those disqualifications of a voter under the act of March 22, 1882, the objection is not well taken that represents the inquiry into the fact by the officers of registration as an unlawful mode of prosecuting for crime." The case shows clearly that the test is not whether the persons excluded could be prosecuted for any crime, but whether the facts bring the parties within the scope of the act. Idaho Sup. Ct., March 6, 1888. Innis v. Bolton. Opinion by Broderick, J.

CRIMINAL LAW LARCENY WHAT CONSTITUTES ASPORTATION.- Evidence that defendant was found in possession of an overcoat taken from a dummy figure on a sidewalk, but still fastened to it by a chain through the sleeves, does not show larceny. "Larceny" as defined in the Penal Code of this State, is the felonious stealing, taking, carrying, dealing or driving away the personal property of another." This is substantially the common-law definition, under which it was held that it must be shown that the goods were severed from the possession or custody of the owner, and in the possession of the thief, though it be but for a moment. Thus where goods were tied by a string, the other end of which was fastened to the counter, and the thief took the goods and carried them toward the door as far as the string would permit, and was then stopped, this was held not to be a severance from the owner's possession, and consequently no felony. 3 Greenl. Ev., § 155. "In the language of the old definition of larceny," says Bishop, "the goods taken must be carried away. But they need not be retained in the possession of the thief, neither need they be removed from the owner's premises. The doctrine is that any removal, however slight, of the entire article, which is not attached either to the soil or to any thing not removed, is sufficient; while nothing short of this will do." 2 Bish. Crim. Law, 794. The attorney-general admits that this is the doctrine of the English cases. In State v. Jones, 65 N. C. 395, the court says: "There must be an asportation of the article alleged to be stolen, to complete the crime of larceny. The question as to what constitutes a sufficient asportation has given rise to many nice distinctions in the courts of England, and the rules there established have been generally observed by the courts of this country." Cal. Sup. Ct., March 28, 1888. People v. Myer. Opinion by Sharpstein, J. DAMAGES-PERSONAL INJURIES-DUTY TO PROCURE PROPER MEDICAL TREATMENT.- Where defendants ask a special charge that "if plaintiff's knee-cap could have been cured by having an operation performed which would not have been dangerous, it was his duty to do so, and that he would only be entitled to recover for sufferings up to the time he could have been cured; " and the court charged that "if the plaintiff by his own negligence, after receiving his injuries, aggravated them, he could not recover for the aggravated injury, and that it was the duty of the plaintiff to use ordinary care and prudence to cure his injuries as speedily as practicable, considering all circumstances; and if he was negligent in this duty, he would be entitled only to such damages as he would have sustained had he so performed his duty"-the latter charge is sufficiently explicit, and there is no necessity for special charge. The evidence of experts was conflicting as to the expediency and result of an operation re moving the dead bone in the knee-cap, some contending that it was indicated, and ought to be done, and the sooner done the better; that when done, the issue would stop and the wound heal, but the knee would be weakened. Others declared in favor of conservative surgery-that is, to give it a chance to heal itself if it would-and that an operation might result in a stiff joint, or necessitate amputation of the leg. All the surgeons and physicians agreed that such results

were improbable. It was the duty of plaintiff to have had an operation performed on his knee if it could have been done without danger, and with assurance that it would be benefited. He was only required to act as a man of ordinary intelligence and prudence would have acted under the circumstances. Klutts v. Railway Co., 75 Mo. 642; 1 Suth. Dam. 148. Tex. Sup. Ct., Feb. 7, 1888. Gulf, C. & S. F. Ry. Co. v. Coon, Opinion by Collard, J.

