imputing to the men who occupy judicial positions any want of learning, ability, or integrity, they must commit numerous errors of judicial opinion. However eminent in learning and ability, they still are men; and to err is human. But, besides this, in our age and country, judgments, on questions improperly or imperfectly argued, are often required to be pronounced in haste by men whose brains are overworked and who have no time to supply from their own industry the deficiencies of counsel. Formerly, in the mother country, cases were argued at full length by counsel able, and amply prepared; then, if the judges were in doubt, they heard a second argument, and sometimes even a third. Now, in our country, the one only argument is limited in time by a rule of courtoften the arguing counsel have neither any natural nor acquired qualification for their task, and not unfrequently the judges come to consider of their decision after the argument, whether poor or good, is forgotten, and their memories and thoughts have become burdened with other and different questions. The embarrassment arising from the latter fact is so great that, it is said, there is now and then a judge who deems it superfluous to listen to any argument; so, while the arguing is in form being had, he occupies his thoughts with something else, and, in effect, decides the case without argument. In a recent address to the Chicago Bar Association, Judge Dillon put the difficulties of the situation in a very clear and convincing light. Some of his golden words, which ought to be printed in the largest and fairest type, and hung up in every legislative hall and every courtroom, are the following: "Forty state courts of last resort, and as many Federal courts sitting in the same states with concurrent jurisdiction, cannot, without great learning and infinite care, build up a harmonious and symmetrical system of jurisprudence. The difficulty in the way of the judges is seriously increased by the burdensome and exacting pressure of their duties, They lack, in general, neither learning nor industry; their chief want is the want of time. With so much work, and with so little time for deliberate and sedate consideration, mistakes must be numerous. But the fault lies not so much with the overworked judges as with the faulty system which imposes such vast labors upon them. The state judges, generally, are almost equally overburdened [with the Federal]. Hence we inevitably have a constantly-increasing mass of decisions, state and Federal, many of which must be erroneous, and which, while standing as precedents, bear pernicious fruits.” * The first duty, then, is legislative. Yet, in a country like ours, a duty of this sort is seldom done until its necessity is forced upon the attention of the unthinking, as well as the thinking, classes of the community. While men, esteemed competent, can be found to fill the judicial places who will consent to work under pressure, and pull to the crack of the whip, the argument that judges are not beasts, and that the public interests are not subserved by treating them as such, will have little avail. What, then, can our judges do? They can refuse to decide causes under pressure; and, if the public do not like it, let the public employ other men. This will, at first, increase the evil; but the temporary acceleration of the disease will lead to the permanent cure. The multiplication of ill-fitted and incompetent lawyers is to some degree the product of legislative folly; but, to the full extent possible with the courts, they should control and limit it. The ebb of this tide of folly already begins to appear. The courts need the assistance of competent counsel-the more in proportion to the pressure of business upon them. But, beyond this, a judge, having it in his power to admit or reject a candidate for the bar, should pause long before inflicting on an innocent and well-meaning young man the great injury of inducing him to believe himself fitted for legal practice when he is not. In the majority of instances it will lead to the wreck of all his labors and his hopes. But that to which I wish particularly to direct attention is the correction of errors already made. Not always is it properly competent for a court to overrule a wrong decision. If it has established a rule of property, and the affairs of the community have adjusted themselves to it, and have been for a considerable time conducted as it directs, the remedy should ordinarily come from the Legislature; because then there can be no divesting of vested rights. But there are various cases in which it is both just and proper 6 C. L. J. 34, 35. blunder which makes a man a felon, or even a criminal of the lower grade, in recompense for his honest and faithful endeavor to obey the law which he is accused of breaking, is of this sort. The rule of stare decisis does not properly apply to such a case. There is no vested right which the correction of the error will divest. The state is not injured by a refusal to punish those who merit no punishment. If a wrong was inflicted on Mr. A. yesterday, with no correlative benefit to any individual or the public, it is a perversion of the rule of stare decisis to hold that, therefore, a like wrong must be inflicted by the judge on Mr. B. to-day. In criminal cases this suggestion is of a wide applicability and force—much exceeding what would be permissible in civil. Now, this distinction is not always present in the minds either of practitioners or judges. And the question is what, practically, should be done when justice in a case before the court is obstructed by another case which