“Lawmaking” of this kind does away with this evil, as no one can practive the trade of horseshoer unless he is thoroughly reliable. Colorado, Maryland, Michigan, Minnesota, New York, Ohio and Washington are the States which have legislated on the licensing of horseshoers. In New York and Ohio the law has general application, but in the other States it applies to cities with a certain population. In Washington it applies to cities of the first, second and third class; in Michigan, to cities of 10,000 or over; in Minnesota, to cities of 50,000 or over; in Colorado, to cities of 70,000 or over; in Maryland, to the city of Baltimore and a portion of Baltimore county.

California, Colorado, Illinois, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New York, Oregon, Pennsylvania, Texas, Virginia, Washington and Wisconsin, the District of Columbia and Porto Rico have passed laws which require the examination, registration and licensing of plumbers.

Although the laws of this kind are practically the same in all the States mentioned, they differ a great deal in the scope of their application in the different States. In some States they apply to all cities and towns having underground sewerage systems, while in other States they apply to cities having a stipulated population. In most of the States every person engaged in the occupation of plumbing must obtain a license or register after passing an examination before a special board, while in a few States the companies, firms or individuals running a plumbing establishment must register. The fee in all cases for the examination and license varies in the different States from 50 cents to $5.00.

As railroading is universally acknowledged to be an occupation requiring the services of truthworthy and responsible men, the lawmakers" in many States have taken the matter in hand, with the result that many laws have been enacted which require the examination and licensing of these employees. The States of Alabama, Massachusetts, Ohio and Georgia have laws which demand the examination of steam railroad employees. These laws, however, do not make provision for the official registration of licens. ing of such employees.

Train dispatchers, engineers, conductors, flagmeu. switchmen, firemen, brakemen and trackmen are required to take an examination for color blindness, and a written examination regarding their morals, reputation, sobriety, previous record and knowledge of the rules and regulations of the service. The State of Alabama, perhaps, has more restrictions regarding the employment of persons to work in the railway service than any other State in the Union, and it ought to be proud of it, too.

Massachusetts and Ohio have laws which State that any man in the railroad service, who must dis

tinguish form or color signals, must be examined for defective sight and receive a certificate stating that he is qualified. The Ohio law differs from the Massachusetts law in that it requires a re-examination every two years.

In Georgia telegraph operators must be thoroughly examined before the railroad superintendent or train master, and receive certificates of competency.

Only one State has deemed it necessary to enact laws requiring the examining and licensing of operators of passenger elevators, namely, Minnesota. Many serious accidents are recorded annually from elevator accidents, and in most cases they are caused by the carelessness of incompetent operators; therefore it is surprising that so little attention is being given to this matter by the legislative bodies of the different States.

The Federal government has deemed it necessary to require the examination and licensing of steam engineers, as have also the States of Alabama, Florida, Illinois, Indiana, Iowa, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New York, Ohio and Pennsylvania.

In the case of the Federal statute, it applies to engineers on steam vessels only, as is also the case in the States of New Hampshire and New Jersey. The Federal examination is very severe and in order to pass it, the applicant must be a first-class engineer in every respect. The applicant is examined as to his knowledge of steam machinery, experience as engineers, and other things which go to prove his fitness. If the examination is passed successfully, the applicant receives a license which gives him the right to be employed for a period of one year in the duties of steam engineer. After which another examination is required each year.

The licensing of steam engineers relates only to locomotive engineers, in the State of Alabama. Three classes of licenses are issued to steam engineers in Pennsylvania-one for operating stationary steam boilers and engines, one for operating portable steam boilers and engines, and one for engineers on board water-craft operated by machinery.

The hoisting engineers employed in coal mines are the only ones required to be licensed in the States of Illinois, Indiana and Iowa.

In some States previous experience plays an important part in the granting of licenses. As in these States engineers are so graded. These licenses generally specify the maximum horsepower of the engine the licensee is permitted to operate. In all the States a fee is charged for the examination and the issuance of a license. This fee ranges all the way from $1.00 to $7.50, according to the State in which the applicant desires a license. Each year these licenses must be renewed, which is an annual expenseof $1.00 to the engineer.

