has a valualle interest con. stitutes a breach of condition which warrants a re. entry, whether such failure is due to inability or merely to neglect.-Boston El. Ry. Co. v. Grace & Hyde Co., U. S. C. C. of App. Firet Circuit, 112 Fed. Rep. 279.

99. LIFE INSURANCE-Effect of Folse statement in Application.- A false statement in an appl cation for life insurance as to the time when applicant was last treated by a pbysician, and the disease for wbich he was last treated, is fatal to recovery on the policy.Priestly v. Provident Sav. Co., U. S. C. C.. E. D. Pa., 112 Fed. Rep. 271.

100. LIFE INSURANCE-Rights of Assigner.-Assignee of a pa d up lle policy held to have acquired the beneficial title thereto, though neliherihe policy por the instrument assigning it wire ever delivered to ber.-Appeal of Colburn, Conn., 51 Atl. Rep. 139.

101. LIMITATION OF ACTIONS-Action Against Insolv. ont Corporation.- The statute of limitations does not run against a person claiming damoges for injuries ipflicted by an insolvent corporation until its officers indicate to the claimant an intention to repudiate the trust created by law.- Scott v. Farmers' & Merchants' Nat. Baik, Tex., 66 S. W. Rep. 485.

102. MANDAMUS Motion to Supersede a Writ of Mandamus. - · A motion to supersede a writ of man. damus admits the facts alleged in the relation.-State V. Supervisors of Town of Ciifton, Wis., 88 N. W. Rep. 1019.

103. MARRIAGE-Common-Law Marriage.- A contract between a man and woman competent to contract to become husband and wile, made in good faith and lol. lowed by consistent and notorious matrimonial cohabitation, constitutes a valid marriage at common law.-Davis v. Pryor, U. 8. C. C. of App., Eighth Cir. cuit, 112 Fed. Rep. 271.

104. MASTER AND SERVANT – Assumption of Risk. Complaint showing lailure to enforce rules of employ. ment, whereby plaintiff was injured, and tbe plaintiff had full knowledge of such violation, hold to show that be bad aseumed the risk. - Reberk v. Horpe & Danz Co., Minn.,88 N. W. Rep. 1003,

105. MASTER AND SERVANT- Assumption of Risk.-A freight brakeman, ordered by a railroad company to brake on a pa:serger train having cars with mig. matched couplers, held not to hide assumed the risk of such defective applianceg.- Southern Pac. Co. v. Winton, Tex., 66 S. W. Rep. 477.

106. MASTER AND SERVANT- Rulis of Master.-In an action against a railroud company for negligence of a conductor, whereby a brakeman was killed, it was not error 10 receive in evidence a rule ol defendant re. quiring conductors to take every precaution for the protection of their trains.-Peail v. Omaha & St. L. R. Co., Iowa, 88 N. W. Rrp. 1078.

107. MORTGAGES — Foreclosure by Advertisement.Where mortgagees take possession without consent under color of foreclosure by advertisement, which was illegal, such possession was wholly unlawful.MiClory v. Ricky, N. Duk., 88 N. W. Rep. 11 42.

103. MONICIPAL CORPORATION8-Failure to Carry Out Original Plan of Street Paving.-A petition for street paving signed by a property owner, and the paving of the street by the city in a manner different than called for by the petition, held not to require the property owner to pay his proportion of the expenses.-Winne bago Furniture Mig. Co. v. Fond du Lac County, Wis., 88 N. W. Rep. 1018.

119. MONICIPAL CORPORATIONS – Liabilily to One Riding Bicycle on Sidewalk. - Where plaintiff was rightfully riding his bicycie on a sidewalk, the city would be liable if he was injured because the walk wag not reasonably sale for pedestriang - Gagnier v. City of Fargo, N. Duk., 88 N. W. Rep. 1030.

110. MUNICIPAL CORPORATIONS - Penalty Against Keeping Dog.- Wnere a city ordinance denounced a penalty against any one baving an unlicensed dog, it was not neces

in the complaint Ip an action for violation thereof that delendapt was a rebi. dent of the city, although another section of the ordi. Dance confined the right to license dogs to reside nis. -State v. Nohl, Wis., 88 N. W. Rep. 1004.

