EVIDENCE-IN SUIT FOR PERSONAL INJURY -TO SHOW THE PLAINTIFF SUFFERED PAIN FROM THE IN

JURY.-On the trial in an action for a personal injury, the plaintiff called his attending physician, who testified that he had examined the plaintiff, who stated the symptoms, and that he had suffered pain. The witness was then asked whether the plaintiff was feigning or "making believe," to which he answered, "No, sir; I know he did not from examination and tests." Held, that with the explanation as to his means of knowledge there was no error in the admission of the evidence. The answer could only be understood as a deduction or conclusion from the examination and tests made. In such a case the attending physician, having every means of observing the symptoms, may be asked if the patient suffered pain, and his answer in the affirmative can be considered only as an opinion based upon actual facts and tests. It does not even require an expert to know the existence of pain from the nature of the injury and the patient's outward manifestations. Chicago, etc., R. Co. v. Martin. Opinion by Walker, J.

DEED-UNDUE INFLUENCE-SON OBTAINING

DEED

FROM HIS MOTHER-PRESUMPTION-RELIEF FROM MIS

TAKE.-Where a person enfeebled in mind by disease or old age, is so placed as to be likely to be subjected to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts will require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the donee. Such a conveyance is presumptively void. Haydock v. Haydock, 7 Stew. (N. J. Eq.) 570; Huguenin v. Baseley, 2 L. C. in Eq. (4th Am. ed.), notes, 1183-1185; Am. notes, 1192-1194; Bisp. Prin. Eq., p. 296, § 235. And so where a son, believing that his father, who had the "blues," was incompetent to manage his own affairs, took charge of them, the father passively submitting, and the son also induced the father to execute to him a deed of his farm, and to transfer all his personal property to him, it was held that the transaction was presumptively void, and it was incumbent on the son to show conclusive good faith. Jacox v. Jacox, 40 Mich. 473. A mother was induced by his son, while she was in a feeble state of mind, to execute a deed to him for her land, including her homestead, under the assurance and belief that it would not take effect until recorded, and the grantee agreed not to procure the same to be recorded during the life of the grantor. Held, the deed would not take effect as to the grantee, and the grantor might destroy the same at pleasure. Although the general principle is a court of equity will not ordinarily relieve against a mere mistake as to the law, still where the mistake is induced by a party taking advantage of it, and the relations are such that the party deceived is dependent upon the party deceiving, or is otherwise peculiarly under his influence, a court of equity will interfere, and protect against any advantage thus obtained. Bisp. Prin. Eq. (2d ed.), § 188; Kerr Fraud and Mistake (Bump's ed.), 400; Wheeler v. Smith, 9 How. 55. Sands v. Sands. Opinion by Schofield, C. J.

LANDLORD AND TENANT-LANDLORD'S LIEN ON GROWING CROPS-DISTRESS SUBJECT TO PRIOR LIENS.

A lien is given by the statute to a landlord upon crops growing or grown upon demised premises in any year, for the rent that shall accrue during such year (Rev. Stat. 1874, ch. 80, § 31), but no specific lien is created or given as to any other property of the tenant. Hadden v. Kuickerbocker, 70 Ill. 677. At common law, before the adoption of the statute of 8th Anne, ch. 14, the landlord had no lien of any kind, but only a right to distrain. Grant v. Whitewell, 9 Iowa, 156; Doane v. Garretson, 24 id. 351; Craddock v. Riddlesbarger, 2

Dana, 208; Ege v. Ege, 5 Watts, 139. This court has held that when personal property has been sold by the tenant in payment of a pre-existing debt, in good faith, and the purchaser has removed the same from the demised premises, such property is not liable to distress for rent, either at common law or by any provision of our statute, even though the purchaser knew there was rent due. Hadden v. Knickerbocker, supra. See also Martin v. Black, 9 Paige, 641; Coles v. Marquand, 2 Hill, 447; Hastings v. Belknap, 1 Den. 190. At common law an execution levied on goods of the tenant, even where rent was due, took precedence of a distress warrant subsequently issued, and the officer had a reasonable time in which to remove them. 3 Cooley Bl. Com. 7; Pierce v. Scott,4 W. & S. 344; Hamilton v. Reedy, 3 McCord, 38. The statute of Anne, giving a landlord such a lien, is not in force in this State, being of a date later than the fourth year of James I. If ever in force here as a part of the laws of Virginia, it has been repealed by implication, or superseded by subsequent acts of our Legislature intended as revisions of the whole subject; and the present statute, by giving the landlord a lien only upon crops growing or grown, by implication excludes the idea of a lien on any other property of the tenant. Herron v. Gill. Opinion by Dickey, J.

