and Oriental Steamboat Company, 6 Com. B. Rep. 782; S. C., 18 Law J. Rep. (N. S.) C. P. 85, of the case of Sharp v. Grey, 9 Bing. 457; S. C., 2 Mo. & S. 620; 2 Law J. Rep. (N. S.) C. P. 45, was only an observation made during an argument, when it was cited as incidentally bearing on the question then before the court, and cannot be relied on as authority.

On the other hand, there is not only the plain distinction between the liabilities of the carriers of goods, and of passengers, constantly referred to by text writers and judges as well-known and, settled law, but numerous cases have been decided on grounds entirely at variance with the supposition that there existed contemporaneously with them the liability by way of warranty. In Aston v. Heaven, 2 Esp. 513, which was the case of injury to a passenger, EYRE, C. J., after carefully pointing out the law as to the liability of carriers of goods to make good all losses except those happening from the act of God or the king's enemies, and the reasons for it, says: "I am of opinion that the cases of losses of goods by carriers and the present are totally unlike." Again: "There is no such rule in the case of the carriage of persons; this action stands on the ground of negligence alone." In Christie v. Griggs, 2 Campb. 79, Sir James Mansfield says: "There was a difference between a contract to carry goods and a contract to carry passengers. For the goods the carrier was liable at all events, but he did not warrant the safety of the passengers. His undertaking as to them went no further than this, that, as far as human care and foresight could go, he would provide for their safe conveyance." In Crofts v. Waterhouse, 3 Bing. 319; S. C., 4 Law J. Rep. C. P. 75, the observations attributed to BEST, C. J., clearly show that he did not think there was any warranty on the part of carriers of passengers, and PARK, J., in the same case, says: "A carrier of goods is liable at all events; a carrier of passengers is only liable for negligence." But, besides the observations of individual judges to show what has hitherto been understood to be the law, there is the long series of important cases involving costly and protracted trials, in which, by common consent, the liability of carriers of passengers has been based upon the duty to take due care, and not upon a warranty. In Grote v. The Chester and Holyhead Railway Company, 2 Exch. Rep. 255, where the accident arose from the breaking down of one of the bridges of the railway, the case turned on what would or would not be negligence for which the company were answerable. Parke, B., says: "It seems to me the company would still be liable for the accident, unless he (the engineer) also used due and reasonable care, and employed proper materials in the work." There is no trace in the report that it ever occurred to the court to suppose there was any warranty of the safety of the bridge.

In a case tried before ERLE, C. J., Ford v. The London and Southwestern Railway Company, 2 Fost. & F. 730, the plaintiff was injured by the tender of the train being thrown off the line, and one of the causes was alleged to be the defective tire of one of the wheels of the tender; ERLE, C. J., in his direction, told the jury, "The action is grounded on negligence. Negligence is not to be defined, because it involves some inquiry as to the degree of care required, and that is the degree which the jury think is reasonably to be required from the parties, considering all the circumstances. The railway company is bound to take reasonable care to use the best precautions in known practical use, for securing the safety of their passengers." There the defect was in the tire of a wheel of the tender of the train by which the plaintiff traveled. And no suggestion that a warranty of its soundness existed was made throughout the case. But a case still more directly bearing upon the present point was tried before COCKBURN, C. J. There the accident happened in consequence of the breaking of the tire of the near wheel of the engine. The tire broke from a latent flaw in the welding. The trial lasted six days, and the questions mainly were, whether the flaw was not visible, and whether by the exercise of care it might not have been detected. The