Firemen, that is, stationary firemen, are required to be licensed in the States of Massachusetts, Montana and New York. The law of the State of New York applies only to the city of New York, the remainder of the State being excluded. Under this law no one but a citizen of the United States can engage in the occupation of stationary firemen. The law also provides that the application for a license must be signed by a licensed engineer, who must certify that the applicant has been employed under the instruction of a licensed engineer.

Two classes of licenses are issued in Massachusetts, one to operate any boiler, or boilers, and the other to have charge of and operate low-pressure heating boilers, in which the pressure is less than 25 pounds to the square inch. The State law of Montana requires that "all firemen who have charge of steam boilers as to the regulation of feed, water and fuel, where the boilers are so situated as not at all times to be under the eye of the engineer in charge," must pass a regular third-class engineer's examination, and procure the same kind of license.

Many of the States in which mining is a principal

industry have passed laws which require the licensing of coal mine employees. These States are Alabama, Illinois, Indiana, Iowa, Missouri, Montana, Pennsylvania, Tennessee, Utah and Wyoming.

The laws generally relate to the licensing of mine managers, foremen, bosses, fire bosses, mine examiners, etc., but in Pennsylvania the law has a wider scope and includes all miners engaged in the mining of anthracite. The laws of Missouri also provide

that all coal miners must give evidence of experience and qualifications satisfactory to the State Mine Inspectors.

The State of New York is the only State in the Union which requires that employees of street railways must pass an examination. However, this applies to motormen or gripmen only.

Belvidere, Ill., September, 1907.

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GEO. A. Russ.

Medical Expert Testimony.

The salvation of the system of expert evidence, especially as relating to criminal cases, where human life is in the balance, is at stake, and only legislative action can prevent its elimination from our criminal procedure. It is only by arousing public sentiment and public opinion to the exigencies of the situation that we can expect or even hope for any deliverance. The degradation to which is has sank, especially in the recent trial of Thaw, is one of the most deplorable phases of the subject. It is well to look the question fairly in the face.

witness of either the State or the accused, is discredited by all, believed in by none.

It is a blistering shame to the medical profession now that no important case of homicidal insanity is tried where the four or six witnesses on the one side are not met and balanced by a like number on the other.

Judges do not at all consider the medical witness as an important factor, and juries do not pretend to regard it at all, or pay any heed to it, and they do not hesitate to so state, publicly, from their seats as jurymen. As the law now stands and as the evidence comes to the jury, it is of no value whatever, and the juries are perfectly justified in their refusal to even consider it.

In the mind of the great public, it is fast coming to be universally accepted as a fact, that the paid medical expert swears for the side that engages and compensates him.

It is incredible that the medical profession has fallen into such a horrible abyss, as all this implies.

profession do not desire to rest under such a criti cism, and ought not to be forced and put to the blush by the acts of those in high places, who have helped

We feel that the good and true men of that noble

to produce the condition which now exists, and who are entitled to the odium which now rests on the whole profession, because of the sins and cupidity of the few.

factor in criminal cases, might well be styled a law A law abolishing the hypothetical question, as a to diminish the volume of perjury in such cases by

medical witnesses. Medical men are like other men. They do not deserve the odium which rests upon their profession.

They are not untruthful or dishonorable, and they as a whole should not consent that such a state of public distrust should continue.

The fault is in the system itself, and not in the profession of medicine.

The law should be so amended as to make such scandalous conflicts of opinion impossible, upon what the public and the juries consider as an identical question.

All counsel know that medical men are not as a

rule willing to swear to an opinion they do not en

tertain.

The high-minded and clean medical expert does not hestitate to say confidentially to the counsel who calls "You need not him after he has gone over the case, call me in that case; my evidence would not benefit your client."

Every lawyer at all familiar with criminal practice has heard that often. It is not that class of wit nesses who have created the present situation.

