was upon the ground, and immediately or within half an hour after the injury directed the defect causing the injury to be repaired, his declarations as to the unsafe condition of the appliance, made during this time, are properly admissible as part of the res gesta. Colo. Sup. Ct., Jan. 27, 1888. New York & Colo. Min. Syndicate & Co. v. Rogers. Opinion by Helm, J. this he is borne out by the cases, as will be seen by reference to Hill v. Boston, 122 Mass. 344, where they are largely collated and commented upon. The New England idea is that creating villages and cities by legislative action does not by implication impose upon them civil liability for the neglect of corporate duties in respect of those matters that are governmental in their nature, and which they administer, as it were, for and in behalf of the State, such as the control of streets and the like; while on the other hand, in respect of these matters that are not governmental in their nature, but are for the private advantage and emolument of the municipality, such as water works and the like, they are held liable much as an individual or a private corporation aggregate would be. But it is unnecessary to pursue the subject further, for we regard the question settled in this State by Welsh v. Village of Rutland, 56 Vt. 228. The only answer the plaintiff makes to that case is that the village was only a quasi municipal corporation, and was so regarded by the court, and that the case was such as to render seemingly unnecessary the discussion as to the liability of such corporations in respect of such matters. But the village of Rutland is as much a municipal corporation proper as the city of Burlington is, and its chartered powers and privileges are much the same, barring the form of government; and although in that case the chief justice speaks of quasi corporations as if the village was one, yet the court did not so regard it, and he evidently is speaking in a general way of public corporations as distinguished from private corporations aggregate; not intending to assign the village to that class of public corporations technically called "quasi corporations," because on account of the limited number of their corporate powers, they rank so low in the scale of corporate existence. Counties, school districts, and perhaps towns, are of this class. But cities and incorporated villages are nowhere called or treated as "quasi corporations," but as municipal corporations proper-as having the most of corporate life; but they are all public corporations, and agencies in the administration of civil government. And further on in the opinion the chief justice speaks of municipal corporations, and argues along the line of the law applicable to such corporations proper; which shows that the case was not put upon the ground that the village was a quasi corporation. As to its not having been necessary for the court to discuss the subject, it is sufficient to say that the case was treated as involving the question, and the point was fully discussed and decided; and on this further discussion and consideration we are confirmed in the correctness of our former views, and reaffirm them. Vt. Sup. Ct., Feb. 7, 1888. Weller v. City of Burlington. Opinion by Rowell, J. MUNICIPAL CORPORATIONS-COASTING IN STREETS VIOLATION OF Ordinance.-Municipal corporations, in the absence of a statutory enactment, though negligent in not enforcing an ordinance, are not liable for injuries caused by coasting in the public streets in violation of such ordinance. It is said that this case is distinguishable from all others on this subject, in that here a majority of the citizens and tax payers approved of the practice of coasting. But this makes no legal difference; for a city cannot be affected in such matters by the individual actions of its citizens, any more than a town can be by such action of its citizens, and it has always been held that a town cannot be thus affected. It is true that there is a difference between cities, which are voluntary corporations, existing by special charters, and towns, which are involuntary corporations, with privileges and duties more limited and restricted than those of cities; but does that difference go to the extent claimed here? for it is certain that a town would not be liable in a case like this. The fundamental proposition of the plaintiff is that inasmuch as the law confers upon the city power and authority over its streets, it therefore by implication imposes upon it a duty to prevent the nuisance of coasting thereon, and that for an injury resulting from a negligent omission of such duty, an action lies; in other words, that the duty creates the liability. And the argument is that the grant to cities of corporate franchise is usually made only at the request of the citizens to be incorporated, and is supposed to be a valuable privilege, and a consideration for the duties