ought to be overruled. To the judge, this question will present no difficulty-he will overrule the case. The embarrassment is with the practitioner at the bar. The judge may say: "That point has been decided once, and I will not hear it argued again." At the same time, the true argument may not have been presented on the former occasion-the judicial understanding may not have comprehended the real difficulty; yet the erroneous decision may be far-reaching in its consequences; and in the language just quoted from Judge Dillon, it may, "while standing as a precedent, bear pernicious fruit." The practitioner can only do his best in such circumstances. Let him not attempt to entrap the court, but, stating the adverse decision or line of decisions fairly, press the tribunal for a reconsideration of the question; and, if he is refused, he will be happy in the remembrance of having done his duty. The greatest difficulty is to obtain a correction of the error at the best time—namely, when it is fresh—and especially by the erring judge by whom it was made. Private communications with a judge on questions before him, or likely to arise, not in response to his own application for advisory help, are pernicious, and they should not be allowed. Yet, if an intelli Gaylor's App. 43 Conn. 82, 84. for the court to correct a former error. The gent and upright bar abstains from such com munications—as it will-this is a good which, like many others, may cast an evil shadow. A case is imperfectly or incompetently argued, no lawyer interposes as amicus curiœ (a good old practice which has become nearly obsolete), and a wrong decision follows. The mind of the judge leaps forward to other tasks, and no thought crosses it that he has blundered. The necessities of his position have isolated him from the friends who would gladly set him right. Now and then it may happen that some lawyer, perhaps his friend, is writing a law book on the very subject, yet such a coincidence is rare. Will this person, who is properly not permitted to speak of the error in private, dare to do it in his book? Not often. Such a thing has been done, but only the sternest sense of public duty could prompt this truest of all tests of private friendship. Were the judge a Mansfield or a Kent, the proceeding would be as safe as in the interests of jurisprudence, it is always desirable. But even Judge Dillon, who says, in the above-quoted passage, that our judges "lack in general, neither learning nor industry," would admit that we have considerable numbers who are neither Mansfields nor Kents. Good and great as the majority are, all are men. And a mind that does not tower considerably above the ordinary standard of able and learned men will, in general, take offence if a mistake is pointed out, under any circumstances, by any person, and prompted by whatever duty. Nor will one of this sort look when told of his error. His pride is wounded; and he will wound in turn, if he can, him whose hand was stretched out to bless. Much more, therefore, are newspaper comments, and comments even in our legal periodi cals, pointing out errors in contemporary decisions, of no benefit, as a general rule, to those by whom the errors were committed. But in our country, where judges of the highest courts are numbered by the hundred, such criticisms, in every appropriate place, are helpful to those not of the class who are criticised, and to the few of this class whose opinions carry the greatest weight. The latter may even retrace their own false steps. And those not criticised will thus be assisted to correct the mistakes of the others. On the whole, however, there is no one method by which the good sought can be accomplished. Each should do what he can; and the result which one man could not attain, or to which one method would be inadequate, may be brought about by combined methods and many hands. materials, or from accident, or strikes, or combination of workmen, or from any cause out of their control, they could terminate the contract on fourteen days' notice. In an action on this agreement by appellants for loss of service, the Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90), held, that the agreement was not in itself inequitable, but its character depended upon whether its provisions were common in such labor contracts at that time, the wages were a fair compensation for the infant's services,—all which circumstances were necessary to the construing of the contract.Leslie v. Fitzpatrick, 3 Q. B. D. 229. Injunction.-See Covenant, 1. If our jurisprudence makes, in the future, the advances which all trust it will, those who come after us will see a more intelligent hold-upon the condition of trade, and upon whether ing of the doctrine of stare decisis than now. And thereby many of the absurdities which haste and the lack of due argument have introduced into our adjudged law will disappear. It has been fortunate in all periods that the judges most adverse to revising past decisions have been the least competent ones, while the willing have been largely those who could best do this most difficult of judicial duties. Had it been the reverse, change would less often have been improvement. So it will necessarily be in the future. As strong men appear, they will tear down the rubbish while the weak lament, and erect in its place the firm and enduring.— JOEL P. BISHOP, in Southern Law Review. DIGEST OF ENGLISH CASES. [Concluded from page 370.] Guaranty.