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their nature, are not obnoxious to the objection of being in contravention of the Constitution, unless they impair vested rights or create personal liabilities. Coffin v. Rich, 45 Me. 507; Read v. Frankfort Bank, 23 id. 318; Oriental Bank v. Freeze, 18 id. 109. There is no vested right in any particular remedy. Previous to the statute in question a defendant sued upon a contract made on Sunday could avail himself of the defense that it was a Sunday contract; but the fact that such a statutory defense existed gave him no vested right, and therefore in this case no vested right has been impaired by the statute. It in no way operates upon the contract, or renders it valid. It exists precisely as it did before. The statute applies only to future remedies, and merely requires the defendant to restore the consideration received by him in the participation of an unlawful act as a condition upon which he may make his defense. Holmes v. French, 68 Me. 529. Berry v. Clary. Opinion by Foster, J. [Decided Aug. 25, 1885.]

KANSAS SUPREME COURT ABSTRACT.*

FRAUD-KNOWLEDGE BY VENDEE-NOTICE.-Actual knowledge by a vendee of the fraudulent intent of the vendor is not essential to render the sale void. If the facts brought to his attention are such as to awaken suspicion, and lead a man of ordinary prudence to nake inquiry, he is chargeable with notice of the fraudulent intent, and with participation in the fraud. Phillips v. Reitz, 16 Kas. 396; Kurtz v. Miller, 26 id. 314; McDonald v. Gaunt, 30 id. 693. Gollober v. Martin. Opinion by Johnston, J. (See 45 Am. Rep. 178.) ELECTIONS-WILL OF ELECTORS-APPARENT BALLOTS TO BE COUNTED.-At a general election in M. county, an order was made by the board of county commissioners, submitting to the electors of that county a proposition to vote bonds, and prescribing that those voting in favor of the proposition should have written or printed on their ballots the words "For the bonds," and those voting against the proposition should have written or printed on their ballots the words "Against the bonds." On some of the ballots cast there were, first, the names of candidates for National, State and county officers, and at the bottom thereof there were printed the words "For the bonds." A pencil-mark had been drawn through these words, and immediately underneath was written in pencil the word "Against." Held, under the facts in the case, that the will of the electors in casting these ballots is fairly apparent, and that they should be counted as votes against the proposition.

Clark v. Board. Opinion by Johnston, J.

MICHIGAN SUPREME COURT ABSTRACT.

CONTRACT-VARIED BY PAROL-STATUTE OF FRAUDS -ESTOPPEL.-It was a maxim of the common law that no contract or agreement could be dissolved except by matter of as high a nature as that which first made it obligatory (Broom, Leg. Max. 407), and based on this maxim, there are many authorities which hold that a contract under seal cannot be varied or discharged by a mere parol agreement while the contract itself remains entire and unbroken. Wentz v. Dehaven, 1 Serg. & R. 312; McMurphy v. Garland, 47 N. H. 316; Kuhn v. Stevens, 30 N. Y. Super. 544; West v. Blakeway, 2 Man. & G. 729; Cordwent v. Hunt, 8 Taunt. 596; Eddy v. Graves, 23 Wend. 82; Spence v. Healey, 8 Exch. 668; Sinard v. Patterson, 3 Blatchf. 353; Miller v. Hemphill, 9 Ark. 488; Patrick v. Adams, 29 Vt. 376. *To appear in 33 Kansas Reports.