lord chief justice commences a full direction to the jury by saying, "The question is, whether the breaking of the tire resulted from any negligence in the defendants or their servants, for which they are responsible." The latent defect in the tire was admitted to be the cause of the accident; but the jury having found, in answer to specific questions, that there was no evidence that the tire was negligently welded, and that the defect had not become visible, and having in other respects negatived negligence, the verdict was entered for the defendants. The facts of that case appear to be exactly like the present, except that in this case the defective tire was in the wheel of the carriage, and there in the wheel of the engine. But, for the reasons already given, it can never be that a warranty can exist as to the carriage but not as to the engine drawing it. Thus, then, it is plain that a trial of six days took place on issues which were utterly immaterial if a warranty ought to have been implied; and there the learned chief justice and the parties themselves seem to have been utterly unconscious of the contract which was really existing, if the plaintiff in this case is right, for the warranty, as an obligation implied by law, must have existed at the time of these trials if it exists now; and surely it is strong to show that no such rule does form part of the common law that it was not then recognized and declared. The learned counsel for the plaintiff insisted that a carrier by sea is bound to have his ship seaworthy. Undoubtedly the carrier of goods by sea, like the carrier of goods by land, is bound to carry safely, and is responsible for all losses, however caused, whether by the unseaworthiness of the ship or otherwise, and it does not appear to be material to inquire, when he is subject to this large obligation, whether he is subject also to a less one. In the case of Lyon v. Mills, 5 East, 428, it was, no doubt, stated by the court, that the carrier of goods is bound to have a seaworthy ship, but this only as part of his general liability. It is well to observe that Holroyd, who argued for the plaintiff, and Gaselee, for the defendant, both state the liability of the carrier in all its breadth, viz., a liability for all losses however happening, except by the act of God or the king's enemies. This case, therefore, falls within the class of decisions relating to the liability of the carriers of goods. No case has been found where an absolute warranty of the seaworthiness of the ship in the case of passengers has arisen, and it affords a strong ground for presuming that no such liability exists, that in this maritime nation no passenger has ever founded an action upon it. The case of Burns v. The Cork and Bandon Railway Company, 13 Irish Com. Law Rep. 546, in the Irish court of common pleas, certainly does not support the plaintiff's view of the law. The court there says the averments in the defendants' plea are all consistent with gross and culpable negligence, and on that ground gives judgment for the plaintiff. The judgment plainly shows that the court does not mean to declare that there is an absolute undertaking that the vehicle shall be free from defects. The language is, "free from defects as far as human care and foresight can provide, and perfectly roadworthy." The court refers with approbation to the language of Sir James Mansfield and ALDERSON, J., which helps to explain that it was disposed to adopt the views of those learned judges, and to place the liability, not on a warranty, but on the obligation to exercise care and foresight.

It now remains to consider the American decisions on the subject. They have not been uniform. The judgment of Mr. Justice HUBBARD in Ingalls v. Bills, 9 Metc. Rep. 15, cited at length by my Brother Mellor in his judgment below, is opposed to the notion of a warranty. Decisions, however, were cited before us by Mr. MANISTY from the courts of the state of New York, having a contrary tendency, to show us that, in that state, the law had been declared in favor of annexing a warranty to the contract. The most important of these decisions is Alden v. The

New York Central Railway Company, 12 Smith, 102, in the court of appeals of the state of New York. That was the case of an accident caused by a defect in an axle-tree; the reasons given by GoULD, J., for the decision are not satisfactory to our minds. The learned judge seems to assume that there was no negligence shown on the part of the company. He cites the case of Sharp v. Grey, 9 Bing. 457; 8. C., 2 Mo. & S. 620; 2 Law J. Rep. (N. S.) C. P. 45, in the court of common pleas here, and he interprets that case to determine that the carrier warrants the roadworthiness of his coach. But if the view of the case of Sharp v. Grey, 9 Bing. 457; S. C., 2 Mo. & S. 620; 2 Law J. Rep. (N. S.) C. P. 45, taken in the early part of this judgment, is correct, the learned judge gave too great weight to it. He then, after having given the rule as he supposed it to be laid down in Sharp v. Grey, 9 Bing. 457; S. C., 2 Mo. & S. 620; 2 Law J. Rep. (N. S.) C. P. 45, observes: "And though this may seem a hard rule, it is probably the best that can be laid down, since it is plain and easy of application, and, when once established, is distinct notice to all parties of their duties and liabilities." With deference to the learned judge, these reasons founded on the convenience of the arrangement are scarcely sufficient to warrant the introduction of onerous obligations into the contracts of parties; and the terms in which the judgment is given rather lead to the conclusion that the learned judge was conscious that he was annexing to the contract of the carrier of passengers what had not hitherto been understood to form part of it. The English courts are desirous to treat the American decisions with great respect, but, as their authority here must mainly depend on the reasons on which they are founded, we have felt bound to examine the reasons on which this decision was based, with the result which has been already stated. Warranties implied by law are for the most part founded on the presumed intention of the parties, and ought certainly to be founded on reason, and with a just regard to the interests of the party who is supposed to give the warranty, as well as of the party to whom it is supposed to be given. We have already gone fully into the reasons for holding that in our opinion the warranty contended for, in this case, is not so founded.

