THE ENGLISH LAW OF NEGLIGENCE IN difference which appears in the judgments below, increases my confidence in thinking that the question was one for the jury and not for the judge, and the fact that cases of this class so constantly divide the impossible to reconcile, seems to me an additional The tendency of recent adjudication is unquestionably in favor of enlarging the province of the jury, in cases of negligence in railway companies. A remark-judges, and often lead to decisions which it is almost able case arising under the law of negligence as applied to railways, is that of Bridges v. The North London Railway Company, 30 L. T. N. S. 844, finally decided in June, 1874, in the British House of Lords. This case was begun in 1869, and was tried before Blackburn, J., who directed a nonsuit on the following facts: Deceased was a passenger by defendants' railway from L. to H. He was a season ticket holder and traveled to and fro every day. He was very short-sighted. On approaching H. station from L. the railway passes through a tunnel. About twelve feet of the platform is within the tunnel, then there is a slope of ten feet from the platform to the rails, and beyond this a heap of hard rubbish, extending some way into the tunnel. The train stopped before it reached the station, the last two cars being still in the tunnel, and deceased being in the last car which was opposite the heap of rubbish. A passenger in the next car heard the name of the station called out as the train stopped; he got out and then heard a groan in the tunnel, and on going back found the deceased lying on the heap with his legs between the wheels of the car, but they had not touched him. The passenger also heard "keep your seats" called out, and the train moved forward to the station. It was after dark and the tunnel was full of steam. The deceased died from the injuries received. The Court of Queen's Bench affirmed the decision of Justice Blackburn, and held that there was no evidence of negligence in the defendants, which could properly be submitted to the jury. The case came before the Exchequer Chamber and the judgment of the Queen's Bench was affirmed (L. R., 6 Q. B. 377), four judges being for affirmance and three for reversal. When the case came to the House of Lords the judges were summoned and Kelley, C. B., and Martin and Pollock, BB., Keating, Brett and Denman, JJ., attended. The judges having taken time to consider, three of them delivered elaborate opinions in which the others concurred, holding that the question of negligence should have been submitted to the jury. In this view the House of Lords concurred, Lord Chancellor Cairns and Lord Hatherly expressing the judgment of the House. From the opinion of Justice Denman we make the following extract as exhibiting, in a true light, the whole subject of negligence in railway companies. The learned judge said: "On the whole, I think this case was one which ought to have been left to the jury; and though, in most cases, I should feel that the difference which exists between my own opinion and that of the judges who constituted the majority of the court below, was a strong ground for causing me to doubt the correctness of my own view, yet I must own that in this case the great * us that the bringing up of a train to a final stand-still, for the purpose of the passenger's alighting, amounts to an invitation to alight, at all events, after such a time has elapsed that the passenger may reasonably infer that it is intended he should get out if he proposes to alight at the particular station." Now, we cannot help thinking that if Cockle v. Southeastern Railway Co. had gone to the House of Lords, they would have dissented from the language of Lord Cockburn and have held that the question stated by him was one for the jury. There is also a recent case decided in the Exchequer Chamber, which bears a close analogy to that of Bridges v. North London Railway Co. We refer to Ellis v. Great Western Railway Company, 30 L. T. N. S. 874, which was decided in the Exchequer Chamber at about the same date that Bridges v. North London Railway Company was decided in the House of Lords. Ellis v. Great Western Railway Company was an action for injuries to the plaintiff by defendants' train at a level crossing. The plaintiff, having occasion to cross the track of defendants upon a dark Sunday evening, waited until one train had passed, and was knocked down in the act of crossing by an political preferment. Judges, however, are but men, and as long as the people will bring them forward as candidates for high political offices, there are very few that will have the self-denial to resist the temptation. Besides it may not unfrequently happen that judges from the just and impartial habits of thought, and from the integrity and purity of private life which the judicial office has a tendency to develop, as well as from the absence of any strangely expressed political opinions, become the most available candidates for political offices; and it is not to be expected that other train passing in the opposite direction immediately afterward. The carriage gates of the crossing were shut, the plaintiff passing through a swing gate for foot passengers; the railway was straight for a long distance on either side of the crossing, at which a servant of defendants attended on week days, but not on Sundays. There was no light at the crossing, and plaintiff did not hear any whistle from the train. Grove, J., ruled that this was evidence of negligence to go to the jury. The plaintiff had a verdict. The Exchequer Chamber held on appeal