imposed; that larger powers of self-government are given to them than to towns and counties-larger privileges in the acquisition and control of corporate property; special authority to use their streets for the peculiar convenience of their citizens in various ways not otherwise permissible; that a grant from the State of a portion of the sovereign power, and an acceptance thereof for these beneficial purposes, raise an implied promise on the part of the corporation to perform its corporate duties, not for the benefit of the State only, but for the benefit of every individual interested in their performance as well; and that having accepted a valuable franchise on condition of performing certain public duties, they stand like private corporations aggregate, and are held to contract for the performance of those duties. The decisions in this country on this subject are not uniform, and Judge Dillon groups them into the following classes: (1) Those in which neither chartered cities nor counties are held to an implied civil liability; (2) those in which both chartered cities and counties are thus held for neglect of duty; (3) those in which municipal corporations proper, such as chartered cities, are thus held for damage caused to travellers for defective and unsafe streets under their control, but which deny that such liability attaches to counties and other quasi corporations in respect of highways and bridges under their control. He says this last distinction has received judi-ing the inclosure of a sum of money by said persons to cial sanction in a large majority of the States where legislation is silent as to corporate liability, but that the reason for the distinction is not so satisfactory as could be desired. But in New England, he says, towns and cities are treated alike in this respect, and that there is no implied liability here upon either for injuries refulting from defective streets and sidewalks, but that such liability is wholly statutory. And in POST-OFFICE-USE OF MAILS TO DEFRAUD-"HEIRS TO ENGLISH FORTUNES."-An indictment under section 5480, Rev. Stat. U. S., alleged that Joseph Hoef * linger, * * on the eighth day of August, 1887, * * having then and there devised a certain scheme and artifice to defraud certain persons to the grand jurors unknown, by falsely pretending, in and through certain letters, to be seeking information that would show and lead said persons to believe that they were heirs to large fortunes in England, and request him (the said Hoeflinger), with intent fraudulently to * plained of, were given. Fertich v. Michener, 111 Ind. 472. Ind. Sup. Ct., Feb. 9, 1888. Vanvactor v. Stale. Opinion by Niblock, J. to-wit," and then set out in haec verba the contents of offenses are committed, and that he made no coma letter addressed to Newton M. Abbett, Indianapo-plaint or protest at the time the blows, since comlis, Indiana. Held, on demurrer to indictment (1) that the indictment sufficiently described a scheme or artifice to defraud that was to be accomplished by using the post-office establishment of the United States; (2) that it was unnecessary to aver that the statements contained in such letter were false, inasmuch as the offense described by the statute did not depend upon the question whether the letter placed in the mail in execution of the fraudulent scheme contained true or false statements. U. S. Dist. Ct., E. D. Mo., 1887. United States v. Hoeflinger. Opinion by Thayer, J. SCHOOLS-AUTHORITY OF TEACHER CORPORAL PUNISHMENT.-A pupil having been guilty of insubordination, his teacher, the appellant, after consulting with the township trustee, offered him his choice of a whipping or expulsion. He chose the former, which was inflicted with a two-pronged switch from a tree, nine sharp blows being received. The pupil made no outcry, and the next morning came back to school as usual without showing any injury. The whipping was painful, and some abrasion of the skin was produced; but there was nothing to show any intentional, undue severity or improper motive on the part of the teacher. Held, that the evidence did not justify a conviction of assault and battery. The switch used was not an inappropriate weapon for a boy of Patrick's age of sixteen years and apparent vigor. Patrick's offense as a breach of good deportment in & school was not one to be overlooked or treated lightly. It was calculated, and was most likely intended to humilitate Vanvactor in the presence of his pupils, and its tendency was to impair his influence in the government of his school. The motive was apparently revenge for having been required to stand by the stove for a time, as a punishment for a previous violation of good order. When the alternative of leaving the school or taking a whipping was presented to him, Patrick did not object to it, either as unreasonable or unjust. After consultation and mature deliberation, he decided