In modern times the attaching of a seal to a signature is not regarded with that reverence which was formerly the case, and when the Legislature enacted that a seal or wafer was unnecessary, but that a scroll or other device should be sufficient, the solemnity attending the execution of such contract vanished; and when the Legislature further provided that no instrument should be held invalid for want of a seal, and it became under the statute mere prima facie evidence of consideration, the affixing of seals, except to instruments required by law to be under seal, became of no practical importance. Consequently it has been held by this court that parties who have made written contracts may vary them afterward as much as they please by parol, if the nature of the agreement is not such that the law requires them to be in writing. Seaman v. O'Hara, 29 Mich. 66; Westchester F. Ins. Co. v. Earle, 33 id. 152; Roger Williams Ins. Co. v. Carrington, 43 id. 256. Of course the principle above stated implies that the subsequent agreement by which the orignal contract is varied must be a valid and binding agreement between the parties. It must be based upon a sufficient consideration, and must not itself be void under the statute of frauds. If it lacked the elements of a valid contract, it would be a nudum pactum, and not binding upon either party, in which case the original contract would remain intact. It was proper therefore for the court to instruct the jury, as he did in this case, as follows: "If the arrangement was simply for a postponement of the execution of the contract, and the execution of the contract, under the terms of the postponement, might have been accomplished within one year from its date, by its terms, the plaintiff cannot in this action recover, because in that case the contract which he has made - which is made by the subsequent agreement - is a different contract than that npon which he declares and seeks to recover at your hands. If, upon the other hand, the contract, by its terms - by the terms of the oral agreement between the parties- the contract alleged to have been made could not be performed within one year from the date of the oral agreement in relation to it, it would not be good as a contract. It might be treated by the parties as a waiver of the right upon either side to insist upon the immediate performance of the contract, but it would not be good as a contract to take the place of the original contract." Under this charge the jury, in returning a verdict for the plaintiff, must have found that the oral arrangement between the parties relative to the extension of the time of performance, could not by its terms be performed within one year from the time of the making thereof. It was therefore void under the statute of frauds applicable to such agreements, and as a necessary consequence was a mere nullity, and could not be used for any purpose. Chamberlain v. Dow, 10 Mich. 319; Hall v. Soule, 11 id. 494; Holland v. Hoyt, 14 id. 238; Grimes v. Van Vechten, 20 id. 410; Scott v. Bush, 26 id. 421. No person can complain of an injury caused by the act or conduct of a party to which he has consented; and no one who causes or sanctions the breach of an agreement can recover damages for its non-performance, or interpose it as a defense to an action upon the contract. Shaw v. Lewistown Turnpike Co., 2 Pen. & W. 454; McKee v. Miller, 4 Blackf. 222; Young v. Hunter, 6 N. Y. 203; Boutwell v. O'Keefe, 32 Barb. 434; Hart v. Lauman, 29 id. 410; Pike v. Butler, 4 id. 654; Mayor, etc., v. Butler, 1 id. 325; Stone v. Sprague, 20 id. 509; French v. New, id. 481; Jewell v. Blandford, 7 Dana, 472; Smith v. Edmunds, 16 Vt. 687; McCombs v. McKennan, 2 Watts & S. 216. Barton v. Gray. Opinion by Champlin, J.

[Decided Sept. 29, 1885.]

INSURANCE LAW.

FIRE POLICY-PROOFS OF LOSS-WAIVER-QUESTION OF FACT. This is an action of assumpsit on a policy of fire insurance, and comes up on the report of a referee, upon which the court below rendered a judgment for the plaintiffs. The defendant relies upon various specified defects in the proof of loss submitted by the assured; and in reply it is insisted, first, that the declarations of Gray, the special agent of the company sent to adjust the loss, which were made to the plaintiff, John G. Findeisen, and were, according to the referee's findings, "that the claim against the company was worthless, and that the loss would not be paid, because he burned the property," amounted to a waiver of the proofs of loss required by the conditions of the policy. It is established beyond question that such requirements are for the benefit of the company, and may be waived by it; and also that being conditions of forfeiture, they are not favored by the law, and a waiver of them is often found on slight evidence. Thus it has been held that an unqualified refusal by the company to pay the loss upon other specified grounds, made before the expiration of the time within which it was the duty of the assured, by the terms of the policy, to file his proofs of loss, is an act from which the triers may find a waiver of such proofs. See authorities cited in Lyon v. Travelers' Ins. Co., 31 Alb. L. J. 59; 20 N. W. Rep. 829; and in Mosley v. Vt. M. F. I. Co., 55 Vt. 142. But it is equally well settled that a waiver is, as remarked by Taft, J., in Donahue v. Windsor County Ins. Co., 56 Vt. 382, "an intentional relinquishment of a known right;" and that whether or not there has been a waiver is always a question of facts for the jury. Donahue v. Ins. Co., supra; Home Ins. Co. v. Baltimore Warehouse Co., 16 Am. L. Reg. 162; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35, and authorities supra. Findeisen v. Met. Fire Ins. Co. Opinion by Royce, C. J. (57 Vt. 520.)

