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The Albany Law Journal.

ALBANY, JULY 3, 1875.

CURRENT TOPICS.

THE formal opening of the new international court

in Egypt, which occurred on Monday at Alexandria, is an event of remarkable significance and importance. The constitution of this tribunal has been briefly described in this journal, and the appointment of the American members has been noticed. It is difficult to over-estimate the value of this inauguration of a court of private international law in a country where large numbers of foreigners of many nationalities meet and mingle for the purposes of travel and of trade. The practical utility of the court will be even surpassed by the impetus which will be afforded the cause of international law reform, and we shall not be surprised to see the example of the Khedive soon followed in Europe and in America. It is a singular comment upon the international legal condition of the world that the first great step,- having a truly international and official character, and having for its object the establishment of a permanent court of international law, composed of members representing the principal civilized nations, should have been taken in Egypt. No potentate deserves higher encomiums from the great publicists and jurists of our time than this enterprising and advanced reformer, who has both the intelligence to conceive improvements and the ability to carry them

out.

VOL. 12.-No. 1.

The brief charge to the jury of Judge Neilson in the Tilton-Beecher case is in marked contrast with the address of Lord Cockburn in the Tichborne case. The address of the former occupied only one hour and a-half, while that of the latter required many days, and fills two ponderous volumes. The vast variety of topics, social, moral, religious, political and legal, which were connected with the Tilton-Beeecher case, gave the counsel on both sides and the judge a splendid opportunity to air their learning, their fancy, their rhetoric and their logic. This opportunity the counsel accepted, but the judge modestly, and, we think, commendably, refrained from any display of any thing but what the bare necessities of the case required. His charge is a model of clearness, precision and force. It seems almost incredible that the case could have been presented to the jury adequately in so few words. But a careful perusal of the charge shows that nothing was left out which was necessary to the complete presentation of the case. The whole address bears marks of the most careful and patient consideration of all the material evidence, and of the most wonderful condensation which our language affords. The spirit which breathes through the address is one of the utmost fairness and impartiality. The counsel both sides expressed themselves satisfied, and this, of itself, is a high testimonial to the freedom from bias which the charge evinces.

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Of the subject-matter of Judge Neilson's charge we need not say much, as it is before the country and has been extensively read. The theory which the judge adopts is one which we could wish were universally followed. He says: "I have persistently, and upon principle, refrained from stating to juries my opinions upon controverted questions of fact." Again he remarks to the jury: "You are the sole judges of the weight of the testimony and of the credibility of the witnesses. A sense of this restrains me from commenting upon the proofs at large, and from indicating to you what my opinions

may be on the questions of fact involved." The judge is thus the mere legal guide of the jury, as he should be. There is another characteristic of this remarkable charge, which shows, in our view, the entirely judicial temperament and habit. There is a complete absence of vindictiveness, of harshness, in the expressions which are used in reference to the character and conduct of the parties and witnesses. The charge is properly devoid of that element which we find so frequently in judicial utterances, the moralizing and sermonizing element, which is good in its place, but which is entirely out of place on the bench. Taken as a whole, Judge Neilson's charge is a model which our nisi prius judges may well imitate, but which they will find difficulty in excelling.

It appears that the libel case of Johnston v. The Athenæum, which we noticed some time since, did not turn out as well for the plaintiffs as was expected. It will be remembered that the London Athenæum reviewed unfavorably one of the maps of the Messrs. T. B. Johnston & Co., and stated that the talent of the McKeith-Johnston family no longer appeared in their maps. The action was tried at Edinburgh, Scotland, where a verdict was rendered for £1,275. Sir Charles Dilke, who is the owner of the Athenæum, proposed at first to pay this sum, but was afterward induced to appeal the case. The Lord Justice Clerk was of opinion that a new trial should be granted, on the ground of excessive damages, and Lord Neaves, we are told, thought the amount was 'outrageous." The court, however, suggested that the parties should agree upon the amount of dam

ages without retrying the case. The court then, by consent, assessed the damages at £100, a considerable reduction, it must be confessed. The plaintiffs were also condemned to pay their own costs of appeal and half of defendant's. The case has, however, illustrated an important point in the law of libel, and has shown that there are pretty well-defined limits to newspaper criticism.

The unsatisfactory condition of toxicological law was shown in the recent case of Prof. Doremus, of New York, who was employed by a coroner to make analyses of the bodies of persons who had died under circumstances indicating poisoning. Prof. Doremus failed to get his bill paid, and brought suit in the Court of Common Pleas against the county. Having been defeated in the court of first instance, he carried his case to the general term, where a decision has been rendered, Judge Larremore delivering the opinion, holding, that while there is no difficulty in regard to the necessity or value of the services rendered, yet there is an insuperable obstacle to the recovery, on the ground of want of authority on the part of the coroner to incur such expense. Under former legislation, such a claim might have been

sustained; but, under the acts of 1868 and 1871, such expense cannot become a corporation liability. Judge Larremore seems to feel the defects in our laws relating to this matter when he says: "Fully recognizing the utility and necessity of chemical analysis, in furtherance of justice and the detection and punishment of crime, I am forced to the conclusion that plaintiff's services, however meritorious, were unauthorized, and his appeal should be addressed to the legislature and not to the court." This suit involved only the construction of statutes relating to New York city and county. But by chapter 535 of the general laws of 1874, it was provided that "a coroner shall have power, when necessary, to employ not more than two competent surgeons to make post-mortem examinations and dissections, and to testify to the same, the compensation therefor to be a county charge." If this statute does not cover cases of chemical analysis, or cases whose submission to a toxicologist is required, then the law should certainly be amended. It does not appear from the opinion that this statute was noticed.