that the facts did not amount to evidence of negligence, and that ques-political parties will, when they stand in extreme tion should not have been submitted to the jury. And here again we find a divided court, two of the judges dissenting from the conclusions of the Chamber. We cannot think that the judgment of the Exchequer Chamber was right, especially in the light of the decision of the House of Lords in Bridges v. North London Railway Company. And the very division of the judges in the court of Exchequer Chamber is an argument to show that the question of negligence was one for the jury. The position which was taken by the House of Lords in Bridges v. North London Railway Company amounts to this: That where there is a reasonable doubt as to whether the facts show a case of negligence, then the question is for the jury. And in nine cases out of ten, where injuries result from the management of trains, the question of negligence is for the jury. And a good rule for the appellate courts to adopt in such cases would be, that where there is a division of the judges on the question of negligence, the division is conclusive that the case is a proper one for the jury. CURRENT TOPICS. The September terms of the various courts are not likely to accomplish much. It is too soon after " vacation" for the lawyers to have prepared their cases for trial or argument. And although there is always a great deal of postponing cases, the September delays are invariable. Yet the calendars are as heavy this month as at any time. For the accommodation of all parties, it would not be an unwise plan to make September a vacation month, like July and August. There would be more to do in the remaining nine months, but those concerned would be better prepared to do the work allotted. Under the head of "Politics and the Bench," the Central Law Journal refers to the current discussion in the non-professional papers as to the propriety of judges accepting nominations to purely political offices. In the course of its remarks our able contemporary says: "The repose of society requires that the popular judgment should rest with confidence in the impartiality of the bench, and this cannot be if the bench comes to be looked upon as a stepping-stone to need of such a candidate, stop to consider the pro- The New York Tribune, in commenting upon the failure of the Brussels Congress to produce any definite results, makes the following observations on International Codification: 'However, while we do not seriously regret the failure of this particular undertaking, we cannot but regard with satisfaction the circumstance that the Congress was convened and the necessity for an International Code recognized by some of the strongest governments of Europe. The provisions for regulating intercourse among nations frequently refer to two or three nations alone; frequently, when relating to the nations of civilization in common, they are construed by publicists — and especially by governments of particular countriesto suit national exigencies. So far as the former class of rules are concerned, they must probably remain as they now stand. But there are very many, possibly a majority of the rules of International Law proper, which can be formed into one comprehensive code. An undertaking to this end requires in its beginning the co-operation of the most prominent men of training in this department of science throughout the world. The project is not one which can be executed with facility. But, having once been devised and digested in the manner we mention, the code, which might then be proposed to a congress of delegates from all governments, would be free from the suspicion of promoting the interested schemes of particular nations, and have so much the greater prospect of being adopted in practice." These are sound views and indicate that public sentiment is becoming awakened to the demands of International intercourse. The following remarks which we quote from the London Law Times, reveal a state of "professional etiquette" in England which is quite incomprehensible to the profession in this country, if not positively ridiculous: "We have been appealed to by a local law society to publish the name of a barrister who, it is alleged, has been guilty of a breach of professional etiquette in selling and conveying his own land without the intervention of a solicitor on either side. We refrained from taking this step when we published the proceedings of the society, because we doubted very much whether it would be justifiable, having regard to the alleged condition of a portion of the property in question. We now notice the request of the society because we are asked at the same time to express our opinion of the conduct of the barrister, and the opinion which we have formed is another reason for our observing silence as to the individuality of the alleged offender. All that can be said on such a subject is, that it would be far better if barristers would observe the strictest rules of their order, and not only refuse to do the professional work of third persons without the intervention of a solicitor, but also seek such intervention in all legal affairs of their own. We can easily imagine a condition of things in which a barrister might find himself in a very awkward position by reason of having drafted all his own conveyances. Purchasers, and more particularly purchasers of small lots, are apt to be taken off their guard by a vendor getting rid of all expense and presenting ready-made deeds for signature, and if any contest should subsequently arise, the transaction would be