to accept a whipping, on condition that it be administered privately. In a spirit of evident forbearance, the request thus implied was acceded to. With all these preparations in view, Patrick had no reason to expect that the chastisement would be a merely formal and painless ceremony. The legitimate object of chastisement is to inflict punishment by the pain which it causes as well as the degredation which it implies. It does not therefore necessarily follow that because pain was produced, or that some abrasion of the skin resulted from a switch, a chastisement was either cruel or excessive. When a proper weapon has been used, the character of the chastisement, with reference to any alleged cruelty or excess, must be determined by the nature of the offense, the age, the physical and mental condition, as well as the personal attributes of the pupil, and the deportment of the teacher, keeping in view the presumptions to which we have alluded. All the circumstances lead us to the conclusion that if Vauvactor really gave harder blows than ought to have been given, the error was one of judgment only, and hence not one of improper or unlawful motive. The statement of Patrick that Vanvactor laid on the blows hard, as if he was angry, was, when explained and taken in connection with other evidence as stated, too trivial to materially conflict with the conclusion thus reached. It must be borne in mind that Patrick was not peremptorily required to submit to corporal TRADE-MARKS -INJUNCTION ΤΟ PROTECT-EVIDENCE.-Complainants were manufacturers of silk thread, and on the best quality of thread used a particular device. Defendant, acting for a third person, sold a quantity of thread bearing this device, under the belief that it was the best quality of complainants' manufacture; but it was discovered afterward that the silk was of a quality very much inferior, that it was in fact complainants' silk, but had been redyed; and defendant then took back the silk and held it for the true owner. Held, that this would not be sufficient grounds for an injunction restraining defendant from selling an inferior silk with the device used for complainants' best quality. Penn. Sup. Ct., Feb. 6, 1888. Appeal of Wilcox. Opinion per Curiam. WILLS-CONTRACT TO MAKE A WILL-VALIDITY.A written contract, to make a will and bequeath the one-half of all one's estate to another, is not void. Something is said about the policy of upholding contracts such as that under consideration. However this may be, it is now too well settled to be open to question that a person may make a valid contract, binding himself to make a particular disposition of his property by last will and testament. The only inquiry which the law justifies in case of an agreement to devise or bequeath property, founded on a valid consideration, is as to the validity of the agreement, and whether or not it was entered into fairly, without surprise or imposition, and whether it is reasonable and not against public morals. Caviness v. Rushton,101 Ind. 501; Wallace v. Long, 5 N. E. Rep. 666; Watson v. Mahan, 20 Ind. 223; Bell v. Hewitt, 24 id. 280; Lee v. Carter, 52 id. 342; Johnson v. Hubbell, 10 N. J. Eq. 332; 66 Am. Dec. 773; Wright v. Wright, 31 Mich. 380; Sutton v. Hayden, 62 Mo. 101; Logan v. McGinnis, 12 Penn. St. 27. Since the chief incentive to the acquisition of property is the right that every man has to dispose of that which he accumulates in the manner he may judge best, it has been well said that "it is not only in harmony with sound principle that a person may make a valid agreement, binding himself to dispose of his property in a particular way, by last will and testament, but it is supported by an almost unbroken current of authorities, both English and American." 66 Am. Dec. 784. If such an agreement is in writing, so as to satisfy the statute of frauds, or if it has been performed in such a manner as to be taken out of the operation of the statute, an action for its specific en forcement may be maintained, or an action for damages may be maintained in special cases. Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Wallace v. Long, supra. The case of Schutt v. Missionary Soc., 41 N. J. Eq. 115, is in many respects analogous to the present case. In the case cited a contract between an uncle and nephew, which had been consummated by correspondence, was enforced, the result of the correspondence being an agreement on the part of the uncle to make his nephew heir to his estate, on condition that the latter would comply with the requests of the former. Ind. Sup. Ct., Feb. 8, 1888. Roehl v. Haumesser. Opinion by Mitchell, C. J. OLD SURVEYS. [APPENING a few days since into the office of Mr. un pleasant consequences, in preference to a milder and latterly a much more usual and more approved method of enforcing discipline in the schools when grave randa for the trial recently of a case at Schoharie, involving surveys of Bouck's and of Lawyer's patents in 1759 and 1765. By his permission we give them below for the benefit of counsel who may be called upon to investigate old lines, and to young lawyers as an example of Mr. Moak's preparations for the trial of a cause. MEMORANDA FOR EXAMINATION OF SURVEYORS. 