On the other hand, it seems to be perfectly reasonable and just to hold that the obligation well known to the law, and which, because of its reasonableness and accordance with what men perceive to be fair and right, has been found applicable to an infinite variety of cases in the business of life, viz., the obligation to take due care, should be attached to this contract. We do not attempt to define, nor is it necessary to do so, all the liabilities which the obligation to take due care imposes on the carriers of passengers. Nor is it necessary, inasmuch as the case negatives any fault on the part of the manufacturers, to determine to what extent and under what circumstances they may be liable for the want of care on the part of those they employ to construct works, or to make or furnish the carriages and other things they use. See on this point Grote v. The Chester and Holyhead Railway Company, 2 Exch. Rep. 255. "Due care," however, undoubtedly means, having reference to the nature of the contract to carry, a high degree of care, and casts on carriers the duty of exercising all vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order. But the duty to take due care, however widely construed, or however rigorously enforced, will not, as the present action seeks to do, subject the defendants to the plain injustice of being compelled by the law to make reparation for a disaster arising from a latent defect in the machinery they are obliged to use, which no human skill or care could either have prevented or detected. In the result we come to the conclusion that the case of the plaintiff, so far as it relies on authority, fails in precedent; and, so far as it rests on principle, fails In reason. Consequently, the judgment of the court of queen's bench in favor of the defendants will be affirmed. Judgment affirmed.

CHANGES IN THE ENGLISH JUDICIAL SYSTEM. The following abstract of the remarks of Lord Chancellor Hatherley, in the house of lords, indicates something of the magnitude and importance of the reforms that are about to be wrought in the English judicial system:

The lord chancellor said that, in rising to move the first reading of the Judges' Jurisdiction bill, he could state its object in a very few words. Its object is simply to enable any judge of any one of the superior courts of Westminster to sit, on request of the chief justice or chief baron, in any other court, for every purpose, and with the same jurisdiction and powers, as if he was a judge of the court to which he was invited. It also enables the judges of any court to sit in banco in two divisions, if that shall be found convenient, and gives powers for two courts to sit together in London and at Westminster at nisi prius. The cause which had led him to introduce the bill was that, while the court of queen's bench has, since the death of Mr. Justice Hayes, been overburdened with business, there are more judges than are required in the other commonlaw courts. For the same reason, it is not thought necessary to fill up the vacancy in the court of queen's bench; because seventeen judges, if their services can be made available in every court, are quite adequate to the transaction of the common-law business of the country. It had in like manner not been considered right to fill up the vacant lord justiceship in chancery, because there are only thirteen appeals waiting for hearing, and of these the three oldest only date from December last, while the remainder were set down in January. His lordship then said that he now proposes to call the attention of the house to the measures which the government proposed to introduce in order to carry out the recommendations of the judicature commission. This commission took its rise mainly on the conviction which has been entertained for some time, that we have suffered severely, both in our judicature and our jurisprudence, from the total separation of courts of law and equity. No such separation existed in Rome in the best days of its jurisprudence, nor did such a state of things prevail in Scotland, France or in any other continental system. After tracing the steps by which the separate jurisdictions of the common law courts and the courts of equity had grown up, his lordship said that the result is that there are two species of right co-existing constantly in the same individual. By virtue of one of those rights, he may be entitled to a remedy at common law; while, on the other hand, his opponent may be able, by applying to a court of equity, not only to restrain him from proceeding in the court of common law, but actually to mulet him in costs for proceeding before a tribunal where he must have succeeded had he been allowed to go on. That never was and never could be right. It is clear that a man should be able to have the whole of his cause determined, and complete right done by one court, whatever that might be. And that this was so was seen clearly so long ago as the time of Cromwell, by Mr. Shepherd, an eminent lawyer of that day, who recommended in a book called "England's Balm," that causes should no longer be sent from law to equity, or vice versa, but that which ever court a cause first came before should have power to dispose finally of every question that arose in its course. The reforms which he recommended had been partially carried out of late years by the acts which gave the courts of law power to grant injunctions or to entertain equitable pleas, which enabled the courts of equity to decide points of law, and to try causes by jury. Still much remained to be done in order to the complete fusion of law and equity, and it was, as he had already said, a conviction that it is desirable to carry the process much further than has yet been done, which led to the appointment of the judicature commission.