—The wife of C., a retail trader, possessed of property in her own right, gave the plaintiff, with whom C. dealt, the following guaranty: "In consideration of you having, at my request, agreed to supply and furnish goods to C, I do hereby guarantee to you the sum of £500. This guaranty is to continue in force for the period of six years, and no longer." Held, reversing the decision of Fry, J., that the guaranty did not cover sums due for goods supplied before its date, but was limited to goods sold after its date to the value of £500. -Morrell v. Cowan, 7 Ch. D. 151; s. c. 6 Ch. D. 166. Husband and Wife.-See Guaranty; Marriage. Infant.-Agreement between the appellants and the respondent, an infant, by which respondent was to work for appellant for five years, at certain weekly wages. There was a proviso, that if the appellants ceased to carry on their business, or found it necessary to reduce it, from their being unable to get Insurance.-1. Plaintiff insured his house, worth £1,500, for £1,600. The Board of Works subsequently took the property under statutory power; the price had been agreed, and the abstract of title furnished and accepted, when a fire destroyed the house. Held, that the dealings between the Board and the plaintiff did not affect the contract, and the defendants must pay £1,500, the value of the house.-Collingridge v. The Royal Exchange Assurance Corporation, 3 Q. B. D. 173. 2. Two ships belonging to the same owner collided, and one of them sank and became a total loss. The owner paid into court the amount of tonnage liability in respect of the ship in fault, under the provisions of the Merchant Shipping Acts. The underwriters on the ship lost claimed to be entitled to a portion of this, as they would have been had the ships belonged to different parties. Held, that their right in such case existed only through the owner of the ship insured, and not independently, and as he could not sue himself, they could not recover.-Simpson v. Thomson, 3 App. Cas. 279. Intention.-See Domicile. International Copyright.-See Copyright. Jury-See Bill of Lading; Negligence. Lease.-Plaintiff became the owner of a lease of two farms, at a rent of £310 per annum. The lease contained, inter alia, a covenant on the part of the lessee not to mow meadow-land more than once a year, and not to underlet any part of the premises without the consent in writing of the lessor; but such consent was not to be withheld if the proposed sub-lessee was a respectable and responsible person. It was provided, that, if the lessee should wilfully fail to perform the covenants, or if he should become bankrupt, or make a composition with his creditors, or if execution should issue against him, the lessor might re-enter. Eight years before the expiration of the lease, plaintiff entered into negotiations with the defendant, a respectable and responsible person, for an underlease of one of the farms, on the terms under which he himself held it; and he stated that he paid £220 rent for it. An arrangement was made, accordingly, by which defendant was to have possession June 24. Before that time, defendant's solicitors had objected to the above provisions in the original lease, and had noted the same on the margin of a draft lease sent them by plaintiff's solicitors, in pursuance of the arrangement between plaintiff and defend ant. They suggested a modification of the original lease. They did not object that plaintiff held no separate lease for the farm at the rent which he stated he paid. While the negotiations were pending, defendant, on June 24, took possession. Subsequently, the modifications not being procured, defendant refused the lease; and, in an action for specific performance, or for damages, it was held that taking possession was only evidence of a waiver of objection to the title, and could be rebutted; that, by not noting objection to the plaintiff's holding no separate lease at £220 rent, defendant had waived that; that, if the sub-lessee was a respectable and responsible person, the written consent of the lessor to the sub-lease was unnecessary; that the covenant against mowing meadow-land more than once a year was not an unusual covenant; but that the provision for re-entry on bankruptcy, &c., of the lessee was unusual, and the defendant was not bound to specific performance, nor liable in damages.-lyde v. Warden, 3 Ex. D. 72. See Covenant, 2, 3; Specific Performance, 1, 2, Lien. in 1864 in London, in accordance with the requirements of English law. Subsequently they both returned to Portugal, and have never lived together. By the law of Portugal. marriages between first cousins are null and void; but the Pope may grant a special dispensation which legalizes such marriage. Held, reversing the decision of Sir R. PHILLIMORE, that a petition for nullity of the marriage ought to be granted.-Sottomayor v. De Barros, 3 P. D. 1 ; s. c. 2 P. D. 81. Married Woman.-See Anticipation. Master and Servant.—See Shipping and Almiralty. Misrepresentation.-See Vendor and Purchaser. Mortgage.-A company with power to issue "debenture bonds" and "mortgage bonds," having an office in London and owning land in Florence, issued "obligations" binding themselves, their successors, and all their estate and property, to pay the bearer the sum stated on their face, with interest, in eight years; but reserving the right to call in a certain number of them each year by lot. The company afterwards duly mortgaged its property in Florence, in the Italian form, to a London bank, with notice of the issue of the "obligations." On breach of this mortgage, the mortgagees began proceedings at Florence, and got an order to sell. The plaintiff, holder of some of the "obligations," applied for an injunction to restrain the sale. Held, that it was contrary to comity for the court to interfere while proceedings were going on in Florence; also that the "obligations" were not mortgages, but only bonds, and constituted no claim on the land in Florence as against the mortgagee.