RECENT ENGLISH DECISIONS.

WILL-REMAINDER

INCONSISTENT CLAUSES.-The testatrix in this case by her will gave certain real estate to trustees upon trust to pay to or otherwise permit E. S. to receive the rents and profits thereof for her life, and after her decease, upon trust to pay to or otherwise permit A. B. to receive the rents and profits thereof for her life, if she should be living at the time of the decease of the said E. S., but if she should be then dead, upon trust for two nieces of the testatrix's late husband, whom she named, absolutely as tenants in common; and the testatrix gave all the residue of her estate to the said A. B. absolutely. E. S. survived the testatrix, and A. B. survived E. S., and consequently her life interest took effect. She was now dead, the two nieces being living, and the question was raised whether the estate went to the two nieces, or whether, inasmuch as A. B. did not die in the lifetime of E. S., the gift to them failed, and the estate went to A. B.'s representatives, being given to her absolutely by the joint operation of the gift of the life interest and of the residue. Held, that the property went to the two nieces, the gift to them not being a contingent remainder, but an imperfect expression of the testatrix's intention, that subject to the two life interests, the nieces were to take absolutely. To my mind the words of this gift are ambiguous. However in many cases where the words seemed to import a contingency, the court has treated the gift as a remainder. An instance of that is the case of Luxford v. Cheeke, 1 Jarm. Wills, 802, which is referred to by Lord Hatherley in Eastwood v. Lockwood, L. R., 3 Eq. 487, where he says that it "depends on the rule that words shall be construed as operating by way of remainder if they can reasonably be so construed, re gard being had to the will." He continues: "Of the same class are West v. Erisey, 1 Bro. P. C. Toml. 225, and other cases, where there are words which seem to import a contingency, but which really only point to the limitation of a remainder. One of the strongest cases of this class is Gulliver v. Wickett, 1 Wils. 105, where a man gave an estate to the child of which A. B. is enceinte' in tail, and in the event of that child dying without issue, over. It seemed at first sight as if it were necessary that the child should

come into existence and die without issue; but the truth was that A. B. was not enceinte at all. The statement in the books is that the preceding estate being out of the way, in any mode whatever, the remainder will take effect." See also Maddison v. Chapman, which was affirmed on appeal, 3 De G. & J. 536; Grey v. Pearson, 6 H. L. Cas. 61; Meeds v. Wood, 19 Beav. 215; Leadbeater v. Cross, 2 Q. B. Div. 18; S. C., 19 Moak Eng. Rep. 191. Ch. Div., June 13, 1885. Smith v. Martin. Opinion by Kay, J. (53 L. T. Rep. [N. S.] 34.)

OUR LONDON LETTER.

YOUR correspondent welcomes the end of the long

vacation with a weary sigh of relief, which sigh is but the echo of one which is being generally heaved by the members of the common-law bar. Time was when the man who remained in London through August and September got stray briefs, the crumbs from great men's tables, and laid the foundation of high forensic reputations. But this was in the palmy days when Lord Campbell was a young man. Now we may translate tempora mutantur, nos et mutamur in illis, into "it is not worth while staying up in the long vacation, so we go away." I trace this fact, this complete stagnation of business from the beginning of August to the end of October, to two causes, the first being the fact that the volume of business is less than it used to be in proportion to the number of men engaged; the second is that leading men have a habit, on the equity side at least, of leaving a locum tenens behind them when they betake themselves to the moors, or the Alps, to Burton, or a foreign spa, according to the bent of their tastes or the orders of their medical adviser. In this way a man prevents his practice from going astray, and removes from his clients the temptation of going after strange gods. Doubtless railways, and the penny post, and the telegraphic system have all exerted their influences. A leader may be in a position to write a very sound opinion on his library table in his country seat; a prominent stuff-gownsman carries away with him to the country his power of drawing pleadings; and if an important matter comes to the fore, a telegram and a handsome fee will bring a man to London from any part of the kingdom in a very few hours. These are natural reflections at the end of the long vacation, and it is a heinous breach of professional etiquette not to grumble; but if the whole truth of the matter were known, I believe that business is improving, and will continue to improve.