DURESS.-When the creditor of the husband induces the wife to join with her husband in giving a mortgage on her real estate to secure his debt, by telling her that her husband has been guilty of the crime of embezzlement, and can be imprisoned for it, and that another, who was interested, had just said he could see him in jail before he would do any thing to relieve him, and it appears that such statements created fear or just apprehension, the reasonable conclusion is that the free agency of the wife was overcome; that the execution of the mortgage was obtained by undue pressure, and that it cannot be enforced against the wife's real estate. Eadie v. Slimmon, 26 N. Y. 9; Rau v. Von Zedlitz, 132 Mass. 164; Lyon v. Tallmadge, 14 Johns. 501, 513; Lamplugh v. Lamplugh, 1 Dick. 411; Davies v. Insurance Co., 8 Ch. Div. 469; Sharon v. Gager, 46 Conn. 189; Reed v. Exum, 84 N. C. 430; Manufacturing Co. v. Rawson, 50 Iowa, 634; Thurman v. Burt, 53 Ill. 129; Harshaw v. Dobson, 64 N. C. 385; Harris v. Carmody, 131 Mass. 51; Smith v. Allis, 52 Wis. 337. So far as I have observed, in no one of the cases which I have considered up to this point has the instrument alleged to have been procured by oppression been solemnized by an acknowledgment of its free and voluntary execution, according to the statute in such case made and provided, by a public officer authorized to take such acknowledgment, except that of Sharon v. Gager. We are not however left without the aid of a judicial examination of the subject with such an important fact in the case. In Bank v. Copeland, 18 Md. 305, the court was called upon to deal with the subject thus presented. The mortgage was given by Copeland and his wife upon the real estate of the wife. There was an acknowledgment and separate examination of the wife duly certified by the officer authorized to take such acknowledgments. Upon proceedings to foreclose a decree pro confesso was taken against the husband. Mrs. Copeland under leave answered separately, showing that at the time of the execution of the paper she was in bed and suffering from a severe spell of sickness, and was weakened and much reduced by nervous prostration; and that while in such a state of physical debility she was forced to sign the paper in the presence of her husband by means of threats and menaces which she was unable to resist; and that the means used were frauduleut. The court find these allegations true and say: "The execution of the mortgage was preceded by personal menaces and threats of her husband to destroy the property by fire if she did not execute it, and the fact that it was executed and acknowledged involuntarily as a consequence cannot be denied. The resort to measures thus violent and harsh leads inevitably to the conclusion that her consent could not have been obtained otherwise. Her acknowledgment that it was free and voluntary, and not induced by fear, as between the parties to the deed, is not conclusive of the fact that it was; nor can it, with regard to the evidence in the case be so considered. * * A husband, who by extreme harshness compels a wife to execute a deed of her property against her will, and then, in the form prescribed by law for her protection, to sanction the wrong inflicted by acknowledging its involuntary execution to be voluntary and without fear, cannot by reason of the mere formal ac

*

knowledgment entitle himself, nor any one in whose interests such a wrong may be attempted, to set up a claim upon the deed as a valid conveyance. As the execution and acknowledgment of the mortgage in this case by Mrs. Copeland appears to have been induced by harshness and threats in the exercise of an unwarrantable authority so excessive as to subjugate | and control the freedom of her will, the aid of the court to support and enforce its provisions against her must be refused." In the case of Sharon v. Gager, supra, the treasurer of a town became a defaulter, and the selectmen of the town urged an aunt of this treasurer to secure the amount due by a mortgage on her lands. She had lived with the nephew for many years, and was greatly attached to him. An agent of the selectmen said to her: "You know what the consequence is. It is $500 fine and imprisonment." The aunt executed and acknowledged a mortgage on her real estate. The court held that she could avoid it. In McCandless v. Engle, 51 Penn. St. 309, the court said: "Less than actual duress will avoid an acknowledgment of deed of conveyance or mortgage by a wife, provided it be known to the party claiming through it. *** It is enough if it be shown that the wife did it under moral constraint, that is by threats, persecution and harshness of her husband to force her to set aside her own free will." Michener v. Cavender, 38 Penn. St. 334; Louden v. Blythe, 16 id. 532; Harris v. Carmody, 131 Mass. 51. The case of Remington v. Wright, supra, is not in conflict with the views of the learned judge expressed in the cases cited otherwise than is so frequently the conflict between cases at law and in equity, which conflict is the principal seat or throne of equity. And this distinction is fully recognized by Mr. Justice Reed, who delivered the opinion in the last-named case. Therefore it is plain that pressure which does not amount to duress at common law may be considered in equity as sufficient to set aside or to resist a contract. Whenever a contract is procured by such influences as overcome the free agency of the contracting party, whether parent or child, husband or wife, such influences afford an equitable defense. To this end all the cases unerringly and unwaveringly tend, and that the undoubted statement of facts in the case before me bring it within these principles requires but little argument. N. J. Ct. Ch., Feb. 23, 1888. Lomerson v. Johnson. Opinion by Bird, V. C.