It exists in a glaring way on those so-called real estate experts whose names are well known and whom Comptroller Metz has discovered, who in recent condemnation proceedings were hired by the city of New York to swear the value of the property down to a tenth part of its value, and in some cases in my prac tice and within my knowledge, to be of no value at all. So that, no matter what conclusion is reached by the commission as to value, the owner's property is confiscated, because where there is a disputed question of fact as to value, the court will not entertain an appeal, and he is absolutely without redress, because of the deliberate bribery and perjury of the experts.

I know of two such witnesses who have drawn enormous sums from the treasury of the city, as compensation for their services as witnesses in condemnation proceedings, where in some cases they swore lots to be of little or no value, that high-minded and prominent real estate men and dealers placed at $4,000 and $5,000 per lot, and which would now sell for double even that, but this crime brings the owner within the rule as to a contested question of fact.

The comptroller knows these men. Their names are on his books, and he may succeed in his efforts to prevent and arrest their work, and perhaps put them in the penitentiary, where they belong, but he is grappling with the same question which now confronts the courts, and which the law proposed by Judge EMERY, of the Supreme Court of Maine, suggests as a remedy.

The Medico-Legal Society has taken up the question with energy, and will endeavor to bring it to a hearing, and some result.

At the last meeting of the society the president was directed to name a committee to consider the whole

subject, to whom all the communications made or to be made were ordered to be referred.

Chief Judge L. A. EMERY, of Maine, has accepted the chairmanship of that committee.

Chancellor John R. NICHOLSON, of the Supreme Bench of the State of Delaware; Judge Charles G. GARRISON, of the Supreme Bench of New Jersey; AMASA J. COBB, of the Supreme Court of Georgia, and JOHN W. ROWELL, Chief Justice of the Supreme Court of Vermont, consent to take seats on that committee.

Eminent men of the bench of the Supreme Court of several States have been invited to act upon it, and it is now in process of formation.

fessions of law and medicine, and the ablest medical and medico-legal jurists and experts, to see if some relief cannot be found for that condition of degradation into which medical expert evidence has now confessedly fallen.-From Advance Sheet Medico-Legal Journal.

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Private Nuisances.

In McCarty v. Natural Carbonic Gas Co., it was held by the New York Court of Appeals that—to paraphrase its own words—in a country district suitable for country homes, the use of soft coal in a factory so situated that thick black smoke, great in volume and dense in quality, envelopes and discolors a neighboring dwelling house, causing much discomfort and some financial loss to the occupants, may constitute a nuisance when such use of soft coal is not necessary for the practical running of the plant. As the court points out, the law of private nuisance is a law of degree and each case must turn largely upon its peculiar facts. It may, therefore, be illuminative of the general subject to call attention to another carefully considered recent case in which the recovery of damages was sanctioned for an act in the nature of a private nuisance. In Brennan Construction Co. v. Cumberland, in the Court of Appeals of the District of Columbia (May, 1907, 35 Washington Law Reporter, 354), it was held that where petroleum residuum and coal tar escaped from a tank owned by defendant into the Potomac river, and were carried about four blocks below to a point where plaintiffs, who were engaged in the business of hiring, building, and storing boats, had their boathouse, causing damage to the plaintiffs, the escape of the oil from the defendant's tank was the proximate cause of the injury, and the defendant was liable whether or not it was guilty of negligence in respect of the escape of the oil. The court said in part:

"The remaining assignment of error is directed to the ruling that the defendant was liable whether guilty of negligence or not. Whilst the adjudged cases are not in harmony on this question, we have reached the conclusion that the rule followed by the court below was correct. It is true, as appellant contends, that every person has a right to use his property as he pleases so long as he keeps within the law, and observes the rights of those around him. What those rights are depends upon the circumstances surrounding each case. Thus a farmer may without objection maintain a pigsty, while to do so in a crowded city would be to maintain a nuisance. Not

business, it may only be conducted in such a place and in such a manner as not to offend against the rights of others. Who will attempt to justify the maintenance in a crowded city of a storage house