The constitution of this State provides that, in case of the absence of the governor from the State, the powers and duties of his office shall devolve on the lieutenant-governor. Whether any duties performed by the governor while out of the State are constitutional, has become a question in a recent case. Two prisoners were arrested in New York, and held to await a requisition from the governor of Pennsylvania under indictments found against them in that State. The necessary documents were forwarded to Albany from Pennsylvania, but the governor was at Long Branch. The governor's secretary examined the papers, and, finding them satisfactory, sent two warrants of extradition to the governor for his signature, which was affixed at Long Branch. The warrants, of course, purported to be signed "at the capitol, in the city of Albany." The question of the validity of this act of the governor was brought before Judge Brady by habeas corpus. The decision was reserved.

Some queer cases arise in the ecclesiastical courts of England. Not long since we mentioned the celebrated "Reredos" case, wherein it was ineffectually sought to restrain the members of a church from erecting certain symbols or designs over the altar. Now the ecclesiastical functionaries are engaged in settling the question whether dissenting ministers are entitled to the prefix of "Reverend." The question has been before the chancellor of the diocese of Lincoln on behalf of a man who describes himself as "the Rev. Henry Keet, Wesleyan minister." The petitioner showed that he lost a daughter, who was buried in the churchyard of his parish, and

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over whose grave he was anxious to erect a tombstone bearing the inscription: "In loving memory of Annie Augusta Keet, the younger daughter of the Rev. H. Keet, Wesleyan minister. 'Safe sheltered from the storms of life.'" The vicar refused to allow him to erect a tomb-stone bearing such an inscription, on the ground that it included the words "Reverend" and "Wesleyan minister." | The chancellor sustained this action in respect to the title "Reverend," saying, among other things, that "it not being contended that the petitioner was in any sense in holy orders (meaning ordained by the church of England), he could not discover on what grounds it was conceived that that title (Reverend) belonged to him. The endeavor seemed to be to obtain an authoritative sanction by the church of that title." The chancellor said he might have considered the matter differently if the petitioner claimed the title as a matter of courtesy; but, as he claimed it as his absolute right, the claim must be rejected. It is understood that the case will go to the Court of Arches and to the Privy Council, where it is believed that the decision of the chancellor will be reversed.

One of those decisions which illustrate the strictness with which penal statutes have to be construed is Wine v. State of Ohio, 25 Ohio St. 69. Under a statute of Ohio, "if any person shall, in the night, willfully, maliciously and forcibly break and enter into any *** barn *** with intent to steal," it is burglary. It was held that the crime of burglary was not committed where a person, without either actual or constructive breaking, entered a barn with intent to steal, and afterward "broke out of the barn in making his exit therefrom." The unlawful breaking must precede the entry. One knows not which to admire more, the ingenuity or the justness of this distinction.

NOTES OF CASES.

IN Chidley v. Church Wardens of West Ham, 32 L. T. (N. S.) 486, the Court of Queen's Bench considered the difficult question as to whether certain objects were fixtures or mere chattels. It appeared that the premises of a distillery contained tanks which formed the roofs of rooms and houses, boiling backs and mash tuns, lying on brick piers against the walls, which formed the floors of some of the rooms, and were connected by pipes to other houses, also reservoirs, and other articles necessary for the process of distilling. They were all heavy and either unattached, except by the communicating pipes, to the walls or piers, or were fastened by screws for the purpose of being steadied. Each was to be bought and sold as a separate article, and if all were removed the premises might be used for other manufacturing purposes. It was held that the articles

were not fixtures, but chattels. When the article is attached to the land merely by its own weight, it is usually considered a mere chattel. Wiltshear v. Cottrel, 1 E. & B. 674. Still, if the intention is to make it a part of the land, it becomes a part of the land. D'Eyncourt v. Gregory, L. R., 3 Eq. 382. The true rule is expressed in Holland v. Hodgson, L. R., 7 C. P. 328, a very elaborately considered case, where it is laid down that "articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing that they were so intended lying on those who assert they have ceased to be chattels; and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel."

In Geiselman v. Scott, 25 Ohio St. 86, the Supreme Court of Ohio considered the liability of a physician or surgeon for injuries resulting from his negligence as affected by the contributory negligence of the patient. This was an action to recover of the defendant, a physician and surgeon, for malpractice in treating a swollen and diseased foot and ankle of the plaintiff. The court below charged the jury that, if the defendant directed the plaintiff to observe absolute rest as a part of the treatment to said foot, and that direction was such as a surgeon or physician of ordinary skill would adopt or sanction, and the plaintiff negligently failed to observe such direction, or purposely disobeyed the same, and that such neglect or disobedience approximately contributed to the injuries of which he complains, he could not recover-although he might prove that the defendant's negligence and want of skill also contributed to the injury. This instruction was sustained on the authority of Smith v. Smith, 2 Pick. 621, and Hibbard v. Thompson, 109 Mass. 286. But it was also held that the information which a surgeon may give a patient concerning the nature of his malady is a circumstance that should be considered by the jury in determining the question, whether the patient, in disobeying the instructions of the surgeon, was guilty of contributory negligence or not. This latter holding complicates matters somewhat, and, it appears, was not necessary to the decision of the case. The effect of the holding is, however, to render it only presumptive evidence of contributory negligence that a patient has disobeyed his physician's instructions. See, on this subject, McCandless v. Mc Wha, 22 Penn. St. 272; Smothers v. Hanks, 34 Iowa, 286; 11 Am. Rep. 141, note 146; Almond v. Nugent, 34 Iowa, 300; 11 Am. Rep. 147; Collins v. Council Bluff, 32 Iowa, 347; 7 Am. Rep. 200.