EVIDENCE-EXPERT CONDITION OF LADDER.-A brakeman was descending the ladder at the end of a moving car, when by the breaking loose of a handhold, he was thrown under the car and killed. Held, that it was not a case for expert evidence. There are exceptions to the general rule that witnesses must state facts, and not give their opinions, as where the subject of inquiry is so indefinite and general in its nature as not to be susceptible of direct proof. Eyermay v. Sheehan, 52 Mo. 222; Greenwell v. Crow, 73 id. 638. But such is not the case here. There is no evidence tending to show that the defendant or any of its agents knew the hand-hold was defectively attached. If the plaintiff recover, it is on the ground that by reasonable and ordinary care in inspecting the cars the defect would have been discovered. The witness was allowed to testify to the very thing which the jurors were called upon to determine from the facts, not from the opinion of this or any other witness. His opinion practically ruled the whole case, if believed. It was substituting his opinion for the judgment of the jurors. There was no fact in the case which for its solution called for scientific or professional knowledge, or for any peculiar knowledge, or experience. The subject of inquiry was one upon which men of common information were capable of forming a judgment. It was therefore not a case for expert evidence. Gavisk v. Railroad Co., 49 Mo. 274;

Rosenheim v. Insurance Co., 33 id. 230. Mo. Sup. Ct., March 19, 1888. Gutridge v. Missouri Pac. Ry. Co. Opinion by Black, J. Brace, J., dissents.

MUNICIPAL CORPORATIONS POWERS — EXCLUSIVE PRIVILEGES.-A city charter gave the council power to make, amend and repeal any ordinances deemed desirable for lighting the streets, and taking charge of them, but did not confer in express terms exclusive power over them. Held, that it did not by implication give the city control of the streets to the exclusion of the sovereign power of the State, and that an ordinance granting exclusive use of the streets for wires and poles for electric lights for fifteen years was ultra vires and void. Is there not a "fair, reasonable and substantial doubt" whether the Legislature intended under the powers granted-"to regulate the lighting of the streets and the protection of the public lamps," "to provide for and regulate the lighting of the public lamps," "to care for and supervise the streets, and to prescribe, control and regulate the manner in which the highways, streets, etc., shall be used,"-to confer upon the common council of Grand Rapids the exclusive sovereign authority and control over the streets of the city? Is such exclusive control necessarily implied in or incident to the powers expressly granted, or essential to the declared objects and purposes intrusted to the city government? Is not the granting of sovereign franchises in the public highways of the State a "matter extra-municipal or unusual in its nature?" In confining the inhabitants of the city for the period of fifteen years to one company for their supply of the improved light, are they not deprived of the benefit of all competition during that period, and is there not thus imposed upon them the burden of quasi monopoly, while they are at the same time prevented from availing themselves of any and all improvements which may be made in the systems of lighting? There can be but one answer to these questions, unless we disregard well established principles, and ignore the authority of judicial decisions on the subject. The rights and beneficial user which the public or the inhabitants of cities have and are entitled to enjoy in the streets of a populous place are much more enlarged and various than with respect to ordinary highways, and there is a corresponding presumption against the intention to restrict or curtail such rights by conferring exclusive privileges therein. The decided weight of judicial authority is against the right of the common council of Grand Rapids to confer upon complainant the exclusive franchise which the ordinance of 1880 attempts to grant. Dill. Mun. Corp. (2d ed.), § 547-citing the well-considered case of State v. Coke Co., 18 Ohio St. 262, which has not only been followed in Ohio (see Railroad Co. v. Smith, 29 Ohio St. 291), but recognized with approval by the Supreme Court of the United States. See Gas Co. v. Light Co., 115 U. S. 659. To the same effect see Dill. Mun. Corp. (2d ed.), §§ 61, 548, 549; Cooley Const. Lim. Marg., pp. 38, 207, 208; Gas-Light Co. v. Gas Co., 25 Conn. 19 (this case has been qualified in so far as it denied to the Legislature itself the power to grant an exclusive franchise, but in respect to the city's power to do so it has not been questioned); Gas-Light Co. v. Saginaw, 28 Fed. Rep. 529; Gas Co. v. Middletown, 59 N. Y. 228. In harmony with these decisions, and resting upon the same general principles which they aunounce, are the cases which deny to municipalities, under the grant of power to establish and regulate ferries within their limits, the authority to confer exclusive ferry franchises upon others. See Dill. Mun. Corp. (2d ed.), § 78; East Hartford v. Bridge Co., 10 How. 511; Minturn v. Larue, 23 id. 435; Harrison v. State, 9 Mo. 530; McEwen v. Taylor, 4 G. Greene, 532; Wright v. Nagle, 101 U. S. 796. So in reference to street railways it is well settled by the authorities that under general powers, such as the city of Grand Rapids possesses over its