viewed with a strong desire to help the non-professional person, and the conduct of the skilled vendor would be severely reflected upon. But if the vendor is willing to run this risk, we cannot see that there is any breach of professional etiquette. Because a land-owner happens to be a barrister, is he to be debarred from selling cr leasing his property in his own way, and at no cost to himself or to the person dealing with him? The answer given to the law society by the barrister we consider conclusive. He thinks it advisable to get rid of the costs of transferring land it is a boon to the vendees. All parties consent; is the arrangement to he prohibited by pro - fessional rules? We think not. The barrister takes the consequences, and he may possibly suffer in the eyes of solicitors generally. That is his business, and the question is not one to be dealt with by the profession." The bar of England will never come up to the demand of the age until it has "fused" the rights of its different branches, and we expect yet to see our valuable contemporary advocating a complete change in the rules of professional etiquette. This is as clearly necessary, as is the change which is going on in the Rules of Procedure and the Constitution of the Courts. NOTES OF CASES. In Huston v. Roosa, 43 Ind. 517, an interesting question was adjudicated in the law of equitable relief from instruments which ought not to be used or enforced. It appeared that plaintiff's name had been forged to a negotiable note, and he brought an action against the indorsee to compel a surrender of the note, or a release from liability thereon. It was held that in such an action the court might render a judgment releasing the plaintiff from all liability and declaring the note void as to him. The usual decree in such cases is, that the instrument be given up and canceled, but it was necessary that the instrument be left in the hands of the indorsee with his rights unimpaired as to his indorser. The case is a peculiar one. In Indianapolis, Peru & Chicago Railway Co. v. Anthony, 43 Ind. 183, it was held that a master is liable for the act of the servant done within the scope of the employment, whether the act is willful or merely negligent. This was an action to recover for the wrongful expulsion of a passenger from the cars of a railway company. And the court took the view that the company was liable, notwithstanding the servants who expelled the passenger acted willfully and maliciously. This case is sustained by Railroad Company v. Rogers, 38 Ind. 116; Ramsden v. Railroad Co., 104 Mass. 117; Howe v. New March, 12 Allen, 49; Railroad Company v. Derby, 14 How. 468. This is the better doctrine and will prevail, although there are some recent cases holding in effect, that the act is not within the "scope of the employment" when it is willful or malicious. See Jackson v. Second Avenue R. R. Co., 47 N. Y. 274; Isaacs v. Third Avenue R. R. Co., id. 122. In re Shaw, a case recently decided by the surrogate of Cortland county, N. Y., is a valuable contribution to the law of wills. The case involves the question of delusion in the mind of the testator, as affecting the validity of the will. It appears from the elaborate opinion of Surrogate A. P. Smith, before whom the contest was carried on, that the testator, who was a bachelor, made a will in 1832, when he was forty-seven years old; also, a will in 1837; also, * * * one in 1854; also, one in 1870, when he was in his eighty-sixth year. In the will of 1870 he bequeathed to Robert T. Shaw, a relative, a large part of his estate, and made him executor. On the back of this will was found a memorandum, without date, stating that he had willed to Robert the largest sum of any of his heirs, because he expected Robert to carry into effect his will. There was a subsequent clause in the memorandum, evidently written at a different time, in the words: "Having satisfactorily discovered that Robert Tenant Shaw has, by lying and other shameless deceits and wrongs, deceived and injured me, I hereby withdraw all trust and confidence in him, and desire that he be excluded from inheriting any part of my property or estate, and desire that his name be erased from every part of this will where it is written." Then follows an attestation clause and subscribing witnesses. In the previous wills he had shown most tender regard toward Robert, who had been much in his family. In 1872 the testator made the will, which, with a codicil written in 1873, is the will in dispute. By that will he entirely disinherited Robert. The evidence failed to show that there were any grounds for the supposition that Robert was a liar or impostor; but there was evidence to show that the testator had been under similar delusions toward other relatives. Among the curiosities which the evidence disclosed is a vision which the testator thought he had, in which his spirit was taken by an angel to the gate of Heaven, and shown the beauties thereof. He desired to enter, but was told that he must return to his old body, and remain until he was one hundred and ten years old. The surrogate arrives at the conclusion that the will and codicil were void for want of testamentary capacity. Among the important cases which are cited are Cotton v. Ulmer, 6 Am. Rep. 703, and Pidcock v. Potter, 8 id. 181, and note. MARSHAL BAZAINE AND THE FRANCO ENGLISH LAW OF EXTRADITION. Considerable interest has been excited by a question recently discussed with respect to the position of M. Bazaine if he should take up his residence in this country. Although all intention of demanding his extradition