111. NEGLIGENCE – Allegation of Negligence.-In an action for personal injuries, an allegation that ibe acts complained of were negligently done will not render the complaint invulnerable to demurrer, where it appears from the facts charged that the acts charged were not negligent. – Like Shore & M. S. Ry. Co. v. Butte, Ind,, 62 N. E. Rep. 647.

112. NEGLIGENCE-Contributory Negligence.-Where the conductor of a train beckoned to a passenger as they were pearing his station, and the passenger going to the door, swung off in the dark, the carrier was not liable.- Illinois Cent. R. Co. v. Hanberry, Ky. 66 S. W. Rep. 417.

113. NEW TRIAL - Letter Book as Cumulative Evi. dence.-Books which would only assist the letters of their keeper, read on the trial, held to be cumulative evidence, and therefore pot ground for new trial.Bridges v. Williams, Tex., 66 S. W. Rep. 184.

114. PARENT AND CHILD-Liability for Support. -A father whose conduct has rendered it necessary to de. prive him of the custody of his child is not thereby re leased from his duty to support him.-Leibold v. Lui' bold, Ind., 62 N. E. Rep. 627.

115. P'ARTIES-Failing to Demur to Delect of Parties. -Under the statutes of Kansas a defendant capnot object to a defect of parties plaintiff on the trial, where no objection was taken by demurrer or by his answer. – Buckingham v. Dake, U. 8. C. C. of App., E'ghth Circuit, 112 Fed. Rep. 258.

116. PARTNERSHIP – Rights of Surviviog Partner. Contract purporting to be by two individuals doing business under a firm name, and signed in such firm namo, held not to be act of surviving partner, though the one not signing was the surviving partner.- Baird v. Harper, Del. 51 Atl. Rep. 111.

117. PLEADING-Filing Amended Petition After Trial. -The court did not abuse its discretion ip refusing to permit the fling of an amended petition, rot cffe rid until after one trial had been had.- Board of Interpol Improvement for Lincoln County v. Moore's Admr., Ky., 66 S. W. Rep. 417.

118. PRINCIPAL AND AGENT – Liability of Agent for Accepting Unauthorized Consideration.-A principal in an action against an agent for damågon for aceept. ing less than the agreed consideration for property sold must plead the return or offer to return of the consideration received for the property. - Lupp v. Guthrie, Iowa, 88 N. W. Rep. 1060.

119. PRINCIPAL AND SURETY-Defense That Pripcipal Wag in Delault. When Elected – The suretig on the ofñcial bond of a ghool treasurer are estopped from alleging, as a defense to their liabil ty on the bond, that the treasurer was a defaulter at the time of his election, and ineligible to the office under ('0181. art. 2. $ 10.--Hogue v. State, Ind., 62 N. E. Rep. 656.

[ocr errors]

120. RAILROAD8-Validity of Condition Against Lia. bility for Fires.-Where a railroad company grants permission to another to co' struct a building on its right of way, on condition that it spall not be liable for loss by fire from its locomotives, the condition is valid.-Greenwich Ing. Co. v. Louisville & N. R. Co., Ky., 66 8. W. Rep. 411.

121. RECEIVING STOLEN GOODg-Proving Name of Thiet.-Where an Information for receiving stolen property unnecessarily alleges the name of the thiel, or that bis name is unknown, it must be proved as al. leged to identify the offense.- Senon v. State, Ind., 62 N. E. Rep. 625.

122. REFORMATION OF I STRUMENT8-Ground of Mis. take.- Where there is no mutuul mistake in the de. scription in a deed of the property to be conveyed, and the parties intend to describe the land conveyed, a reformation thereof is not warranted on the ground of mistake.-Sherwood v. Jobpson, Ind., 62 N. E. Rep. 615.

123. SALES - Damages for Fallure to Deliver.- Under Rev. Codes, $ 4985, the measure of damages for breach of a contract to deliver personally is the aetriment caused by failure to deliver, and, where the price has not been paid in advance, is the excess of the value of the property to the buyer over the amount which would have been due ll the contract had been fulflled. -Talbot v. Boyd, N., Dak., 88 N. W. Rep. 1026.