streets and highways, its common council' could not confer upon individuals or a private corporation the exclusive right to use the city's highways for street railway purposes. See Cooley Const. Lim. 207, 208; Davis v. Mayor of New York, 14 N. Y. 506; Milhau v. Sharp, 27 id. 611; Railroad Co. v. Smith, 29 Ohio St. 291; Railroad Co. v. Railroad Co., 10 Wall. 52; Railroad Co. v. Railway Co., 12 Fed. Rep. 308; Railroad Co. v. Railway Co. 24 id. 306; Railway Co. v. Railway Co., 79 Ala. 465; Dill. Mun. Corp. (2d ed.), § 558, and cases cited. The same principle is applied in reference to market-houses with which a municipality may be authorized to provide itself. Gale v. Kalamazoo, 23 Mich. 344. In Logan v. Pyne, 43 Iowa, 524, under a power to license and regulate hackney carriages, omnibuses and other vehicles, an ordinance was passed granting the exclusive privilege and franchise of running for hire omnibuses for the purpose of carrying persons, etc. It was held that the granting of such exclusive rights was not within the city's power. There are several decisions of State courts which sustain the complainant's claim. The most direct and best reasoned is that of City of Newport v. Light Co., 8 Ky. Law Rep. 22; Gas-Light Co. v. City of Saginaw, 28 Fed. Rep. 537; Des Moines St. Ry. case (Iowa), 33 N. W. Rep. 610. But these are not in harmony with sound principles, nor with the great weight of adjudged cases on the question here involved, and they cannot therefore be recognized and followed. U. S. Cir. Ct., W. D. Mich, S. D., Jan. 9, 1888. Grand Rapids E. L. & P. Co. v. Grand Rapids E. E. L. & F. G. Co. Opinion by Jackson, J.

NEGLIGENCE-DEFECTIVE BRIDGE-CONTRIBUTORY NEGLIGENCE.-Plaintiff attempted to cross a bridge, constructed by defendant on a portion of the public road, crossing its right of way. Plaintiff knew the bridge was not in good repair, but that it was crossed by travellers in wagons and on horseback. This was the only practicable crossing for him in the direction he was travelling. While crossing on horseback he was injured by reason of a defect in the bridge. Held, that a verdict for plaintiff would not be set aside on the ground that his conduct showed contributory negligence. It is well settled that if a highway or street be obstructed or out of repair, and this be known to a passenger, he cannot be held faultless if he threw himself upon the obstruction or encountered the dangerprovided another way of reaching his destination be open to him, which is safe and not much longer than that he prefers to travel. City of Erie v. Magill, 101 Penn. St. 616; Schaefler v. Sandusky, 33 Ohio St. 246; City of Centralia v. Krouse, 64 Ill. 19; Parkhill v. Brighton, 61 Iowa, 101; Wilson v. Charlestown, 8 Allen, 137. As far as our research has extended, these are the cases which most strongly support the position taken by the appellant. But in each of them the proposition is stated with the important qualification that there must be another safe way by which the danger may be avoided; and it is to be noted that in every one stress is laid upon the point that there was another convenient route. The reason is that a prudent person may choose to pass along an unsafe highway, rather than abandon his trip, although he would have avoided the route if another had been open to him. It is accordingly held on the other hand, that if the passenger or traveller have no other convenient way, the mere fact that he takes the chances of the danger, and attempts a passage, is not controlling proof of his negligence. Whether the act be negligent or not depends upon the circumstances attending it; and the question is for the determination of the jury. City Council v. Wright, 72 Ala. 411; City of Huntington v. Breen, 77 Ind. 29; Turnpike Co. v. Jackson, 86 id. 111; Commissioners v. Burgess, 61 Md. 29; Dewire v. Bailey, 131 Mass. 169; Dooley v. Meriden, 44 Conn.