NEW BOOKS AND NEW EDITIONS.

BEACH ON CONTRIBUTORY NEGLIGENCE. This treatise is by Charles Fisk Beach, Jr., of Kentucky, and published by Baker, Voorhis & Co., of New York. It is the only separate treatise on the subject. The editor has judged wisely that it is needed. The work is divided as follows: Negligence and contributory negligence generally; general rule; comparative negligence, the modified rule in Illinois, Kansas, Georgia, Tennessee, and Kentucky; imputed contributory negligence of third persons; rule as affecting railroad corporations; as to passengers, as to strangers; rule as affecting highways other than railroads; law of the road; rule as it qualifies the law of master and servant, or employer and employed of every class; rule in special and particular cases; burden of proof, law and fact. Mr. Beach seems to have exhausted the cases, and has arranged them intelligently. We like his editing better than some of his comments. For example, we do not at all agree with his adhesion to the Kentucky and Federal doctrine of common employment, as illustrated in Railroad Co. v. Ross, 112 U. S. 377, holding that the conductor and the engineer of a railroad train are not fellow-servants. He says this is "the rule of humanity as it may confidently be declared the rule of even justice." We prefer the opinion of Justices Bradley, Matthews, Gray and Blatchford, dissenting in that case, in accordance with the general doctrine, although Mr. Beach "regrets that four justices of such pre-eminent ability felt compelled to dissent, for verily the doctrine of this case has come to stay." This and a few other like instances are the only fault to be found in Mr. Beach's excellent

and useful book. Whatever his opinion, however, he always frankly and clearly states the law. We venture to say that a more practically useful and trustworthy treatise has not been published in many a day.

CHASE'S STEPHEN'S DIGEST OF THE LAW OF EviDENCE.

This excellent digest is admirably edited by George Chase, Esq., a lecturer in the Law School of Columbia College. The notes by the editor are judicious and exhaustive, and render the book one of the completest and most convenient manuals that we have ever seen. The text and notes cover 290 pages; there are tables of contents, of cases and statutes cited, and an elaborate index. It is a workmanlike and satisfactory book, and is well printed, although we should have preferred a larger type.

FORCE'S HARRIS' CRIMINAL LAW.

LAWSON'S DEFENCES TO CRIME.

The former of these works, published by Rob't Clarke & Co., of Cincinnati, is a concise treatise in one volume of moderate size; the latter, published by Sumner Whitney & Co., of San Francisco, is to be in five large volumes, of which the third is before us, consisting of leading cases with notes. The former is of a sort which ordinarily we do not greatly commend. We much prefer an American work with references to the English decisions. It is fairly executed on its basis. Mr. Lawson's work is a vast and important one, and is executed, as all his work is, with exceeding industry and clearness. The present volume covers the subjects of corporations, husband and wife, infancy, principal and agent, consent, accident, ignorance and mistake of law and of fact, duress, attempts, omissions. We do not find the case of Queen v. Dee, Irish Ex. Div., Dec., 1884; 31 A. L. J. 43, on the subject of consent to sexual intercourse by a wife supposing the defendant to be her husband. This seems a rather unfortunate omission. But we believe Mr. Lawson rarely makes a slip, and we can commend his editorial work unhesitatingly and warmly. The volume is handsomely printed.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, Nov. 24, 1885:

