Smith v. Speed (Okla.) Right of Legislatures to St. Louis Southwestern R. R. v. Ferguson (Tex.) Car- riers of Passengers-Liability for Injury to Preg. State v. Bailey (Ind.) Constitutional Law-Compulsory Education as an Unauthorized Invasion of Rights State v. Cook (Tenn.) Constitutional Law-Powers of State v. Kinloch Tel. Co. (Mo.) Telephone Companies State v. Knight (Me.) Murder-Uncontrollable Impulse State v. McCullough (Iowa) Insanity-Kleptomania as State v. McCullough (Iowa) Trial and Procedure- State v. Tingey (Utah) Constitutional Law-Increase in Salary of State Officers During Term of Office, R. D. 282. State v. Westfall (Minn.) Constitutional Law-Tor. rens System of Registation, ann. case, 290. State Board of Equal zation v. People (I.) Taxation State of Minnesota v. Northern Securities Co. (U.S. S. C.) Jurisdiction of the United States Supreme Court in the Railroad Merger Case, R. D. 302. Sweeney v. Montana Central Railway Company (Mont.) Damages - Aggravation of Injuries by Tarbell v. Rutland R. R. (Vt.) Release-Validity of Con- tracts by Next of Kin Releasing Common Carriers from Liability for Negligence, R. D. 222. The New England (U.S. D. C., Mass.) Carriers by Water-What Law Governs Stipulation for Exemp. tion from Liability for Negligence, ann. case, 149. Tucker v. Alexandroff (U. 8. S. C.) International Law -Surrender of Deserters from Foreign Ships of War Where Vessels Are Not Completed nor Com. Union Strawboard Co. v. Ronfield (Il.) Monopolies- Contracts Restraining Trade in au Entire State, Virtue v. Board of Freeholders (N. J.) Sheriffs and Con- Watson v. Southern Oregon Co. (Oreg.) Trial and Pro- Weber v. Laidler (Wash.) Public Lands-Validity of Mortgage of Homestead Entry Before Patent, ann. Wehner v. Lagerfelt (Tex.) Witness-Who is Qualified Weiand's Administrator v. State National Bank (Ky.) Revocation of Check by Death of Drawer, Ed. 441. Westheider v. Wabash Railroad Co. (U. 8. D.,C.) 8. D. Ill.) Federal Jurisdiction-Citizenship of Corpora tions as Affected by their Consolidation, ann. case, West Virginia Transp. Co. v. Standard Oil Co. (W Va.) - LIST OF LEADING ARTICLES IN VOLUME 54 No. 1. Improper Remarks and Conduct of Trial Judges as Reversible Error. By Cyrus J. No. 2. Liability of Telegraph Companies-To Sender, Addressee and Third Party. By Mor- ton John Stevenson, 23. No. 3. Subrogation and the Modes of Enforcing No. 4. Statutory Powers of Married Women as to Realty-Barring Title-Estoppel. By Chas. No. 5. Who Are Passengers? By W. C. Rodgers, No. 6. Proposed Provisions Against Fraudulent No. 7. The Rise and Purposes of the Legal Aid No. 8. Foreclosure for Non-payment of Interest. By Charles Sumner Lobingier, 143. No. 9. Injuries in the Family Relations-Actions by Husband and Wife. By Arthur P. Will, 164. No. 10. As to Who May Offer and Accept Re- No. 11. Trusts-Their Uses and Abuses. By No. 12. Enforcement of Contract Valid Where Made, but Contrary to the Public Policy of the State of the Forum. By John D. Lawson, 223. No. 13. The Case Against Jury Trials in Civil Actions. By Lawrence Irwell, 243. No. 14. Liability of Owners of Vessels for Torts No. 15. The Torrens System of Land Registra- tion. By Alexander H. Robbins, 282. Torrens Registration of Real Estate Titles, and its Practical Operation in Massachusetts. No. 16. To What Period of Time is the Im- peachment of a Witness for Truth and Veracity Limited? By Joseph E. Davies, 303. No. 17. What Constitutes the Public to Justify a Taking of Property Under the Right of Emi- nent Domain? By Colin P. Campbell, 323. No. 18. Contract for Legal Services by Munici- pal and Other Public Corporations, 343. No. 19. Bondholders as Complainants in the By No. 20. Spendthrift Trusts. By Nathaniel S. No. 21. Joint or Severable Liability of Master and Servant for Negligence as Affecting Re- moval of Causes. By Cyrus J. Wood, 404. No. 22. Wanton Interference With Contract and No. 23. Conflict of Law as to Sale of Live Stock in One State Held Under Chattel Mortgage in Another. By J. W. Marley, 443. No. 24. Rights of a Covenantee Upon Breach of Warranty Against Incumbrances. By W. No. 25. Right and Duties of Adjoining Land- Central Law Journal. ST. LOUIS, MO., JANUARY 3, 1902. The suggestion of the CENTRAL LAW JOURNAL, in its issue of November 29, 1901 (53 Cent. L. J. 421), in regard to the refusal of executives of certain states to recognize the requisitions for the extradition of fugitives from justice from executives of sister states, has just been adopted in