has been repudiated by the French semiofficial press, the matter is well worthy of notice, the more particularly as some lawyers have thought fit to address the leading journal on the subject. Two main questions have been raised. First, whether the offense for which Bazaine was tried and convicted was an offense for which he could be surrendered to the French government; secondly, whether persons were ever surrendered after conviction, or only before trial. In this country it had become, before the making of any treaties on the subject, the practice never to surrender any offenders against the laws of a foreign state who had taken refuge in this country. It is true that by the principles of international law every govern ment has a right to remove from its territories any person not a subject, either born or naturalized, and hence to give up offenders to a government making a requisition for their surrender. There are instances in which this country has given up offenders, not accused of political crimes, before the existence of any treaties, but of late years the practice has been to refuse their surrender unless required under the provisions of the treaty. Such surrenders, moreover, have been made not as of right but by international comity, and only in the cases of individuals who have committed crimes against what may be called the laws of nature-that is to say, against those laws which all nations consider the foundation of their security and well-being, both public and private. Political offenders have never been surrendered under any pretext, and even where, for the purpose of carrying out a political end, a foreigner has been guilty of offenses which would come within the category of crimes against the ordinary laws, this country has always refused their surrender. At the present time the surrender of offenders to most of the foreign goverments is regulated by treaty or convention. The treaty which practically regulates the mutual extradition of offenders with France was entered into in 1852, and has been confirmed in this country by an Act of Parliament, which regulates the mode in which its provisions shall be enforced. Under the terms of this treaty alone the surrender of offenders against the law of France can take place; and it is to this, therefore, that we must look to see if Bazaine could be surrendered. The first article of that treaty effectually disposes of the second point raised, namely, whether a convicted person can be surrendered. It is there provided that the contracting parties "shall deliver up to each other reciprocally such persons, except native subjects or citizens of the party upon whom the requisition may be made, who, being convicted or accused of any of the crimes hereinafter specified, committed within the jurisdiction of the requiring party, shall be found within the territories of the other." Hence it is plain that if Bazaine were either convicted or accused of any crime specified in the treaty he could be surrendered by the British government. If it were not for the express words of the treaty itself it might be argued that upon the construction of this first article nothing would prevent extradition for offenses other than those specified in the treaty. The treaty, however, goes on to provide (Art. II) that the "surrender shall be made on account of the following crimes, which, however differently denominated in the respective legislatures, are punishable under both with grave penalties;" then follows a long list of offenses. Article VII provides that "no accused or convicted person who may be surrendered shall in any case be proceeded against or punished on account of any political offense committed prior to his being surrendered, nor for any crime or offense not described in the present convention which he may have committed previously to his having been surrendered." Hence only such crimes as are named in the treaty are extradition crimes. Bazaine was tried and convicted for a military offense, which was substantially that of surrendering without sufficient reason a fortress into the hands of the enemy in time of war and whilst he was in command of adequate forces and means for defending the same. No such offense is named in the list of crimes given in the treaty, and, therefore, no surrender could or would be made by the British govern ment. The answer then to the first question discussed is that the offense for which Bazaine was tried and convicted was not such an offense as would, under the treaty, justify his surrender, and if he cannot be surrendered under the treaty he cannot be surrendered at all. But let us consider the question from another point of view, and suppose that no treaty exists. What would then be the answer of our government to a requisition for his surrender? We venture to think a peremptory refusal. The ground for this refusal would be that the offense of which Bazaine was convicted was in its nature a political offense. It is impossible in our limited space to discuss this question in all its bearings, but we can shortly give our reasons for this suggestion. Wherever an offense is committed, which is of a purely military character, and is not in any way against the civil law, we venture to think that such an offense is essentially political; or, at any rate, it is quasi-political, to an extent that would afford a sufficient reason for refusing to surrender the offender. If a soldier shoots his officer he is guilty, not merely of an offense against military discipline, but also of an offense against the laws of nature, and might be surrendered to take his