Order of General Term affirmed and judgment absolute directed for defendant, with costs-Giles H. F. Van Horne, ex'rs, etc., appellants, v. Wm. Campbell et al., respondents.-Judgment affirmed with costsWright Robbins, appellant, v. John S. McClure, individually and as ex'r, respondent; Nelson B. Killmer, appellant, v. N. Y. C. & H. R. R. Co., respondent; Wm. H. Hersee et al., appellant, v. Roderick D. Porter, respondent; Adolph Herrmann, respondent, v. Niagra Fire Ins. Co., appellant; Charles G. Havens et al., respondents v. Benj. A. Willis, impld., appellant; Benjamin Guffey and another, respondents, v. N. Y. Cent. Ins. Co., appellant; Michael Mulry, respondent, v. John L. C. Norton, appellant; Thomas Stillman, respondent, v. Mary S. Van Beuren, impld., appellant: Oregon Steamship Co., respondent, v. G. K. Otis, appellant; John Gottleib, respondent, v. New Eork, L. E. & W. R. Co., appellant; Equitable Life Assur. Soc. of United States v. Emma L. Bostwick and another, appellants; John Donovan, respondent, Philip Ebling et al., respondent, v. Paul Bauer, appellant; James V. Haviland and others, appellants, v. Wm. H. Schmohl, impld., respondent; Mary Garvey, respondent, v. City of Buffalo; Frank Guillaume, respondent, v. General Transatlantic Co., appellants; Wm. Gleason, respondent, v. Calvin H. Bell, appellant; Hiram Clark appel

lant, v. Sidney Stillman and others, comm'rs, etc., respondents; Mathew B. Almon v. James G. Hamilton et al., appellants; Bank of Nova Scotia, respondent, v. James G. Hamilton et al., appellants; Adaline R. Edington, ex'r, appellant, v. Ætna Life Ins. Co., respondent; John Baizley and another, respondent, v. James H. Workman and another, appellants; Wm. H. Parsons and others, respondents, v. Daniel J. Sprague impld., appellant; Erastus Corning, respondent, v. James T. Walker, appellant; Amzi B. Davenport, appellaut, v. Brooklyn City R. Co., respondent; John Foley and others, appellants, v. Gilbert M. Spier et al., respondents; Henry Blumenthal, respondent, v. Lyman G. Bloomingdale and another, appellants; Ellen Nichols, respondent, v. Brooklyn City R., appellant; Ike A. Nemelty, appellant, v. Joseph L. Naylor et al., respondents; Franklin Warren, respondent, v. John Chadwick, appellant; Annie E. Cornell, respondent, v. Augustus H. Ward and others, appellants; Geo. A. Smith, respondent, v. Joseph Kenyon, appellant; Oscar Waring, respondent, v. Frances A. Waring, appellant; Chas. Ditberner, Jr., applt., v. S. Rogers, respt.Judgment reversed, new trial granted, costs to abide the event-Emma I. Vedder, adm'x, respondent, v. Village of Little Falls, appellant; Samuel Baron, respondent, v. Aaron Brunmer et al., appellants; Caroline A. Stewart, appellant, v. George Crysler et al., respondents; Thomas H. Stringham, appellant, v. Cornelia M. Stewart, respondent; Elizabeth Ann Shults, respondent, v. German Fingar, appellant.-Sentences reversed and annulled, indictments quashed, and defendant discharged-People, respondents, v. Frank R. Sherwin, appellant.-Order affirmed with costsContinental Stove Service Company, appellant, v. Curtis, Clark and others, respondents; William H. Abell and others, respondents, v. New York, Lackawanna and Western R. Co., appellant; People, ex rel. Amelia M. Robinson, appellants, v. Michael O'Keefe, registrar, etc. Judgment of General Term reversed and judgment entered on the report of the referee affirmed with costs-William King, Jr., appellant, v. Thomas Leighton, respondent. - -Order of General Term reversed and judgment of Special Term affirmed with costs-Emma J. Nicholls, appellant, v. Phebe L. Wentworth, respondent.-Judgment affirmed with costs, with leave to defendant to answer on payment of costs within twenty days after their adjustment-Wm. W. Scriver and another, respondents, v. Eli B. Smith, appellant. Judgment affirmed-People, respondents, v. Guiseppe Guidici, appellant.-Judgment modified so as to charge plaintiff's legacy with lawful interest upon the land pro rata with the legacy to Moses McCorn, and as modified affirmed without costs to either party in this court-Sarah McCorn, respondent, v. John McCorn and others, appellants.Order of General Term affirmed and judgment absolute ordered for plaintiff with costs-James L. Sharp, respondent, v. David J. Hutchinson, impleaded, appellant.-Judgment affirmed, and judgment absolute on the stipulation with costs-Daniel Sweeny, respondent, v. Joanua L. St. John and others, appellants.-Denied with costs-J. Warren Day, appellant, v. Emilie Nason and another, respondents.