117; Evans v. Utica, 69 N. Y. 166; Templeton v. Montpelier, 56 Vt. 328; Loewer v. Sedalia, 77 Mo. 431; Reed v. Northfield, 13 Pick. 94; Osage City v. Brown, 27 Kans. 74; City of Salina v. Trosper, id. 545; City of Aurora v. Hillman, 90 Ill. 61. In Dewire v. Bailey, supra, the Supreme Court of Massachusetts say: "We think the law in a case of this kind is that only when the nature of the obstruction is such that the court can say that it is not consistent with reasonable prudence and care that any person having knowledge of the obstruction should proceed to pass over it in the manner attempted, can the court rule that such knowledge prevents the plaintiff from maintaining his action. In Commissioners v. Burgess, supra, the Maryland court used this language: "In this case the knowledge of the plaintiff was some evidence of negligence proper to go to the jury, to be considered by them in conjunction with the condition of the bridge of which he had knowledge, and to be found a bar only in case they found the bridge from the proof to be wholly unfit for use, and he knew its condition." This language recognizes the correct rule, and is strictly applicable to the case now before us. The defendant, by showing that many persons habitually used the bridge with safety, proved that an attempt to cross it was not conclusive evidence of negligence. Tex. Sup. Ct., Jan. 27, 1888. Gulf, C. & S. F. Ry. Co. v. Gascamp. Opinion by Gaines, J.

SOMET

NOTES.

OMETIME ago we recorded a curious legal case in the hands of Justice Russbottom in Greene county, wherein a young Mr. Jonas Bench had charged Farmer Clutterbuck with assaulting him, and the farmer had made a counter-charge against Bench of trespass. The facts were that Bench, while flirting on the gate with Miss Clutterbuck, had been lifted over the fence by a stray bull, and falling in Mr. Clutterbuck's yard, that gentleman had kicked him. Justice Russbottom, with the uncommon quality of equity which we have noticed as distinguishing him, had informally squelched both complaints, with the advice to young Mr. Bench to leave Miss Clutterbuck alone. The astonishing information now comes that Mr. Bench has eloped with Miss Clutterbuck, and the happy pair, after a week of the usual bridal bliss, have returned to the old homestead, been forgiven by the father, and only await the expiration of the regular summer season to take up their residence in the palatial mansion of Mr. Bench, who proves to be the junior proprietor of the great patent medicine firm of Bench & Son in Brooklyn, with at least a million dollars in his own right. As Justice Russbottom writes us: "It is seldom in all my long career of integrity on the bench that I have been instrumental in my humble way, and by means solely of my clearness of perception, to convey so much happiness to those brought before me as in the two cases of Bench v. Clutterbuck and Clutterbuck v. Bench. I hope to be preserved for many years to serve my fellow beings so well." "I told you in my last," adds the conscientious judge, "that the bull that tossed Mr. Bench was my own bull, and that when he wanted authority to ascertain the ownership of the bull in order to proceed to a suit for damages, I refused to encourage him, as it would not be right for me to take judicial action in a case where I was personally interested. That matter has now been settled. Mr. Bench discovered it was my bull, and he came to me with his blushing bride on his arm and withdrew all intentions of prosecuting the damage suit any further, because of the excellent advice I had given. So you see again, Mr. Editor, that virtue is its own reward even if you never get any better one."—Albany Times.