trial for his offense against the latter system of law. But where an officer, through treachery or cowardice, surrenders his post to an enemy, his offense is of a totally different nature. He offends against a code of laws which is in direct conflict with the ordinary laws of nature, and which arises solely out of political combinations. The code of military law which enacts punishment for such offenses has risen up gradually with the formation of standing armies, and standing armies are institutions which exist for the maintenance of the political entity of the States which they uphold. It is true that they are not intended to serve the purposes of any particular party in the State to which they belong, but they are the means of enforcing and upholding the position of the State in relation to other States. An offense against the military code governing a standing army is an offense against something which takes its existence from the policy of the State, and hence the nature of the offense (if of a purely military character) is treason against the State. That such is the character of the offense is evidenced by the severity of the punishment inflicted in time of war. Treason is an act, or it may be the omission of an act, which has for its object to overturn or injure the existing government of a State. Treachery or even neglect of duty on the part of a soldier or officer in time of war, and whilst employed as such, is an act or omission of which the effect is or may be to overturn or injure his government by the defeat of its armies. Surely such an offense is in the nature of treason, and treason of the very worst character, for the person committing such an offense is a person trusted by the very government which he offends against. Of course there may be military offenses of a mixed political and civil character, and it would be the duty of a government to whom a requisition was made for the surrender of a military offender to inquire in all cases whether the offense partook in any way of a political nature. But where the offense is purely military, then it is, we venture to think, essentially political, and in no such case should a surrender take place. Hence our conclusion is that in this country, at least, Bazaine can live without fear of being forcibly restored to his island prison.-Law Times. COURT OF APPEALS ABSTRACT. ACTION TO RECOVER POSSESSION OF PERSONAL PROPERTY. Ownership: estoppel. — This was an action to recover possession of personal property. On the 21st August defendant purchased of one J. a quantity of linseed, J. had bargained with plaintiffs for the linseed, but at the time had not completed a purchase nor had he any indicia of ownership or control over it. On the 24th August plaintiff was induced by fraudulent representations to deliver the seed to J., who delivered it to defendant in fulfillment of his contract of sale. The court charged in substance that if the delivery by plaintiff to J. was absolute and unconditional they were estopped from claiming the property from defendant. Held, error; that plaintiffs were not estopped from asserting title, as defendant did not part with any thing upon the strength of any apparent ownership in J., nor did they do or forbear to do any act in reliance upon such apparent ownership or induced by any act of plaintiffs. To create an estoppel which will prevent an owner from asserting title to his property which a third person has assumed to dispose of without his consent, he must have clothed such person with the apparent title to or authority to dispose of it, and the person claiming the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority. Barnard v. Campbell. Opinion by Allen, J. APPEAL. Nature of the right of appeal: when discretionary.A certiorari was issued by the supreme court herein to review certain summary proceedings to recover possession of land. The general term affirmed the proceeding and a motion was made for leave to appeal to this court, which was denied. Sec. 47 of title 10, chap. 8, part 3 of the Revised Statutes (2 R. S. 516) as amended by sec. 8, chap. 828, Laws of 1868, provides "that the judgment of the supreme court at general term, upon such certiorari shall be final unless an appeal shall be allowed by said court at general term before the end of the term next after that in which the judgment was rendered. Held, that the allowance of an appeal was within the discretion of the general term, and this court cannot interfere with the exercise thereof. The right review in this court in civil cases is not a natural and inherent right which cannot be taken away by legislation, but is created, and the jurisdiction of this court is designated and prescribed by the statute law. People ex rel. Gripler et al. v. Fowler. Opinion by Johnson, J. CONTRACTS WITH THE STATE. 1. Canal improvements: compensation: powers of canal board. This action was brought by the attorney-general in the name of the people against the canal board and certain contractors. The complaint alleged in substance the making of a contract for certain canal improvements at stipulated prices between the State and one of the defendants; that the contract was canceled after a portion of the work was performed and the work done paid for at contract prices, thereafter chapter 740, Laws of 1872, was passed, which directed the canal board to examine as to the cost of the work done, and if the expenditure exceeded the price paid, to allow an amount not exceeding the difference, and for the sum allowed the canal commissioner in charge was directed to issue his draft on the auditor. The |