124. SHIPS AND SHIPPING-Vessel Withoat a Lookout. -It is culpable negligence for an officer to leave his vessel entirely without a lookout, especially when an. other vessel is known to be in the vic nity.-Wilder's S. S. Co. v. Low, U. 8. C. C. of App., Ninth Circuit, 112 Fed. Rep. 161.

125. STATUTE8-Plurality of Subjects in Title.- Where the subject of an act 18 single, and is expressed in the title, the act is not invalid because the title announces a plurality of sulj cts.- Eaton v. Guarantee Co. of North Dakota, N. Dak., 88 N. W. Rep. 1029.

126. TAXATION - Burden of Prving Authentication of Tax Bills.-In an action by a city to recover taxes, the burden of proof was on plaint ff to show that the tax bills were properly authenticated; that fact beirg denied by the answ.r.-R.ccius v. Cliy of Louisville, Ky., 66 8. W. Rep. 410.

127. TAXATION-Excluding from Assessment.-Exclusion of a worthless account in estimating Valuation of estate for the purpose of transfer tox held proper.-In re Manning's Estate, N. Y., 62 N. E. Rep. 565.

128. TAXATION National Bank Property.-Under Gen. St. 1888, § 3832, 3833, 3836, property of a national banking corporation, used in the transaction of its business, is not gubjact to direct laxation.- Middle. town Nat. Bank v. Tuwn of Middletowr, Conn., 51 Atl. Rep. 138.

123. TAXATION-Right to Compel Return of Illegal Taxes.-The state audller may be required by man damus to draw bis warrant in favor of a bank for an excess of taxes paid by it into the treasury by reason of a mistake as to the rate of taxation, but not for an excess of taxes paid by reason of an eiropeous assess ment.-German Security Bar k v. Couller, ky., 66 S. W. Rer. 425.

130. T.XATION-Right to Redeem.- The owner of land hold to bave no right to rede, m from tax sale, though it was thx.d in name of anoi her and notice to redeem was given only to such other person and those in possession.-Hawkeye Loan & Biokerage Co. v. Gordon, Iowa, 88 N. W. Rep. 1081.

131. TAXATION-Transfer Tux op Gifte.- Gift of stock, with reservation of dividends and right to vote, is sub. ject to transler tax.- In re Braudreth's Estate, N. Y., 62 N. E. Rep. 563.

132. TRADEMARKS AND TRADI-NAMES Words in Common Use.- Word in common

cannot be adopted as a trade mark.-Cocke & Cobb Co. v. Miller, N. Y., 62 N. E. Rep. 562.

133. TRESPA88-Liability of One Who Accepts Bev. efits.- Where a trespase is done for tbe benefit of an. other, who subsequently agrees to the act, it ronders him liable as though he had originally commanded it. -Brown v. City of Webster City, Iowa, 88 N. W. Rep. 1070.

134. TRIAL-Iquitable and Common-Law Issues.Whire an answer in an action at law presents equitable iesues, they should be tried and determined by the court before submitting the common law issues to a jury.- Arnett v. Smith, N. Duk., 88 N. W. Rep. 1037.

135. TRIAL – Motion for Judgment Notwithstanding Special Verdict.- A party egzrieved by a special verdict cannot move the court for judguent not with. standing such verdict.-Scott v. Farmers' & Mer. chants' Nat. Bank, Ti x.. 66 S. W. Rep. 485.

136. TRIAL.-Right to View the Evidence.-The court did not abuse its discretion in permitting the jury to be taken to the court bouse yard to see a borse and phaeton ffered by plaintiff as évidence.- Board of Internal Improvement for Lincoln County v. Moore's Admr., Ky., 66 8. W. R. p. 417.

137. TRIAL AND PRF CEDUBE-Separate Findings for Separate Parties.-The court cannot be required 10 make separate findings of fact as to each separate plaintiff or defendant, or group of plaintiffs or delend. ants.-Turpie v. Lowe, Ind., 62 N. E Rep. 628.