That commission was appointed in September, 1867, and reported in March, 1869. It had submitted to its investigations the courts of common law and equity, the court of admiralty, probate court, and the court of divorce.

With the exception of the judge of the court of admiralty, all the commissioners came unanimously to the conclusion that the whole of the courts should be consolidated into one court of judicature; that that court should have power to divide itself into separate divisions, not to continue the separation of the jurisdiction of common law and equity, but for the purpose of handing over to each division the business most appropriate to it. This division of business would be subject to this reservation: That any judge may sit in any division, and, from time to time, if it be desirable, a cause may be transferred bodily from one division to another. It was also recommended that pleadings should be rendered as simple as possible, and that some alterations that he could not then advert to should be made in the mode of taking evidence. He then came to the court of appeal. It is thought desirable that the court of appeal should consist mainly of judges devoted to this work, and it was also considered expedient that the master of the rolls should cease to be a judge of first instances, and should become a judge of appeal. In order to supply the deficiency in the judges of first instance in the court of chancery created by the removal of the master of the rolls to the appeal court, the chief judge in bankruptcy would be added to that division of the courts. As to the common-law courts, each division would consist of five judges, while another division would consist of the two remaining judges and the judges of the courts of probate and of admiralty. The court of appeal would be composed of the lord chancellor, the master of the rolls, of four permanent judges, and of three judges to be selected by her majesty, from time to time, from the courts of first instance. The court of exchequer chamber, which has not been found to work well, would be abolished. Another provision of the bill would be the abolition of the home circuit, the business of which would in future be transacted in London. He did not intend at present to legislate on the subject, but he thought it would be expedient to take measures to facilitate the dispatch of the appeal business of the house. With that view, he would suggest that that house should appoint a judicial committee, which should have the power to summon to their aid members of the judicial committee of the privy council. This committee would have power to sit during the recess, reporting its decisions, as recommendations, to the house, by whom they would be formally authorized.

BOOK NOTICES.

The American Law Review.

The April number of the deep blue Boston quarterly is hardly up to its usually excellent standard. The leading articles are: "Contributory Negligence on the part of an Infant;" "Doubtful Points under the Bankrupt Law, I," and "Rights of a Landlord to Gain Possession by Force." The balance of the number is taken up with the opinion of Judge Drummond, of the United States circuit court of the southern district of Illinois, on the proprietary right of an author over literary productions before publication; digests of English, American and bankruptcy decisions; book notices, list of law books and summary of events. The Review is edited with decided ability, and is superior in most respects to the English legal quarterly.

The American Law Register.

The April number of this law monthly contains a wellwritten article by Edmund H. Bennett, of Boston, on "The Burden of Proof in cases of Insanity," in which the learned writer attempts to show that in criminal prosecutions the burden of proving sanity is on the prosecution. Legal Gazete: Philadelphia. Legal Intelligencer: Philadelphia. The Daily Law Transcript: Baltimore. The Pittsburgh Legal Journal.

These are all weekly journals, devoted mainly to the reporting in extenso of opinions of local interest. The last

named, however, devotes a portion of its columns to general legal intelligence, and is edited with skill and judgment.

The Bankrupt Register: New York.

The Register is devoted exclusively to reporting decisions in bankruptcy, and displays much enterprise in its peculiar field. Those engaged in the bankruptcy practice will find it of great value.