NOTES.

THE TABLE OF FEES. AIR: The Laird o' Cockpen.

O, how oft hae I heard

That our whole stock in trade

Is a desk for a yaird

And a pen for a spade. While it maun be agreed There's a world guid in these, Yet your best pock o' seed Is the table o' fees.

For the desk and the stule,
Wi' a sigh let me say,
May be props for a fule

At the end of the day;
But like manna and snaw,

Or a peck o' white peas,
For the doves of the law
Is the table o' fees.

Let the merchantman boast
O' his fine speculations,
And the clergyman hoast
O'er his lands allocations;
For a steady on-cost,
Banking up the bawbees,
Like a warm dreepin' roast
Is the table o' fees.
Man! it gangs wi' a clack

Like a mill makin' flour; Three-and-fourpence a crack! Six-and-eightpence an hour. Half-a-crown for a wink,

And a shilling a sneeze,
Come like stour o'sma' ink
Frae the table o' fees.

I could hand ye my stule,
Ruler, ink-horn and desk;
I could hand ye my quill,
Or whate'er ye micht ask;
And could yet wi' my tongue,
Whilk nae man can appease,
Fill a cask tae the bung

Frae the table o' fees.

What does the Solicitors' Journal think a petard is? It speaks of au "engineer hoist on his own petard." Perhaps it is a gallows or a derrick. Besides, Shakespeare said "petar," probably thinking of salt-petre.

To the ALBANY LAW JOURNAL, otherwise known as "The Ruler of the Queen's Navee," we can only say that we congratulate ourselves as having furnished it a subject for the only amusing reading that has appeared in its columns since Esek Cowen wrote his funny letter against the proposed Code. Finally, as an answer to the charge of youth, we can only modestly refer to Pitt's famous answer to a similar charge. -Columbia Jurist.

The ALBANY LAW JOURNAL criticises the Central Law Journal for comparing the late Emory A. Storrs, in the point of brilliaut ability and oratorical power, with Erskine, Grattan, Choate, Prentiss and Ingersoll, and suggests that he was more like the lamented and brilliant orator and advocate, Matt Carpenter. Mr. Storrs was sui generis—like himself, and no one else; and was no more like Matt Carpenter than David Davis is like Roscoe Conkling.-Washington Law Journal. Well, this settles it.

From a sketch of Mr. Irving Browne, the editor of the ALBANY LAW JOURNAL, which appears in a gallery of brief biographies of "Men of Note" in a leading Albany daily paper, we learn that a new volume of critical essays written by him, entitled 'Iconoclasm and Whitewash,' is now in press, and will soon be published in New York." This suggestive and incisive title is characteristic of Mr. Browne's acute and facile pen, and of the liberal, free and discriminating tone which characterizes the conduct of his journal, and has made it the leading weekly of its class in this country; and it awakens interest to see his treatment of the broken images of the past, or the image breakers of to-day, and of the decorators of defacement, whoever and whatever these all may be, which his papers will doubtless amuse and instruct by analyzing and satirizing.-New York Daily Register.

L

The Albany Law
Law Journal.

ALBANY, DECEMBER 5, 1885.

CURRENT TOPICS.