138. TROVER AND CONVERSION-A9sessirg Damages. -In an action for conversion of bonds, the value of other bonds delivered to plaintiff io lieu thereof should be deducted in fixing the measure of damages. -Storig v. Robinson, Conn., 51 Atl. Rep. 135.

139. TRUSTA AND TRUSTEES-Right of Trustee to Sell Securities in His Possession.- A sale of securities by a trustee, with whom th y were deposited by a cor. poration to secure an issue of bopds, held friudulent and voidable ag against a holder of sucb bonds.- Au. thony v. Campbell, U.S.O. , of App., Eigbtb Circuit, 112 Fed. Rep. 212.

110. WILLS-Determination of M. mbers of a Clasg.Where a de vise is to a cl882, the members of the class are prima facie to be determined on the testator's death, unless the will indicates a contrary intept.In re Nicholson's Will, Iowa, 88 N. W. Rep. 1064.

111. WILLS-Payment of Mortgage on Devise -00 a simple devise of land to parties in their heirs, for. ever, mortgages previously executed by ibe testatrix are payable by the extcutor.- Bulkley y. Seymour, Conn., 51 Atl. Rep. 125.

142. WILL8–Right of Beneficiary to Increase in Truet Property as "Profits."-Where a testator directed tbat the “interest and profits" of a fund be paid to his daughter'annually," the principal at her death to go to her surviving children, property in wbicb the fund was invested hav ng sold for much more than the amount of the fund originally invested, the diughter wag pot entitled to the increase in value as “profi's," but to the income thereof.- First Nat. Bank v. Loe, Ky., 66 S. W. R. p. 413.

113. WILL8-l'odue Influence of Priest.-The relations existing between a priest and testator held under the evidence, in a will contest case, to impose on the priest the burden of showing that the will was pot procured though undue influence.- In re Spark's WIII, N. J., 31 Atl. Rep. 118.

141. WITNESSES – Impeachment of a Party's Own Witness.-A porty cannot introduce the testimony of a third person to show that his own witness har, since testifying, made staremes ts contradi, tory of her testi. mony.-Appeal of Carpenier, Coop., 51 Atl. Rep. 126.

145. WITNESSK8-Right of Wife to Testify for Hug. band as Administrator of Child.- Th·wite may testify for plaintiff in an action by the husband as admin's. trator to recover damages for the death of their ipfont child, though she end ihe husband are the joint bene ficiaries of the recovey.- Board of Internal Improre. ment for Lincoln Couvry v. Mooie's Admr., Ky., 66 S. W. Rep. 417.

[ocr errors]
[ocr errors]


[ocr errors]

Central Law Journal.

residence of the creditor was incorrectly given on tbe schedule, and no notice was

ever served on him, and he had no knowl. ST. LOUIS, MO., APRIL 25, 1902.

edge of the proceedings. So also, in Collier on Bankruptcy (3d Ed.), p. 189: "The

failure of the creditor to prove bis debt, if it An honored correspondent from the State is provable, does not prevent it from being of Washington sends us an advanced copy of released by the discharge; not even in those the opinion of Justice Hanford, of the cases where it was omitted from the schedule

District Court of the of debts, and where the creditor was not DISCHARGE IN BANKUnited States for the served with a notice of the proceedings.” RUPTCY WHERE DEBT Northern Division of See also to same effect the following authorIS NOT SCHEDULED. the District of Wash ities : Lamb v. Brown, 12 N. B. Rep. 522;

ington, in the matter Heard v. Arnold, 15 N. B. Rep. 543; Thur. of Frank Monroe, bankrupt. The contro mond v. Andrews, 13 N. B. Rep. 157; versy was over an application by the Capital Batchelder v. Low, 8 N. B. Rep. 571. The Brewing Company, a creditor, to vacate an reason for this rule is, that under the old order discharging the bankrupt from his bankrupt act these creditors were supposed debts, the creditor a'leging in its petition to be brought in by a general printed notice that it had not been listed in the scbedule of to creditors as in the case of deceased percreditors annexed to the petition filed by the

It is well settled that in order to setbankrupt, and did not have notice or knowl. tle an estate or the title to property, debtors edge of the proceedings until after the time or claimants can be forced in on a general orallowed for making proof of , debts bad der of publication without actual notice or elapsed. Justice Hanford beld that the without actually scbeduling or classifying creditor was not bound by the discbarge,

their claims. but bases his decision on the following However, we agree with tbe decision of peculiar ground:

the court in this case, although not with the "One of the fundamental principles in the reason assigned for it.