a bill presented to coagress December 13, 1901, and referred to the judiciary committee. We made a thorough examination of the subject at that time, and are absolutely convinced that the remedy suggested, and which is adopted in this bill, is the only solution for those unhappy and serious clashes of authority between the governors of sister commonwealths. This subject is not a political one, but is one in which every lawyer and every citizen is vitally interested. The bill is number 5827, and was introduced by Mr. Robinson, of Indiana, through whose courtesy we are in receipt of a copy thereof. Its object is to amend section fifty-two hundred and seventy-eight of the Revised Statutes of the United States on extradition. The section amended by this bill would read as follows: "Whenever the executive of any of the states or territories demand any person as a fugitive from justice of the executive of any other state or territory to which such person has fled, and produces a copy of an indictment found in an affidavit made before a magistrate of any state or territory charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appear within six months from the time of the arrest the person may be discharged. the governor or executive authority of any If state or territory to which such fugitive person has fled shall refuse the demand of the governor or executive authority of the state from which said fugitive fled, as above provided, then the governor or executive of the state from which said fugitive fled may issue his warrant of arrest to any marshal of the United States commanding him to arrest and bring forthwith before the court having jurisdiction of the offense the said fugitive from justice. There shall be attached to said warrant a copy of an indictment found or an affidavit made before a magistrate in said state or territory to which said warrant is issued charging the person demanded with having committed treason, felony, or other crime, and certified as authentic by the governor or chief magistrate of said state. "The said warrant when so issued shall authorize any marshal of the United States to arrest and secure said fugitive in the said state or territory to which he fled and to bring him back into the state or territory from which he fled." That this is a most excellent and necessary step in advance is obvious to every one acquainted with the present facts and conditions. Of recent years there has been a tendency among governors to refuse the rendition of fugitives from justice for certain political crimes or for offenses charged to enforce financial obligations and on various other grounds which they have alleged as "ulterior," thus laying themselves open to the charge of acting in the face of the constitution and of the decision of the supreme court, denying them any discretion in such matters. We heartily indorse this bill as a happy solution to a most difficult problem of American constitutional law. NOTES OF IMPORTANT DECISIONS TRIAL AND PROCEDURE-IMPROPER ARGUMENT OF COUNSEL.-Attorneys in their zeal to promote their client's interests, often overstep the bounds of reason and fairness in their statement of the case and argument to the jury. But, as a general rule, such arguments or statements, even if objectionable, will not be ground for a new trial unless some substantial right of the opposing party has been affected. Such was the decision in the recent case of Watson v. Southern Oregon Co., 65 Pac. Rep. 985, where the Supreme Court of Oregon held that the reading of an opinion in a former case by counsel while discussing a proposition of law, in which no question decided was material in the pending trial, is not error in the absence of a showing that counsel acted in bad faith, or that the reading improperly influenced the jury. And also that the fact that a court considered statements made by counsel of plaintiff prejudicial to defendant, and sufficient to justify granting a new trial, unless plaintiff remitted a part of the verdict, does not make such statements assignable as error on appeal, in the absence of an objection by defendant's counsel thereto. VERDICT MISCONDUCT OF JURY IN ARRIVING AT A VERDICT. One of the most serious questions of legal procedure which is perplexing courts and lawyers alike, is the gross misconduct of jurors in arriving at a verdict in the most important civil suits, which, if the litigation on this question is any criterion, is growing with alarming rapidity. Indeed, trial by