LEGAL NEWS.

Hon. A. O. P. Nicholson is a candidate for one of the supreme judgeships in Tennessee.

A twenty thousand dollar libel suit has been instituted against the Cincinnati Inquirer.

The health of Hon. Samuel Shellabarger, of Ohio, has improved so much that he is now able to resume the practice of the law.

On motion of Hon. Caleb Cushing, Ex-Governor Wise, of Virginia, was recently admitted to practice in the United States supreme court.

A farmer in Wisconsin has applied to one of the courts of that state for a divorce from his wife on the ground that she can't split half the amount of wood she boasted she could before their marriage.

The Kentucky legislature passed a special act for the benefit of a young man twenty years of age, that he might be permitted to practice as an attorney and counselor at law.

A young woman in Montreal, who was accused of having caused the death of her brother-in-law by sitting upon him when he was very low, has been acquitted.

A Rochester police justice, instead of sending to jail a man who was brought before him for begging, procured employment for him, and was rewarded by the heartfelt thanks of the man, and his promise to give a good report of himself.

Hon. George Bartlett, a leading Broome county lawyer, died at Binghamton recently, aged about fifty-two years. He was a descendant of Josiah Bartlett, of New Hampshire, one of the signers of the Declaration of Independence.

The jury in the Richardson case consists of two dry goods dealers, two "merchants," one lace dealer, one produce dealer, one grocer, one ship chandler, one wholesale liquor dealer, one broker, one insurance agent, and one theatrical agent.

The Auburn News having published a twelve-line paragraph complaining that the county jail was filthy and in a most wretched condition, the sheriff, Sidney Mead, brought an action for libel against it. The jury, after a two days' trial, brought in a verdict that there was no cause of action.

In denying a motion for a new trial for a condemned murderer, Judge PRIMM, of the Missouri supreme court, spoke severely of "that sickly, maudlin sentimentality which of late has become fashionable, and which would grant an immunity to every gigantic criminal on the assumed ground of insanity."

Associate Justice Bradley has written to a friend in Mobile, thanking him for his congratulations upon his appointment, and saying: "While I have always been intensely national, I have, nevertheless, felt a kindly regard for the southern people, deeply realizing the difficulties of their situation. If there is any one wish that I cherish more than another, it is to see the substantial classes of the south once more firmly knit in attachment to the old government and the old flag. I hope the time may soon come when the president and congress shall deem it wise and prudent to extend a general amnesty. I have some idea of making a little tour through the states of the circuit as soon as the court shall adjourn."

THE BROOKLYN LAWYERESS.

Miss Barkalo is a native of Brooklyn, N. Y., and is a woman of more than ordinary ability. Two years ago, after having read Blackstone and other elementary law books, she made application for admission as a student at Columbia College, New York, but was peremptorily refused. Nothing_daunted, however, she came out west and settled in St. Louis, where she was admitted, without difficulty, to the St. Louis Law School. For eighteen months she has been assiduously devoting her energies to the study of science, and her fellow students all agree in declaring her, by far, the brightest member of the class. That there is no question of her ability was clearly shown yesterday at the examination, where she promptly and correctly answered every question propounded to her. Judge Knight, although overflowing with gallantry, gave the lady no quarter. The most abstruse and erudite questions were propounded to the applicant, but not once did the wise judge catch the fair student tripping. Miss Barkalo is about 22 years of age, of a buxom figure, amiable and really intelligent face, and a large and expressive eye. (This is a figure of speech-she has two.) She is now a member of the St. Louis bar, and considerable interest is manifested to witness her maiden effort.-St. Louis Times.

By an oversight on our part, we omitted to give proper credit in last week's LAW JOURNAL to the writers of three articles. The article on "Legal Reform" was written by F. W. Hackett, Esq., of the Boston bar, a gentleman to whom we have frequently been under obligations for valuable and readable contributions. That on "John C. Spencer" was written by L. B. Proctor, Esq., of the Dansville, N. Y., bar, who is at present engaged in preparing a work on "The Bench and Bar;" and the article on "A Ministry of Justice" was from the Pall-Mall Gazette.