for the keeping of tons of dangerous explosives? And yet the contemplated use of such explosives might be perfectly legal. The objection to their being kept in bulk in such a place is the potential danger to the public. As civilization spreads and the golden rule becomes more and more the guide of human conduct, the rights of property and the rights of the individual are more and more subordinate to the rights of the public; the rights of the few to the rights of the many. Many things that in the early days would have been regarded as mere favors or privileges to be bestowed or withheld at pleasure are to-day regarded as rights which must be respected and protected. And so it has come to pass that many courts have held that a person who places some potentially dangerous substance upon his property-something which, if permitted to escape, is certain to injure othersmust make good the damage occasioned by the escape of such substance, regardless of the question of negli gence. This rule, we think, is just and equitable. If one of two persons must suffer loss, no good reason can be found why the loss should be charged against the one who has in no way contributed thereto. The leading case upon this subject is the case of Fletcher v. Rylands, L. R., 1 Exch. 265). In that case the defendant had constructed a reservoir upon his premises, and the water from this reservoir escaped and injured the plaintiff. The court said: "The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the filth of his neighbor's privy, or whose habitation is made unhealthy by the fumes or noisome vapor of his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor, who has brought something on his property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor's property, should be obliged to make good the damage which ensues if he does not succeed in confining it on his own property: But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think to be the law, whether the things so brought be beasts or water, or filth or stenches.'

"The rule announced in that case has been followed by the Canadian courts and has been adopted with or without modification by many of the courts of the United States. (Berger v. Minneapolis Gaslight Co., 60 Minn. 296; Ottawa Gaslight Co. v. Graham, 28 Ill. 73; Kinnaird v. Standard Oil Co., 89 Ky., 468; Shipley v. Fifty Association, 106 Mass. 194; Gorham v. Gross, 125 Mass. 232, and Lawson v. Price, 45 Md. 123."-N. Y. Law Journal.

Ancient Irish Common Law Pleading.

By JOSEPH M. SULLIVAN, LL. B. When English Procedure supplanted the native Irish Brehon code, the privileges and prerogatives of the English law were granted only to five Irish families or Septs, namely, the O'Neils of Ulster, the O'Connors of Connaught, the O'Briens of Thomond, the O'Lachlans or McLachlans of Meath, and the MacMurroughs, called also Kavanaghs, of Leinster, were received within the pale of English Law; but all the rest were esteemed aliens or enemies and could neither sue nor be sued, even down to the reign of Elizabeth. This, in fact, amounted to a total denial of justice for any wrongs inflicted on the natives. When an English settler was slain, the murderer was executed according to the English law; but the death of a native was compensated by an "erie" or fine, according to the Brehon Code. This immunity from punishment gave to the rich an unlimited right to kill and murder the native Irish. Roll of Pleas 28, Edward III, contains the following plea:

"Simon Neal complains of William Newlagh, that he, with force and arms, on the Monday after the feast of Saint Margaret at Clondalkin, in the County of Dublin, broke the said Simon's close and his herbage with oxen, calves and sheep, consumed and trampled contrary to the peace, etc., whence he says that he is damaged to the amount of twenty shillings: and therefore, etc.

"And the aforesaid William comes now and says that the above named Simon is an 'Irishman' and not of the five bloods; and asks judgment if he be held to answer him.

"And the aforesaid Simon says that he is one of the five bloods, to wit, of the O'Neales of Ulster, who by the concession of the progenitors of our lord the King, ought to enjoy and use the liberties of Eng. land and be deemed as freeman," and this he offers to verify, etc.

And the aforesaid William says that Simon is an Irishman and not of the O'Neales of Ulster and not one of the five bloods; whereupon issue is joined, etc. Wherefore, let a jury, etc.

"Which jurors upon their oath say that the aforesaid Simon is of the O'Neales of Uslter, and is of the five bloods, which by the concession of the progenitors of our lord the King ought to enjoy and use the liberties of England, and be deemed as freemen, and they assess the damages at tenpence. Therefore, it is

considered that the aforesaid Simon should recover against the aforesaid William the damages aforesaid, and that the aforesaid William should be com mitted to jail until, etc.