jury in civil cases, where large financial and business interests are involved, is not to be commended, and litigants in such cases generally waive a jury and leave the matter to the discretion of the trial judge or to a commission of referees, who are especially versed in the subject of controversy. Some juries seems to have a very low conception of the importance of a verdict. A verdict has been very correctly defined as the unanimous decision made by a jury and reported to the court, on matters lawfully submitted to them in the course of the trial of a cause, and should be the result of sound judgment, dispassionate and conscientious consideration. Litigants in a cause before a jury are entitled to the free, deliberate, unbiased and conscientious judgment of twelve jurors, and a verdict should not be permitted to stand which has been brought about by any undue or improper influences, or made to depend upon any contingent result. In the recent case of Williams v. Pressler, 65 Pac. Rep. 934, a jury, after deliberation for a reasonable time, stood three for the defendant and nine for the plaintiff, and the three who were favorable to the defendant signed a written agreement to the effect that they would find for the plaintiff if the other nine would sign a written statement to the effect that they believed the defendant had willfully testified to a lie, and the other nine, in order to induce the three to agree with them, did prepare and sign a written statement wherein they stated that they believed that the defendant did willfully and knowingly swear falsely in the case then before them, and on this being done the jury returned a verdict for the plaintiff. The Supreme Court of Oklahoma held that such verdict was not the result of free, deliberate and unbiased judgment, and should be set aside. Among the cases bearing on this question is that of Ryerson v. Kitchell's Executors, 3 N. J. Law, 998. In that case, the jury, after deliberating for some time, and being unable to agree, agreed to leave it to two of the jurors to go by themselves and agree, and, if the two could not agree, then the two were to select a third juror as umpire; and the two, failing to agree, selected the third, and these three agreed to find no cause of action. The jury then returned a verdict in conformity to the finding of these three jurors. The court said, "This transaction was unlawful, and the judgment rendered on a verdict obtained in this manner cannot be supported." Other authorities supporting the court in the principal case on the general proposition might be mentioned as follows: Merserve v. Shine, 37 Iowa, 253; Richardson v. Coleman, 131 Ind. 210, 29 N. E. Rep. 909, 31 Am. St. Rep. 429; Randolph v. Lampkin, 90 Ky. 551, 14 S. W. Rep. 538, 10 L. R. A. 87; Henderson v. State, 12 Tex. 532; Knight v. Fisher. 15 Colo. 176, 25 Pac. Rep. 78; Donner v. Palmer, 23 Cal. 40; Burke v. Magee, 27 Neb. 156, 42 N. W. Rep. 890; Lee v. Clute, 10 Nev. 149. IMPROPER REMARKS AND CONDUCT OF TRIAL JUDGES AS REVERSIBLE ERROR. When a case is submitted to the court, what the judge says and does that would be extremely prejudical before jurors has, in their absence, no evil effect on any party to the suit. Even the party complaining cannot object that notice is given of the court's attitude or opinion. When, however, a case is being tried before a jury there are two judicial bodies, a judge of the law and judges of the facts. Neither has a right to invade the province of the other. As a consequence improprieties of speech or conduct on the part of the trial judge are ordinarily assigned as error on the ground that the jurors were influenced thereby, or, in other words, that the judge did not properly respect the province of the jury. There is not unanimity in judicial decisions on the subject of the respective provinces or functions of the judge and the jury. The rule of the federal courts is familiar. They refuse to follow the statutes and decisions prevailing in a majority of the states, and hold that the expression of an opinion by the judge in submitting the case to the jury, when no rule of law is incorrectly stated and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed on a writ of error. There are decisions by state courts of review, particularly in New York and Pennsylvania, that give to trial 1 Doyle v. B. & A. R. Co., 27 C. C. A. 264, 82 Fed Rep. 869; Railroad Co. v. Putnam, 118 U. S. 545, 553 judges the right of expressing opinions on facts. Justice Gaynor, of