We think it clearly jurisprudence of this country is that no man comes within the provisions of sec. 17a of can be deprived of any legal rigbt by a judi- the new hankrupt act. This section provides cial proceeding to which he is not a party,

that the discharge shall affect all debts except and of wbich be bas pot received lawful no those "not duly scheduled in time for proof tice, or had actual knowledge. Upon this and allowance, unless such creditor bad noprinciple, I hold that the bankrupt in this tice of actual knowledge of the proceedings case has not obtained a discharge from any in bankruptcy."

in bankruptcy." Under this provision it is debt which was omitted from the schedule evident that debts pot duly scheduled in time annexed to his petition wbich may be due to for proof and allowance will not be barred a creditor who did not have notice or knowl. by a discharge unless the ero di:or bas notice edge of the bankruptcy proceedings in time

or actual knowledge of the bankruptcy proto have proved his claim. Creditors who ceedings. But it is to be observed even unhave not been notified of the proceedings in

der this section tbat if the creditor's claim is the manner prescribed by the bankruptcy scheduled, neither notice or actual knowl. law are not estopped from asserting their edge of the creditor is necessary. rights by reason of mere failure on their part to be diligent in discovering the insolv

NOTES OF IMPORTANT DECISIONS. ency of their debtors, or their resort to a court of bankruptcy.

TRIAL AND PROCEDURE-FAILURE OF DEFENDWe cannot agree with the learned judge ANT TO TESTIFY AS RAISING AN UNFAVORABLE on this statement of the law as a general PRESUMPTION.-Does the failure of ibe defendproposition. In Pattison v. Wilbur, 12 N.

ant to testify raise an unfavorable presumption B. R. 193, a case decided under the old

against him. In the recent case of Bastrop State

Bank v. Levy, 31 Sonth. Rep. 164, the þurden of bankrupt act, it was held that a discharge in

proof was on the defendant to sbow obat be bad bankruptcy will bar a claim, alilough the made other deposits in a bank than bis passbook

showed. The defendant attempted to discharge given to him, any more than it could set up in this burden by all possible evidence save bis defense that an engineer had violated the express own. The court said:

instructions given to him to ring the bell at a "While he (defendant) was present in the court public crossing. The obligation to see that the during the trial, and assisted his counsel in the duty is performed is cast upon the owner of the defense, he did not take the stand at all, and per road. The safety of the public demands that the mitted the case to be closed without one word company shall be strictly held to its performance. from him in rebuttal of the showing of indebted If the engineer in charge of a train of cars, after pess made against bim on behalf of the plaintiff. he reaches his destination, should lend his train Judicial tribunals are established to administer to a friend to take a run upon the road, could it justice between litigants, and the first and most be questioned that for any injury which resulted important step to that end is the ascertainment from its negligent use the company would be reof the truth of the controversies wbich come be sponsible? The relation of master and servant fore them. It is only when the truth is ascer would not exist between the borrower and the tained that the law can be properly applied in company upon which to base its liability, but the the just settlement of disputes. Litigants owe the action would rest upon the responsibility of the duty of assisting in every legitimate way in the company for the observance of due care in the elucidation of the truth. When a defendant can use of the train by its engineer. In Tuller v. by his own testimony tbrow light upon matters Talbot, 23 Ill. 357. 76 Am. Dec. 695, the plaintiff at issue, necessary to his defense and peculiarly was a passenger in defendant's stage coach.' Tbe within his own knowledge if the facis exist, and driver of the coach placed the lines in the bands fails to ge upon the witness stand, the presump of a passenger, and while the passenger was tion is raised, and will be given effect to, that the driving the plaintiff was injured tbrough his facts do not exist. Board v. Trimble, 33 La. negligence. The court held the proprietor of Ann. 1073; Nunez v• Bay bi, 52 La. Ann. 1719, 28 the stage coach liable for the injury.” See also South. Rep. 349. So, too, it bas been recognized Lukin v. Railroad Co., 15 Oreg. 220, 15 Pac. that where the means of proving the negative are Rep. 641; Railroad Co. v. Derby, 14 How. 468; not witbin the reach of the party alleging it, but Sleath v. Wilson, 9 Car. & P. 607. it is within the power of the opposite party, if the negative be not true, to prove it so, the law will