The Albany Law Journal. Journal.

ALBANY, AUGUST 25, 1888.

CURRENT TOPICS.

listen to some essays and orations, and to drink the healing waters, and possibly dip into a pool at the race-track. Few of the old familiar faces were absent. The Old Guard dies, but does not surrender. From the survivors we missed Messrs. Phelps, Hitchcock, Bonney, Green and Rose, but Messrs. Field, Broadhead, Wright, King, Baldwin, Semmes, Butler, Dillon, Rawle, Hinckley, and the rest were still there. On Thursday when we were present, we heard an address by Gov. Hoadley, and a discussion of two hours about admitting delegates from county and city bar associations, and some reports from Prof. Baldwin. A message of brotherly love

from the new National Bar Association was read.

The matter of the delegates, resulting in a tie vote of 33 to 33, was put over a year quite unanimously. A motion to lay over a year always prevails in this body, with the usual result in the case of the man who runs himself out of breath in getting headway to jump. After Mr. Hoadley's address, members seemed to lose their interest, so that when Prof. Baldwin presented an important report on marriages, domestic and foreign, there was but an handful to

vote.

The great event of course was Gov. Hoadley's address, and that was worth going a hundred miles to hear, at least to an approver of codification, for the accomplished speaker, for an hour, fearlessly spoke the truth about the deplorable condition of our laws. So brilliant, learned, witty, and unanswerable an attack on the common law was never before made, and judging from the prolonged and loud applause at its close, it met with the hearty approval of the audiencesave one. We never knew till now that so few lawyers could make so much noise. with their hands.

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We shall print the address in full. Suffice it now to say, that the speaker vividly showed up the common law in its crudity, absurdity and obsoleteness. He made mince meat of the pretense its only pretended virtue that it enables the judge to do justice to the case in hand by the application of settled principles, untrammeled by the hard bounds of statutes. He demonstrated that under the doctrine of stare decisis it is never able to do this. Its constant cry is such is the law; relief can only be had by legislation. The doctrine of Bertles v. Nunan, as to tenancy by entireties, he cited as an example. "The common law has no power to purge itself." Except for legislation the steam-carrier of to-day is VOL. 38-No. 8.

Parliament, 1818,

spectacle of the prosecuting witness and the acquitted prisoner fighting it out with deadly weapons presumably not firearms. Against the rigor of the maxim of "the greater the truth the greater the libel," and the doctrine that there can be no recovery of damages for an instantaneous death by negligence, there was no relief save from Fox's act and Lord Campbell's act. But if its claim of adaptability and "elasticity" were well founded, it can only come about at the expense of the particular suitors, by declaring a new rule ex post facto; and subjecting the citizen to responsibility to a law not known and declared beforehand, said the speaker, "is the essence of tyranny.” Our law is evolved not by looking around or ahead, but by looking back. In the law as in rowing, we only make progress by We will not spoil keeping our faces to the rear. our readers' appetites by any further synopsis of this admirable address, but leave them to the treat to be spread before them.

If it were not vacation, we should not feel justified in discussing with our correspondent the question of American civilization raised by Mr. Arnold and commented on by Senator Crosby. And now we shall do little more than deny the charge of sensitiveness and consciousness that the criticisms of Mr. Arnold were deserved. We well know that our people have faults of manners and in some ways lack the culture and "civilization" of older countries. But what we claim for our country is that on the whole it has better manners and a larger sense of justice than those older communities in which alone the sensitive Mr. Arnold could consent to live. That critic is open to blame for not taking a broader view than is afforded by questions of titles, hack fares, and personal comfort. When it comes to that, our hack-drivers are no more extortionate, and our inn-keepers much less so, than those of London. Mr. Arnold showed the cockney spirit when he wrote those lines. It is not sensitiveness, but disappointment, that we feel. We say to ourselves, in what other country would it be possible for an unprotected woman to travel far alone? Should we find in this country an army officer insulting such a woman in a railway carriage, and his offense regretted rather than denounced by society? In what country, except one of those where alone Mr. Arnold found himself truly comfortable, should we find a member of the highest class committing adultery and beating his wife, and still toadied to by the others of his class?