Leading juniors, and some ambitious queen's counsel, unprovided with safe seats in the House of Commons, are busy over the impending elections; but it would be highly rash to predict any thing as to the result of the elections themselves or the number of the barristers who will be successful. One thing may be said with safety, which is that the barristers who enter Parliament will not, if they follow the example of their predecessors, devote the slightest care to the interests of the profession which gave them eminence. For some reason or other, lawyers invariably forget the application of the proverb which characterizes the bird who "fouls his own nest," and as soon as a bill touching the interests of the profession injuriously is introduced into the House of Commons, the barristers in Parliament either give it their hearty support or leave it undiscussed and unopposed.

The two leading topics of the day are the transfer of land and the Franchise Act. Every thing that can be said upon the former subject has been said a hundred times before, although it is not often that names so distinguished as that of the Duke of Marlborough and

that of Mr. Horace Davey, Q. C., have been introduced into the discussion. The duke is an authority on the subject, not because he is a thoughtful man, or because his character stands high in the public esteem, but because his experience of solicitors' charges is in all probability more varied than that of any man of his age. He knows something of the divorce court; he has figured in one or two other suits; he has obtained a niche in the law reports by applying to heirlooms the provisions of the settled Land Act. Mr. Horace Davey is an authority of another kind. Hard-headed, incisive and logical, he strikes at the root of the present abuses. But I do not propose to enter into this discussion; the forthcoming registration appeals have more of present interest. The condition of things with which we are brought face to face is this: Our legislature undoubtenly intended to enfranchise undergraduates of the universities, and the persons who, being in the employment of large commercial establishments, reside on the premises. Whether or not it was wished to include soldiers in permanent barracks, people like the military knights of Windsor and the members of clerical communities residing in disciplined establishments is more than can be conjectured. In the result, as far as the opinions of revising barristers go - which is not far undergraduates are incapable of wielding the franchise, partly because they are compelled to be of good behavior, and partly because college authorities make a dishonest use of their rooms during the long vacation. Shopmen resident upon their master's premises have also been adjudged unenfranchised. Soldiers have been enfranchised in some places, and not in others. From a mass of contradictory decisions one clear result comes, which is that Parliament cannot express itself with sufficient clearness to meet the views of revising barristers. Hereupon the public

falls hip and thigh upon the draughtsman of the act, thinking nothing of the fact that between the draft as it left his hands and the act as it was issued from the queen's printers there was the same difference as would be caused in a landscape by Turner by the insertion of figures by a house-painter. Parliament in fact cannot make law with any certainty until it adopts the practice of submitting measures, plus amendments, to some body of competent jurists.

It would be affectation to deny that the legal profession is keenly interested in the impending prosecution of the editor of the Pall Mall Gazette and his accomplices. Undoubtedly this gentleman has his sympathizers, even in the Temple; indeed, a certain young barrister is more or less mixed up in the affair, aud other members of the profession who have amused themselves of late by insulting metropolitan magistrates in the interests of the "Social Democrats," or 'Democratic Socialists"- the terms appear to be regarded as synonymous- may be suspected of similar sympathies. But the majority of the profession are united in the hope that the presiding judge at the next sittings of the Central Criminal Court will make the offenders clearly understand that the law does not deal in bruta fulmina. Granting that Mr. Stead's motives were irreproachable, he deliberately broke the law, and must pay the cost. "He who wills the end, wills the means," say Mr. Stead's admirers; but the law adds that the man who wills illegal means shall suffer condign punishment. An Indian civilian magistrate recommends in the Law Quarterly penal servi tude for life; this would more than satisfy the supporters of the majesty of the law, but there is a prevailing impression that a light sentence would be an irretrievable blunder.

The Albany Law Journal.

ALBANY, NOVEMBER 7, 1885.

PROFES

CURRENT TOPICS.