ORD COLERIDGE writes us' on the subject of .Chief Justice Waite's recent visit to England as follows: "I was sorry to see from the ALBANY LAW JOURNAL that several of our papers have found fault with the reception of your good and honored chief justice. I can only say that we did our best, but he came at a most unfortunate season. The circuits were going on, and most of the judges | were out of London. But he came here one day, and I announced him, and the bar received him standing, and stood up when he went away. He sat at my right hand as if he had been a member of the court. We had a reception of queen's counsel, and a curious case as to conusance of plea by the University of Oxford, in which the charters of Henry VIII and Queen Elizabeth were produced in original, and the chief justice inspected them both. I pressed him and Mrs. Waite to come and stay with me, but (wisely, I think) he preferred the freedom of a hotel. However, I got together all the great lawyers I could, and gave him and Mrs. Waite a dinner. I did all in my power in other ways, not merely as a duty, but from gratitude to him and his colleagues for the great kindness and honor they showed me, and from deep and unfeigned regard for the chief justice himself. He writes to me in a strain of thorough satisfaction: 'You know how well I was taken care of in London. Everywhere on my travels I was equally well treated. My name, if I chose to give it, was a passport to any place I wanted to see, and on the circuit I met Baron Pollock at Lincoln, and Mathew and Wills at York. They did every thing that was possible for me, and I enjoyed every moment of my stay with them.

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We always like to publish something to interest the wives, daughters and sisters of our subscribers. We have been assured by many ladies that they read our JOURNAL every week with pleasure — that is to say, the editorial portions of it. So this week we have to chronicle that Miss Rebecca Jones think that is the name — who went to jail rather than testify in a New York will case, and lay there until the State could not afford to feed her any longer, seems to have turned up in London. The Law Times says: "Mr. Justice Pearson gave a very wholesome lesson to obstinate litigants on Monday last in a case of Haigh v. Haigh. A lady, who was the defendant in the action, and who had a good prima facie defense, had put in an affidavit of documents, two of which were the deposit books relating to sums in a savings bank, the right to these sums being the question at issue in the action. When an order for inspection of these documents was made she refused to deliver them up, and although her solicitor in the strongest possible terms, both in writing and orally, explained to her the danger of persisting in such a refusal, at the same time pointing out that she could be present at the inspection, and need never allow the documents to go out of her sight, all was of no avail. The consequence was that an order was obtained by the plaintiffs to strike out her statement of defense, judgment went by default, and an order was subsequently made upon her to concur in transferring the money into court. She then instructed another solicitor, and a motion was made on her behalf under Order XXVII, r. 15, by which any judgment * The bar of the north-eastern by default * * may be set aside by the court or a judge upon such terms as to costs or otherwise as such court or judge may think fit.' Mr. Justice Pearson expressed the great reluctance which he and every other judge must always feel at dismissing an action on grounds entirely apart from its merits. But he stated that he could find no case in the books in which a judgment had been set aside where it had been obtained under circumstances at all resembling those of the case before him, and he accordingly held that the motion must be dismissed with costs." We have often thought that the obstinacy of womankind might well be utilized in warfare. For example, if women had been in exclusive possession and command of Richmond and Vicksburg, we doubt that General Grant, obstinate as he was well known to be, would ever have got in. The only way to counterbalance such an advantage would be to constitute the besieging army of women, and give out that the place was full of sealskin wraps and the like. Women are unquestionably much more obstinate in litigation than

circuit were very anxious that I should dine with them, but I had to decline.' There is more to the same effect, but this will show you that the chief justice himself had no sense of slight or of discourtesy. I had proposed a bar dinner to him in one of the halls of the Inns of Court, but so many of the bench and bar must have been absent that it was thought better not to have one. I hope you will let your readers know that as far as we could we did honor to a man who most justly deserves it on every ground, public and private." This is certainly a very reasonable answer to all that has been said- and most that has been said has been said by the London law journals and the London newspapers- - on this subject. We have never found our English brethren lacking in courtesy to our great lawyers and statesmen, and we have not believed them lacking in this instance.

In speaking of the McArdle case, in which our Court of Appeals recently recognized the validity VOL. 32-No. 23.