2. Expansion and contraction of between sum- 3. Mistake chain bearers as to number of pins Order of General Term reversed, order of Special Term modified in accordance with the report of the referee, and as modified affirmed with costs as to appellant in both courts-In re City of Rochester to acquire water rights; William Hamilton, appellant, v. George K. Smith, executor, etc., respondent.—Order of General Term reversed, and judgment of trial court affirmed with costs-Charles W. Tarbell, appellant. v. Royal Exchange Shipping Company, limited, respondent. Judgment and conviction of larceny from the person affirmed-People, respondent, v. Audrew S. Merwin, appellant. Judgment affirmed with costsCaroline M. H. Searing, appellant, v. Village of Sara. toga Springs, respondent. Judgment of Albany Circuit and General Term, in favor of plaintiff's recovery of $3,500 damages for injuries caused by the driver of a car too hurriedly starting his team, affirmed with costs-Jennie Hope, respondent, v. Troy & Lansing 5. Errors from failure of chain bearers to Compass-defects in: Trautwine, 165-6; Gillespie, defects in correctness: Failure of needle to defects in precision: Failure to indicate mistakes in reading: Needle not straight. needle: Loss of magnetism, so that to variations of needle: Trautwine, 165-6; annual: Gillespie, 177. daily: Trautwine, 165; Gillespie, 111-2, irregular: Gillespie, 176. and judgment absolute ordered for defendant with costs-Edward N. Waltermire, appellant, v. Maria Waltermire, respondent.-Judgment reversed and new trial granted-People, respondent, v. Charles E. Kearney, appellant.-Judgment affirmed with costs -Henry Bester and others, appellants, v. Henry S. Beuger and others, respondents.-Judgment affirmed with costs-Gideon S. Wheaton, respondent, v. Delaware & Hudson Canal Company, appellant. Held, railroad companies liable for accidents and injuries occasioned by horses on highways being frightened by the escape of steam from standing locomotives.-Judg. ment affirmed with costs-Edmund Coffin, Jr., appellant, v. William C. Lester and another, respondents. -Appeal dismissed with costs-People, ex rel. Joseph A. Gardner, respondent, v. Stephen B. French and others, police commissioners, etc., appellants.— Appeal dismissed with costs-Nathan Davis, respondent, v. New York, Lake Erie and Western Railroad Company, appellant.- -Order affirmed with costsSusan v. Platt v. Anna R. Platt, appellant, and Catharine C. Platt and another, respondents.-Appeal dismissed without costs, with leave to the parties to apply to the General Term for a rehearing, on the ground that the motion was unnecessary, the original appeal from the order of confirmation having been in substance an appeal from the report and appraisal-In re Application of the Staten Island Rapid Transit Company to acquire lands, etc.- -Order affirmed with local attraction: Trautwine, 166; Colvin, costs-People, ex rel. Newton A. Calkins, appellant, 84. secular: Gillespie, 177, 180. v. Supervisors of Greene county, respondents.-Appeal dismissed with costs-Simon August and others, remedy for; making uniform: Gillespie, appellants, v. National Park Bank of New York, re 184. Errors: Humoring. Trautwine, 90. Old fences: Gillespie, 127. Old lines: Gillespie, 127-8, 180, 181-3, 498, 509. Old lines: Finding variations by; Carhart's Survey. ing. 210; Colvin's Report, 1886, appendix, 83, 84. Platting: Defect in from paper. Trautwine, 91. Transit: Much more accurate than compass. Trautwine, 91. MAGNETIC DECLINATIONS (OR VARIATIONS) AT AL BANY. spondent.-Judgment affirmed with costs--Leonard v. Gardner and another, respondents, v. Gabriel Schwob and others, appellants.-Order dismissing appeal vacated-Gundloch v. Hensler.-Motion to dismiss granted without costs-Badger v. Appleton. -Motion to dismiss granted without costs-Bank of the Metropolis v. Keinker. Ordered: That the court take a recess from this date to Monday, the 1st day of October, at 10 o'clock, A. M. of that day, at the Capitol, in the city of Albany, when the call of the new calendar will be resumed. The Albany Law Journal. ALBANY, JULY 14, 1888. CURRENT TOPICS. * * * * * * been at Gettysburg with Brother Longstreet and Brother Gordon, hugging the hireling generals of the tyrannical north on the spot where that foul jester, "old Abe," uttered his immortal little address. We shall not discuss the comparative merits of Jeff Davis and Abraham Lincoln, but must express our surprise that our friend should regard our statements as "news." We thought that all well regulated people, south as well as north, regarded the