The plea issue, joinder and rejoinders set forth above offer a fertile field of research to the legal an tiquary. The legal antiquarian, after reading the

above, can readily detect the origin of the old Irish phrase, "the cold hand of the stranger."

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The Scotch Juror.

We

to overcome this wretched popular prejudice. doubt if even the most advanced member of the sect, upon unexpectedly stepping on a tack-not having on the delusion of shoes-could escape a momentary thrill of error. Of course, a good stiff bit of thought afterwards could overcome the erroneous impression, but the pain would have been suffered. As a tortfeasor is liable for all the consequences of his unlawful act, he should be liable for all the extra exertion which he has compelled the lady to undergo,

case.

But the most important difference between an English and a Scottish jury is this: An English jury

when returning their verdict must be unanimous, and if they fail to agree after a certain length of time they are dismissed and the whole proceedings are begun again de novo before a fresh jury. This is a most expensive mode of administering justice.

In civil cases, in order to avoid this result, the litigants sometimes agree to accept the verdict of a majority. In Scotland the jury can always give a verdict by a majority, in civil cases, after the lapse of three hours.-Chambers' Journal.

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Suffering of a Christian Scientist.

66

It was certainly a judgment ad hominem, or, rather, ad feminam, which the Texas Court of Civil Appeals delivered recently in a suit against a railroad for the unlawful expulsion of a female passenger (Fort Worth R. v. Travis, 99 S. W. Rep. 1141). The lady claimed damages for physical and mental suffering, and the defendant sought to show that the plaintiff was a Christian Scientist, and therefore above suffering. The judge excluded the evidence and the plaintiff had a verdict. The Appellate Court held the exclusion to be error; that the plaintiff's belief should have been submitted to the jury. “If," said the court, she had such control of her feelings, or thought she had, as to render her insensible to pain when she willed to be, we see no reason why that circumstance should not have been considered by the jury in determining the extent of her suffering and the compensation to be made on account of it." But, after all, wasn't logic with the lady rather than with the court's law? Christian Scientists, so far as we can understand their doctrines, profess to believe that all physical pain is due to "error," which error is the preposterous belief transmitted through numberless generations of mentally weakened ancestors that there is such a thing as matter, and that that matter can have any influence on the entity mind. Now, evidently it takes good hard thought, and plenty of it, even from the point of view of a Christian Scientist,

to measure this is the pain she would have suffered but for her efforts. For we submit that the victim's duty to take measures to lessen her sufferings can

not apply to an act of mere thought. In so far as her sufferings were merely mental and caused by the acts toward her of other minds, do Christian Scientists deny that one mind can inflict pain on another? Lastly, the plaintiff in this case may have been an aspirant toward the heights of Christian Science, but she may not have attained the requisite proficiency to bar pain, and her own testimony or other proof that she actually suffered would not in any way be contradicted by her professed creed. We admit that yielding to the delusion so far as to bring suit will probably make the further toils of her ascent more difficult. But that is her business and not the court's.-Law Notes.

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CORRESPONDENCE.

The Kansas v. Colorado Case.

To the Editor of the Albany Law Journal:

Sir. On the 13th of May the United States Supreme Court decided the very important original suit entitled State of Kansas v. State of Colorado et al., with the United States as intervenor.

I have read with great care the record, the briefs of all parties, and the opinion of the court. The result, as to relief between the two States as to their contention over the diversion of the waters of the Arkansas river, appears to be equitable and reasonable. But the denial of relief or countenance to the intervenor, based upon the assertion that the written "Constitution" of 1787 "made" this nation, and that the national government has no "inherent rights," no express or implied power to irrigate, and no powers of any kind except those expressed" in that instrument and those drawn from clear implications based on express grants, involves doctrines as narrow and as harmful as were nullification and secession, and the other strained theories of extreme statesrightism.

It is a harking back to the "strictest construction" of the letter; a declaration that the United States has