INSANITY KLEPTOMANIA AS A DEFENSE TO presume the proof of the negative averment from the fact tbat such opposite party withholds or

LARCENY.-Much discussion is being indulged does not produce the proof that the negative is

of late by the courts as to whether the courts not true. 2 Am. & Eng. Enc. (1st Ed.) p. 652, S

should endeavor to keep up with the medical 4. This would seem to be one of those cases

profession on the subject of insanity. We at. where this principle or this doctrine might safely

tempted to enter the arena on this question, at

least as to one phase of it, -that of "unconbe applied, were there need to revoke it.

trollable impulses,”-in a recent issue of the

Journal. See 54 Cent. L. J. 270. The question, MASTER AND SERVANT-LIABILITY OF RAIL however, bas again arisen in an equally interest

FOR NEGLIGENCE OF SUPERINTENDENT ing form in the recent case of State v. McCulIN LENDING Push CAR.-The recent case of lough, 87 N. W. Rep. 503, in wbich the Supreme Erie Railroad Company v. Salisbury, 50 Atl. Rep. Court of Iowa held that what the medical pro. 117, shows how far the doctrine of respondeat fession call kleptomania was a weakening of the superior can be carried under favorable circum will power to such an extent as to leave the stances. A railroad company placed a push car afflicted one powerless to control bis impulse to in the bands of the foreman of a gang of men to appropriate the personal property of others, and be used in traveling upon its road for the pur that it was a good defense to an indictment for pose of burning waste railroad ties. The foreman larceny independent of any question of avarice or loaned it to an Italian to take away some of the greed. It appears tbat defendant had been three ties for bis own use. While the Italian was run times before convicted of larceny and like ning it on the railroad track, the plaintiff, by his offenses. It was shown that he possessed an innegligence, was injured while crossing the track. ordinate desire for pussessing bimself of articles The Supreme Court of New Jersey held,-five of personal property, with no regard to any judges dissenting!—that it was the duty of the special value they might have and for inapy of foreman to use the push car with reasonable care which be could bave no use. A list of the propto prevent injury to anyone lawfully on the track erty found in his possession is set out in the and to keep it under his own supervision until it record. Many of the articles were stolen by bim. was returned to the company, and that for the It is too lengthy to give in extenso. We enumero performance of that duty to the public the com ate sufficiently to convey an idea of the character pany was bound. The failure of the foreman to of the accumulation : 14 silverine watches, 2 old perform it was the failure of the company. The brass watches, 2 old clocks, 25 razors, 21 court said:

pair of cuff buttons, 15 watch cbains, 6 “The company cannot claim immunity on the pistols, 7 combs, 34 jackknives, 9 bicycle ground that its servant violated the instructions wrenches, 4 padlocks, 7 pair of clippers,