matter very much as we do. But let us hope that we shall both live long enough to see what estimate history will put on the two men, and which it will pronounce the better friend of the south, and that in a green old age the Virginia will acknowledge his error, like the candid and goodnatured gentleman we deem him. THE editor of the Virginia Law Journal, whom we have always greatly admired being doubtless thereunto induced in some measure by the kind things he has said of us--in some remarks on our recent comments on a decision as to what constitutes a "newspaper," after quoting our lament that "we are not a newspaper," proceeds: "We should be slow to decide that question against him, seeing the scope he usually allows himself. A part of the But there are times when we regret that "we are court's description of a newspaper is that it contains not a newspaper." Especially in vacation, when intelligence of current events and news of general in- food for current topics is scarce, and it goes hard terest. Has not the JOURNAL a column of 'current to find once a week a few items of interest to lawtopics?' And then we suppose it must regard its yers without straying too far over the boundary fiery assaults upon Jefferson Davis, Mr. Justice which separates law from politics, or literature, or Lamar and other 'traitors,' 'rebels' and 'secession- theology, or science. This necessity has made us ists' as news of 'general interest.' And in a still prematurely aged. We imagine that we might more recent issue it has some things to say about have gained a success as a political editor, and in Abraham Lincoln which have no very obvious con- that opinion we have been confirmed by Mr. Bishnection with law. In reviewing Governor Boutwell's op's recent affirmation that we are a “blackguard.” book, "The Lawyer, the Statesman and the Soldier," How easy it would be to get up half a dozen neat he says of Lincoln that his character is only just little editorials once a week if we were unrestrained now beginning to be appreciated by the world in its by considerations of truth, or fairness, or decency, unique beauty and glory.' The good- or probability, or knowledge, or good judgment! ness and greatness of * the noblest pro- Sometimes we yearn to take a hand in the presiduct of American civilization * * wisest, dential tussle with gloves, you know -- we don't most patient and most humane spirit want to kill anybody. But with a retainer by the admired and sainted in his death. Such is the party of the red bandanna or that of the inherited homage which the world pays to virtue,' etc. The log-cabin, and with carte blanche for vituperation, JOURNAL not long since gave Mr. Bishop a very and sarcasm, and innuendo, and sophistry, and cant, just and deserved hauling over the coals because of and credulity, and statistics based in imagination, certain extravagant, grotesque and childish state- we think we could keep up with the procession ments of his regarding the common law. We im- and gain "inflooence." We might even invent or agine that unfortunate gentleman will smile when buy forged letters against an opponent, and get ourbe reads the above laudation of the statesman who selves sued by a friend for libel in order to show insisted that the States bore the same relation to the letters. There is another good thing about the Union that the counties bore to the States, and political newspapering one is never called to acthe paragon of virtue whose daily conversation was count for his mistakes or mis-statements like a legal said to have been interlarded with jests which can- editor; indeed, these are what is expected of him. not be put into print. But we do not mean to His realm is mere opinion, and no one is responsiquarrel with the JOURNAL's taste; we only give ble for his opinions. This country is governed by this as an illustration of the claims it might make newspapers · no longer by lawyers. Still, we think to be included in the select circle of the news- we shall stick to the law. It is better to die papers. We also commend the Columbia Law respectable, although poor. Times to apply for membership in the same class; no doubt the Tribune would propose its name after reading the following, which we take from a recent issue of the Times: 'It is encouraging to mark the great advance made in many localities in the south, both in business enterprise and the grade of life. It is most remarkable in those sections where northern influence and capital have found their abode. * * * Many localities are however far behind the time politically and morally,'" etc. We infer from this that our good friend has not VOL. 38-No. 2. - It would have delighted Judge Folger to glance over the table of cases in the last volume of this journal, and note the odd names. We have rarely seen so many in one volume. Bulwinkle, Hudnut, Comfort, Cover, Dugger, Herbage, Drumgoode, Laimbeer, Mares, Deacons, Pancoast, Hyman, Hair, Moonelis, Handyside, for example. But all other queer names are as nothing in comparison with the title of the first cause in which we ever did any Per law copying "Nicholas Dick against Debby Ann In making some researches among the records of our Court of Appeals for 1860 we came across some choice passages in the brief of an appellant's attorney, criticising the conduct of the trial judge. The angry gentleman cried: "Jury trials are a farce, and jurors pliant instruments," etc. "One solid, honest, capable judge, appointed for life, would outweigh all the fanciful benefits of the boasted system of trial by jury." 