— Norton v. Florence Land & Public Works Co., 7 Ch. D. 332. See Attorney and Client, 2. Mortmain.-A testator bequeathed the sum of £3,000 to the corporation of T., directing £1,000 to be laid out "in the erection of a dispensary building, which is so urgently needed there,” and the remaining £2,000 to be held "as an endowment fund for the said dispensary." The Limitation of Liability.—See Common Carrier. corporation already held lands in mortmain, Loan.-See Partnership. Marine Insurance.-See Insurance, 2. Market-See Sale. upon which it could legally build a dispensary. Held, that the bequest was void under 9 Geo. II., c. 36, as not expressly prohibiting the purchase of land for the dispensary.-In re Coz. Marriage.-B. and S., Portuguese subjects and first cousins, went through the form of marriage | Cox v. Davie, 7 Ch. 204. was Negligence.-Respondent was a third-class passenger on appellant's underground railway, and at the G. station three persons got in and stood up, the seats in the compartment being already full. The respondent objected to their getting in; but there was no evidence that appellant's servants were aware of it, and there was evidence to show that there was no guard or porter present at the G. station. At the next station the door was opened and shut, but there was no evidence by whom. Just as the train was starting, there was a rush by persons trying to get in; the door was thrown open; the respondent partly rose to keep the people out; the train started, and he was pitched forward, and caught with his hand by the door-hinges to save himself; a porter pushed the people away just as the train entering the tunnel, and slammed door to, and thereby respondent's thumb was caught and injured. Held, reversing the decision of the Common Pleas and of the Court of Appeal, that there was no evidence that the injury was occasioned by the negligence of the appellant sufficient to go to the jury. It is a question of law for the court to say whether there is any evidence of negligence occasioning the injury to go to the jury. It is a question of fact for the jury to say what weight shall be given to the evidence submitted to them. Brydges v. The North London Railway Co. (L. R. 7 H. L. 213) construed.-The Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193; s. c. L. R. 10 C. P. 49; 2 C. P. D. 125. See Shipping and Admiralty. Notice.-See Bills and Notes, 4; Covenant, 3, 4. Nullity. See Marriage. the Pannage Is a grant to the owner of pigs to go of right into the wood of the grantor, and allow his pigs to eat the acorns and beechmast which fall upon the ground. It does not entitle the owner of the right to have the grantor enjoined from cutting down the trees, or, a fortiori, from lopping the branches to improve the trees. This is the first pannage case to be found in the books.-Chilton v. Corporation of London, 7 Ch. D. 562. Parol Evidence.-See Will, 1. Partnership.-Partnership articles were entered into by M. and S., reciting that, under section 1 of Bovill's Act, (28 & 29 Vict. c. 86), D. had agreed to lend them £10,000, to be in vested in the business, subject to the following provisions, inter alia, agreed to by all the parties: The capital of the firm is to consist of said £10,000, and such other sums as shall be advanced by any of the parties,-all to bear interest at 5 per cent.; said £10,000 is advanced as a loan by D. under said section of Bovill's Act, and does not, and shall not, render D. a partner; M. or S. only shall sign the firm name; D. shall receive an account current at the end of each year, and be at liberty to examine the books at any time; an inventory shall be taken yearly, and the net profit or loss divided, in the proportion of 25 per cent. to D., and 371⁄2 per cent, each to M. and S. In case of the death of M. or S., the business may continue, and the share of profits of the deceased partner shall be divided pro rata between D. and the other; D. may dissolve the partnership in case his original capital of £10,000 be reduced more than one half by losses, or on the death of a partner, and D. may demand for himself a liquidation of the business. On the death of D., his representatives shall not withdraw any of his capital until the termination of the present contract; D. may substitute any other person into his rights; and M. and S. have the same option with D., "by reimbursing him his capital and interest." Under this agreement, D. advanced at different times about £6,000 more. On the bankruptcy of the firm, held, that D. was a partner, and could not prove as a general creditor.-Ex parte Delhasse. In re Megevand, 7 Ch. D. 511. Patent. Three referees were appointed, under an act of parliament, to inquire into the impurities of the London gas, with the right to require the gas companies to afford them facilities for their investigations. As a result of their examination, the plaintiff, one of the referees, thought he had discovered a method of securing greater purity in the gas. The requisite change in the process of manufacture was suggested to the defendant company by the referees, and the company tried it, with success. The referees made their report, incorporating these suggestions and experiments; but the report was withheld from publication for a few days, in order to enable the plaintiff to get out a patent for his discovery. Held, that when the knowledge acquired by the plaintiff in the course of his investigation was communicated to the other |