3 bicycle saddles, 1 box old keys, 4 pair jury sbould have been allowed to consider all the of scissors, 5 pocket mirrors, 6 moutb organs, evidence, and to accord to the testimony of each rulers, guns, bolts, calipers, oil cans, washers, witness such force and effect as they deemed puncbes, pulleys, spoons, penholders, ramrods, proper, uninfluenced by reflections from the court violin strings, etc. Several expert witnesses were tending to discredit it. The court said: “We introduced, who testified in response to bypo- bave approved an instruction telling a jury the thetical questions; and the effect of what they upsatisfactory character of expert evidence relat. said was that defendant was insane, being afflicted ing to handwriting. Whitaker v. Parker, 42 lowa, witb that form of mental disease known as 585. But such evidence is of a peculiar character. Ķleptomania. The court in its instructions, after One man is but little better qualitied tban another telling the jury they were to acquit the defendant to give it, and the rule of the cited case cannot if they found that the acts cbarged were caused properly be applied to all opinion testimony. Tbe by mental disease which dethroned bis reason value of opinion evidence of this nature is and judgment with respect to those acts and in- generally for the jury alone. Rog. Expert Ev. $ evitably forced bim to their commission, added 41. Usually the court must not, in its instructions, tbe following: “The practical question is underrate or detract from the weight of such opinwhet ber avarice or insanity was the controlling ions. Eggers v. Eggers,57 Ind. 461; Cuneo v. Bes. force." The court held this latter clause to be soni, 63 Ind. 524; Weston v. Brown (Neb.), 46 N. error as setting off avarice and greed against in- W. Rep. 826. Practically the whole defense in this sanity, as though these qualities indicated a case rested upon the opinions of experts. Tbey sound mental condition.

were men of a bigb degree of skill and long ex

perience in treating mental ailments. The entire TRIAL AND PROCEDURE-RIGHT OF COURT

subject is peculiarly technical and unfainiliar to

the common mind. While the jury were to pass TO CRITICISE THE CHARACTER OR VALUE OF ExPERT TESTIMONY.-It would sometimes seem not

upon the weight of tbe opinions in the light of inexcusable on the part of trial judges to become

all the facts, tbey should bave been permitted out of patience with much of the subsidized ex

to take such opinions fairly, and consider them pert evidence that is offered to bamboozle a jury

without detraction by the court. See Brusb v. on intricate scientific questions. This same feel.

Smith, 111 Iowa, 217, 82 N. W. Rep. 467. It is ing also arises where the experts” bandy smart

true that in State v. Hockett, 70 Iowa, 416, 30 N. words or invent new terms which a jury must

W. Rep. 742, an instruction identical in language

with the one under consideration was approved, either believe or fail to consider. In the recent

but we think that case can be distinguished from case of State v. McCollough, 87 N. W. Rep. 503,

tbis; and inasmuch as this court, as now the trial court gave the following instruction to the jury on the value of certain expert evidence

stituted, would not approve the reasoning there as to the character of kleptomania as a phrase of

employed if the question were a pew one, we are insanity:

not inclined to apply the l'ule announced to Medical men have been called as experts by

any save a similar state of facts." the defendant, to give an opinion as to the mental condition of the defendant at the time of the acts charged in the indictment. These opinions will

WHAT CONSTITUTES THE PUBLIC TO be of greater or less aid to you in your de- JUSTIFY A TAKING OF PROPERTY liberations, depending

very much

the UNDER THE RIGHT OF EMINENT skill, knowledge, and experience of the witness,

DOMAIN and his acquaintance with the subject under investigation. It will readily occur to you tbat this The eminent domain includes the right to kind of evidence may be found quite reliable and

take and receive any property within the satisfactory, or the reverse, and entitled to little,

jurisdiction of the sovereignty for a public if any, consideration. It may furtber be remarked, too, in regard to evidence which is made up

purpose, use or benefit, with the means of enlargely of mere theory and speculation, and wbich

forcing the right upon compensating the siggests -mere possibilities, that it ought never owner. The purpose of this article is to to be allowed to overcome clear and well estab- determine of what elements the entity for lished facts. In this connection, I deem it proper

the use, benefit or purposes of which the to say that, while, perhaps, the profession of law has not fully kept pace with that of medicine on

property is taken. To ascertain of wbat the subject of insanity, medical authorities bave proportion of the population of the state the propounded doctrines respecting it as an excuse public is composed, over what area and un. for criminal acts which a due regard for the safety der wbat conditions the benefits must be disof the community, and an enlightened public tributed to have it considered tbat the public policy, must prevent juries from adopting as a part of the law of the land."

is the recipient. These benefits are clearly It was said by appellant that this was an unfair

distinguishable and divisible into classes criticism of the expert testimony, and that the which may be denominated direct or indi.



« ПретходнаНастави »