'What lot, or part, or voice, or word has a jury had in determining this commonlaw claim? None, except that of a slave who gives 66 an answer as the master dictates." "He has set * * * up an image, framed in his own mind, * * * ** * criticised was John A. Lott, afterward chief com tion now exhibits! Kent, Walworth, Cowen, Spencer, Nelson, Denio, Comstock, Peckham, Church, Folger, Hill, Reynolds, Evarts, Field, and others only a little less pre-eminent, and all within this century! Can any other State or country boast the like? NOTES OF CASES. [N Lippincott v. Lasher, New Jersey Court of carriers of merchandise in the city of Salem. While not so employed they would spend their time with their horses and wagons in the public street in front of the complainant's dwelling, to such an extent that unpleasant and noxious odors were created, and at certain times carried into the dwelling of the complainant, making his home uncomfortable. Held, subject to injunction. Bird, V. C., said: "In consequence of the presence of these horses, flies became more numerous and troublesome than they otherwise would have been, and the atmosphere became foul and so vitiated as to obliged the complainant to close the doors and windows of his house. Now if the proof sustains these allegations of the complainant, most clearly he is entitled to an injunction. None will pretend that the defendants had a right to appropriate any portion of the public street in this manner to their own private purposes. The public highway is only designated for the use of the public as a passage-way, as a means of communication between different points. It never was intended or designed to be used as a stable or as a private yard or other inclosure for the convenience of men of business. And yet the complainant would have no special right to the protection of this court unless he suffered some special injury over and above what the public generally suffer from such obstruction or use of the highway. In my judgment he has shown such special injury. It is clearly proved that the odors coming directly from this locality, and which were occasioned by the use made of this locality by the owners of these horses, penetrated the dwelling of this complainant, and made it not only unpleasant and uncomfortable but exceedingly offensive. I do not forget that an offer was made to show by certain respectable citizens, glass-blowers, who spend a great deal A full-length and life-size portrait of David Dud- of time near by while they were not employed in ley Field now hangs opposite that of Mr. Evarts in their ordinary daily work, who swear that they the corridor adjoining the court of appeals' cham- never noticed any of these offensive odors. It is ber at the capitol. These portraits both have a poor said however that they were smokers, and generlight and hang too high. We are quite willing to ally employed their time sitting together thus in look up to these gentlemen as lawyers, but not as social chat, and smoking as well, and that they portraits. The portrait of Mr. Field is a strong and would not be very likely to detect the odors comfaithful piece of work by Mr. Robert Gordon Har- plained of did they exist. It is not necessary that die, a promising young artist of New York. In our I should determine the extent of the capacity of judgment it is the most meritorious of the entire these men to detect these odors, nor whether they collection, except that of Judge Folger, by Eastman were in the immediate neighborhood at such times Johnson. The painter had a good subject. Mr. as were most favorable for their dissemination; for Field stands erect and vigorous with the burden of as long as the complainant and his wife and aneighty-two years resting lightly upon him. What other witness are unimpeached before me, their tesa list of strong intellects or great lawyers this collec-timony to the effect that at certain periods of the missioner of appeals. How differently counsel talk now-a-days! Judges are sometimes arbitrary and disagreeable, but counsel do not so much as formerly imagine that the judge has taken pains beforehand to inquire into the particular suit, and is determined corruptly to take sides. No man's suit is so important as it was in old times. |