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It seems that Mr. Justice Field is not in favor of attorneys coming "heeled "— we believe that is the technical expression in such case made and provided into his court, even when he is sitting in San Francisco. He even went so far as to say that if an attorney should come armed into court he should be fired out of the bar. And a very proper and wholesome ruling it was. The fact that witnesses come armed is no excuse. The ministers of justice must take their chances at the hands of justice, and not adopt measures to meet personal violence with private resistance. The proper course is, as Mr. Justice Field says, to report the apprehended danger to the court, and let the offender be arrested. For ourselves we should very much dislike to be upon the bench when counsel and witness were shooting at one another below. - for bullets, like sparks, are prone to fly upward.

Another case of disorderly conduct in court is Owens v. State, Texas Supreme Court, 1 Tex. Ct. Rep. 385, an election case, in which a new trial was granted for the reason, among others, that the audi ence were allowed to applaud on the trial. The court said: "It was shown that a large number of persons attended the trial during the whole time that it was in progress. That whenever any thing favorable to the relator occurred they greeted it with bursts of applause. That the court checked these demonstrations from time to time, but they were renewed as often as similar occasions called them forth, and they do not seem to have been effectually and finally quelled till the trial was over. It is a sad, if not a humiliating thought, that such unbecoming conduct in a court of justice could not have been effectually and permanently stopped upon its first demonstration. The district courts are armed with full power to punish contempts. This was a contempt of court of the most serious character calculated, as it was, to control the verdict of the jury by outside influences. The court would have been justified in using the strong arm of the law to suppress this conduct, or if these failed, in stopping the trial of the cause until it was fully assured there would be no further demonstration of the kind. As this was not done, there is nothing left for us but to apply the rule universally inforced in this court when the jury may have been influenced in giving an incorrect verdict by passion or prejudice caused by the misconduct of others. We have in such cases constantly reversed the judgment and ordered a new trial. This is a proper case for the inforcement of that rule. The applause may not have influenced the jury, and perhaps did not, but as it had a tendency so to do, and the jury had admitted one box and excluded others upon substantially the same testimony, there is a proba

bility that their finding may have been affected in some measure by the applause, however conscientiously they may have attempted to act in making up their verdict."

We flatter ourselves that we learn something new every day. To-day we have learned what "floaters" are. They are criminals at large under suspended sentence. The Southern Law Times informs us of

this, and denounces the practice very vigorously, and we think justly, saying that in large cities, at tions without material interruption." The Times least, "the scamps usually continue their depredafurther says that the practice is without the authority of law.

IN

NOTES OF CASES.

N Darrigan v. N. Y. & N. E. R. Co., Connecticut Supreme Court of Errors, it was held that a railroad train-dispatcher and a locomotive engineer are not fellow-servants. The court said: "The negligence of the train-dispatcher is admitted, but the defendant claimed that such negligence was the negligence of a fellow-servant, for which it is not liable; and that is the first question presented for our consideration. In Wilson v. Willimantic Linen Co., 50 Conn. 433, this court held that a master was bound to provide for his servant a reasonably safe place for his work, and reasonably safe appliances. An application of that principle to a railroad company would require it to keep its road-bed, rollingstock, tools and implements in good and safe condition, to adopt rules and regulations adapted to its business so as to guard against accidents, and to employ skillful and competent agents and employees in every department of its service. In short, all employers shall be vigilant in the use of means, and in the adoption of measures to make the servants in their employ reasonably safe. To that extent the master assumes the risk. On the other hand the servant assumes the natural and ordinary risks incident to the business, including those arising from the negligence of his fellow-servants. To a certain extent the distinction between the two classes of risks is obvious, and in most cases it is easy to determine on which side of the dividing line the case falls, but along the line on either side is a wide margin of debatable ground. It would be idle to attempt to notice any considerable number of the many cases that have been decided on this subject. They are so conflicting that it is impossible to reconcile them, and it is equally impossible to extract from them any general rule or principle by which future cases, or any considerable portion of them, may be determined. Differing views are entertained by different courts in similar cases. To some extent each case is determined by the peculiar circumstances attending it. Nor are the courts uniform in their statement of the principles upon which the master's exemption rests. The traindispatcher in respect to the matter of moving these

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