TERMS OF THE SUPREME COURT FOR APRIL. 4th Monday, Circuit and Oyer and Terminer, Suffolk, Gilbert.

4th Monday, Circuit and Oyer and Terminer, Johnstown, Bockes.

4th Monday, Circuit and Oyer and Terminer, Livingston, Johnson.

4th Monday, Circuit and Oyer and Terminer, Wayne, Dwight.

4th Tuesday, Circuit and Oyer and Terminer, Lewis, Morgan.

Last Monday, Special Term, Ontario, J. C. Smith.
Last Tuesday, Special Term, Otsego, Murray.
Last Tuesday, Special Term, Albany, Hogeboom.

NEW YORK STATUTES AT LARGE.*
CHAP. 163.

AN ACT to amend the act entitled "An act to authorize the business of Banking," passed April eighteen, eighteen hundred and thirty-eight.

PASSED April 9, 1870. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Every Banking Association organized and doing business under and by virtue of the act entitled "An act to authorize the business of Banking," passed April eighteen, eighteen hundred and thirty-eight, and the various acts supplementary thereto and amendatory thereof, is hereby authorized to take, receive, reserve, and charge on every loan or discount made, or upon any note, bill of exchange, or other evidences of debt, interest at the rate of seven per cent per annum, and such interest may be taken in advance, reckoning the days for which the note, bill, or other evidence of debt, has to run. The knowingly taking, receiving, reserving or charging a rate

* These laws have been carefully compared with the originals, and may be relied upon as accurate. We have not thought it necessary to take up space by attaching to each the certificate of the Secretary of State which is attached to the copy from which we print. ÉD. L. J.

of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon, and in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back twice the amount of the interest thus paid from the association taking or receiving the same; provided, that such action is commenced within two years from the time the said excess of interest is taken. But the purchase, discount, or sale of a bona fide bill of exchange, note, or other evidence of debt, payable at another place than the place of such purchase, discount or sale, at not more than the current rate of exchange for sight drafts, or a reasonable charge for collecting the same, in addition to the interest, shall not be considered as taking or receiving a greater rate of interest than seven per cent per annum.

22. It is hereby declared that the true intent and meaning of this act is to place the banking associations organized and doing business as aforesaid on an equality, in the particulars in this act referred to, with the national banks organized under the act of congress entitled "An act to provide a national currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof," approved June third, eighteen hundred and sixty-four. And all acts and parts of acts inconsistent with the provisions hereof are hereby repealed. §3. This act shall take effect immediately.

CHAP. 180.

AN ACT relative to the care and education of deaf mutes.

PASSED April 12, 1870; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Sections one and two of an act entitled "An act to provide for the care and education of indigent deaf mutes under the age of twelve years," passed April twenty-fifth, eighteen hundred and sixty-three, are severally hereby amended by adding to and inserting therein after the words "New York institution for the deaf and dumb," wherever the same occur in said sections respectively, the words following, viz.: "or in the institution for the improved instruction of deaf mutes."

2. All provisions of the law now existing fixing the expense of the board, tuition and clothing of children under twelve years placed in the New York institution for the instruction of the deaf and dumb, shall apply to children who may from time to time be placed in the said institution for the improved instruction of deaf mutes, in the same manner and with the like effect as if said last mentioned institution had also originally been named in the acts fixing such compensation, and as if said acts had provided for the payment thereof to the institution last mentioned, and the bills therefor properly authenticated by the principal or one of the officers of the said last mentioned institution shall be paid to said institution by the counties respectively from which such children were severally received, and the county treasurer or chamberlain, as the case may be, is hereby directed to pay the same on presentation, so that the amount thereof may be borne by the proper county.

23. Sections nine and ten of title one of an act entitled "An act to revise and consolidate the general acts relating to public instruction," passed May second, eighteen hundred and sixty-four, are hereby amended so that the same shall extend and apply to the said "institution for the improved instruction of deaf mutes" in the like manner and with the like effect as if said last mentioned institution, as well as the others therein mentioned, had originally been named in the said sections respectively.

4. This act shall take effect immediately.