the New York Supreme Court, recently used emphatic language in advocating what would practically be the adoption of the federal rule in the state courts.2 The learned justice in his opinion refers to what he terms the vogue of certain counsel "whose uppermost idea seems to be that the business of trial judges is only to help the tip staffs keep order while the jury tries the case," and that the judge "is placed in such a state of tutelage and subjection under our present system that he may say nothing that is not colorless and apologetic." Later, in the opinion, he says: "I prefer to believe that the constitution and laws have not reduced trial judges to any such humiliating position in this state. It seems to me that it has always been recognized as wholesome in this state, the same as in England, that trial judges should feel free to exercise full control over the trial of causes, and, to speak plainly, especially in the presence of trickery and fraud. It is that which kept the jury system so high in England. Honest litigants and honorable and learned counsel expect it and want it, and are entitled to the protection of it. Our highest court has carefully guarded this function of the trial judge and refrained from infringing upon it, though often invited to do so." This is a fair and able presentation of the views of those advocating for trial judges "full control" of jury trials, but with all due respect for the opinion of the writer, it is proper to state that his position is not being commonly adopted in this country. The tendency is to guard carefully the province of the jury as judges of facts, and to deny to the court the privilege of expressing opinions thereon, and even in jurisdictions where the court is allowed to express an opinion on the facts, it is held to be his duty to instruct the jury that they are not bound thereby. When those statutes are considered which provide, in substance, that judges shall not give opinions on facts, as this is the true office and province of the jury, it cannot consistently be claimed that, as a general rule, "honest litigants" desire exactly the opposite. Surely these statutes were not enacted wholly by dishonest litigants or in their favor. Such laws are an evidence of 2 Baker v. Riedel, 52 N. Y. Supp. 832. the importance attached to preserving jury verdicts free from prejudice or improper influence, and the remarks and conduct of nisi prius judges are erroneous when they have such an effect. In an opinion written by Justice Grant the Supreme Court of Michigan declares itself on this subject, in substance, as follows: Appellate courts must presume that one occupying so important a position as that of a circuit judge can influence a jury, and whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of another, or uses language which tends to bring an attorney into contempt before the jury, or uses any language which tends to prejudice, then he commits an error of the law for which the verdict and judgment must be properly set aside.3 The decisions are numerous which hold that any improper remark of the trial judge, in the presence and hearing of the jury, liable to influence their action, is misconduct, and reference is here made to those of this purport subsequently herein cited. The late Justice Cooley held that even the demeanor of a trial judge could be assigned as error because of its improper influence on the jury. Speaking with reference to the remarks of trial judges Judge Gary, of Chicago, in an opinion delivered when a justice of the appellate court of Illinois, said, characteristically and forcibly: "One of the greatest difficulties of a nisi prius judge is to keep his mouth shut. I had twenty-five years' experience of it. Many judgments have been reversed in this state because the judge talked too much.' In a recent Pennsylvania case, after a trial of several weeks, the jury had been out two days, when the court told them that if they did not agree he would keep them together for weeks, and people would suspect them of corruption. When the case reached the supreme court Justice Dean called attention to the intelligence of the jury, and in a measure outlined the duty of the court by saying that what the jurors needed was the lawful, patient and kindly aid of an able judge, while instead of this there was a complete obliteration of the dividing line between the 3 McDuff v. Journal Co., 84 Mich. 1. 4 Wheeler v. Wallace, 53 Mich. 355. 5 Kane v. Kinnare, 69 Ill. App. 81, 115 |