ROFESSOR WAYLAND, of Yale Law School, has been dreaming. He has told his dream to the National Prison Association, at Detroit. He dreamed he saw a trial for manslaughter. A jury was selected in thirty-five minutes. "Of course such a summary method of selection had this result, that an opportunity was thrown away to learn with reference to each juror what his business was, what his political opinions were, what newspapers he usually read, and why, who his neighbors were, with what persons he usually conversed, what reports he had heard, and from whom and when and where, what remarks about the case he had made, and to whom and when and where, and how many times a hundred times? Fifty times? Twenty times? etc., etc.; all this interspersed with sprightly sallies of court-room wit, welcomed by responsive laughter from the delighted crowd in attendance, until the unhappy man is reduced to the desired condition of plastic imbecility, and what should be a dignified and serious investigation is transformed into an unseemly farce." The case for the government was concluded in three hours, notwithstanding "there was much minute medical testimony, given with that careful avoidance of the simpler forms of narrative, and that freedom from excessive condensation which frequently characterize the deciples of Galen when occupying the witness stand." The defense got through in four hours. "No witness was bullied, or badgered, or cajoled, or teased, or ridiculed, or made in any way to feel that the chief end of cross-examination was to render him a laughing stock, or an object of contempt." A letter offered in evidence threatening to be indelicate, the court "cleared the room of all who were not present in an official or professional capacity." "Can I hope to be believed when I assert that this precious document was not subsequently surrendered to reporters, and was not offensively prominent in the closing argument of counsel?" The defense closed in four hours. Then there was an intermission of two hours. The arguments consumed three hours, the charge half an hour, the jury deliberated two hours. Entire time, fourteen hours. dict of guilty, pronounced by nine of the twelve jurors, was followed by imprisonment, and though the defendant was "of a social grade much above those by whom he was surrounded, he was not detailed for easy clerical work, or provided with superior accommodations, but clothed in the regulation prison uniform, was made in no respect to differ from his fellow convicts." A petition for pardon presented a few weeks afterward was refused. Of course it is evident enough that all this was a dream. But says the learned professor in conclusion: "Let me cast aside the last remaining shred VOL. 32-No. 19.

A ver

of concealment, and openly avow that the trial which I have made the text of this brief discourse took place in Honolulu, the capital city of the Hawaiian Islands, during the early part of the present year." Well, if we ever intend to commit manslaughter we shall keep away from Honolulu.

In connection with our leading article this week we may call attention to an excellent address delivered this month at the Law School of the University of Oregon, by Professor R. H. Thornton, on "The Profession and Practice of the Law in America and in England." On the point of a division of labor between barristers and attorneys, Mr. Thornton remarks: "Within the purview of his calling he (the American lawyer) is like Sir Francis Bacon, taking all knowledge to be his province. There is an undeniable disadvantage in this, because the necessity of universal information tends to make a man superficial, just as a gold plate, when beaten out over a wide space, is apt to become alarmingly thin. This is a very serious danger, and it is to be confronted by diligent attention to those principles upon which all cases ultimately rest. But there is a corresponding advantage in the matter, because a lawyer, using this diligence, obtains a better notion of the law as a whole, and is led to perceive analogies between things which at first sight appear widely separated from each other. Both of these considerations furnish incentives to studious labor, for since a member of the bar in this city, for example, is open to consultation on every conceivable topic; to-day it may be on the validity of a will; to-morrow on the circumstances of a collision on the Columbia river; this week on the liabilities which have accrued under a mercantile contract; next week on the merits of contending equities in a case of attachment or assignment, you will readily see how wide the scope of legal vision is, and how necessary it is to be equipped with a knowledge of the great principles and leading distinctions, which are like roads and sign-posts to an adventurous traveller. And in fact the multitude of decided cases have become so embarrassing that experienced lawyers are more and more inclined to rely on the methods of independent analysis, while voluminous citations are frequently a monument of misplaced industry. * * * We have now seen that the American lawyer is less of a specialist than the English lawyer, because he combines the functions of barrister and solicitor, and because the process of subdivision of professional work is only beginging to develop itself here." It seems to us that the strongest argument in favor of a division of duties is the fact that a barrister is much more apt than the attorney to seize upon and emphasize the strong points of the case, and much less apt to fritter away his strength upon the minor points. This is the effect of fresh, clear and comparatively impartial vision.

In connection with the article in another column on "Bequests for Masses," we call attention to the