The Albany Law Journal.

ALBANY, OCTOBER 30, 1880.

CURRENT TOPICS.

66XPERTS and Expert Testimony" is the title

of a paper read by John B. Chapin, M. D., of the Willard Insane Asylum, before the association of superintendents of American asylums for the insane, last May. Dr. Chapin makes a strong argument against the admission of hypothetical questions to witnesses who have not heard all the evidence. He attributes the popular prejudice against expert witnesses to the following causes: "1st. The fact that medical experts are usually summoned by counsel, and not by the court, in the interests of their side or clients, and their supposed liability to have a bias arise in the progress of the case a possible risk that their feelings and sympathies may become enlisted in behalf of the side on which they are called. 2d. The arrangement which is sometimes made for the payment of money, or a retaining fee, to medical experts for their services, by counsel in whose interests they are summoned, the amount of which is not fixed by law, and which may possibly be contingent upon the issue of the case. 3d. The form of submission of the hypothetical question which is permitted to contain a portion, and not the whole, of what a physician may deem essential to the formation of a satisfactory opinion, or so much as may be necessary to bring an answer favorable to the interests of one or the other parties; and 4th. The general prejudice which exists in the popular mind against the interposition of the plea of insanity in criminal cases."

No

While admitting the difficulty in adopting any new rule for the selection of witnesses, he insists that "legislation must be invoked to alter the practice so that the law confer upon judges alone the power to subpoena experts in such cases where their opinions would seem to be desirable. There can be no doubt the power thus conferred would be exercised wisely and result in elevating the standing and character of expert testimony, and what is more important, restore to experts that independence of judgment and respect for their opinions we do not believe they enjoy under the present system. suspicion of bias could then properly attach to them. They would then assume their appropriate and originally-intended relation to the court, that of amicus curiæ." As to the compensation of expert witnesses, he says: "It would therefore seem to be the proper and obvious course to authorize and direct the court in all cases where experts appear, to fix and determine their compensation, in its discretion, and if deemed necessary to go further, prohibit by positive enactment the reception of any gift or compensation for expert services directly from parties interested." We see no theoretical objection to the first of these suggestions. In pracVOL. 22.- No. 18.

tice, however, it would necessarily degenerate into the summoning of such witnesses as either party desires. As to the latter suggestions, while it might not be improper to let the judge fix the compensation, it seems hardly fair to impose the expense of expert witnesses on the public.

The late decision of the Court of Appeals of this State in People ex rel. Campbell v. Campbell has been misunderstood in some quarters. The proceedings were instituted to reverse the action of the defendant, as commissioner of public works in the city of New York, in the removal of the relator from his office of chief engineer of the Croton aqueduct. The alleged cause of removal was the improper construction of an arch. The defense was that the relator was not charged with daily supervision of the work, but that this duty was devolved by the commissioner of public works on certain inspectors appointed and employed by him for the purpose, and that the defect resulted from the negligence of these inspectors. This defense having been made out, the Court of Appeals now say that there was no evidence to justify the removal, and they annul the order of removal. The opinion was written by Judge Finch, Judges Rapallo, Andrews, and Earl, concurring; Chief Judge Folger and Judges Miller and Danforth dissenting. The relator's counsel very correctly states the law of the case and the theory of the decision as follows: "The law, as laid down by the Court of Appeals in this and prior cases, is substantially this: The heads of bureaus and regular clerks under the city charter hold office by a qualified tenure of good behavior. They can only be removed for cause, and 'the cause is to be some dereliction or general neglect of duty or incapacity to perform the duties or some delinquency affecting their general character and fitness for the office.' Such was the opinion of the court delivered by the late Judge Allen some two years ago in People ex rel. Munday v. Fire Commissioners, 72 N. Y. 445. The charter provides that before a removal the person must be notified of the cause of the proposed removal and be allowed an opportunity for an explanation. The present case lays down clearly the process for removal and the remedy in case of supposed injustice. The superior officer is to notify the subordinate of his intention of removing him and assign the cause, which of course must be sufficient on its face. The subordinate then is allowed to explain the unfavorable appearances or alleged misconduct. No formal trial is allowed and no evidence is taken. The superior officer can make the removal without further formalities. But there is one safeguard against abuse of this power. The removed subordinate, if he deems himself aggrieved, can apply to the court. Upon his application the superior must give a statement of the facts from which he drew the conclusion that the accused party was guilty of the charge. If in this statement any facts appear which tend to prove the charge, the removal stands, and the aggrieved party has no redress except to sue his superior for making a false

return. If, on the other hand, the statement disproves the charge- that is, contains no evidence, however slight, to sustain it—the removal is to be set aside, because made without cause." Judge Finch says: "Here, we conclude, there was no evidence, since the solitary fact upon which the commissioner relied was one which in no manner affected the relator."

It is sug

The ghost of the constitutional amendment decision in Indiana seems not yet laid. The New York Times says: "The remarkable claim set up by certain leaders of the Democratic party that the recent election is not valid because the Supreme Court, in its decision upon the constitutional amendments did not have the third amendment, which changed the date from October to November, before them at all, and therefore the election should have been held under the amendments without questioning its ratification, has awakened no inconsiderable interest. gested that the governor will be made a party to mandamus proceedings, and long litigation forced upon successful candidates. The Republicans themselves have started the question whether or no the new Supreme Bench-three Democrats and two Republicans - might not reverse the decision of the old court (inasmuch as Judge Niblack will still be a member of the readjusted court, and he decided the amendments to have been legally ratified), and by such reversal invalidate the whole election of Tuesday week." This paragraph illustrates four points. First, the popular impression that the Indiana Supreme Court is a very fickle tribunal, an impression which is warranted by its course in several recent cases. Second, the indecent partisan estimate of the motives which influence courts in pronouncing judicial decisions. Third, the singularly inconsistent suspicion, apparently entertained by members of one political party, that judges of the opposite party would deliberately decide to turn themselves out of office. Fourth, the gross popular ignorance of legal principles, which leads men to suppose that a court could pass on the validity of its own election. The constitutional amendments must stand or fall as a whole. If the late election was irregularly held, all that it brought about must go down, the two new Republican judges are not lawfully elected, and can join in no decision; and

as without them the former decision cannot be reversed, it is difficult to see how it can in any event be set aside. The court would decide itself out of office by such a judgment. It is like the case of the man sitting on the limb of a tree, outside his saw, and sawing himself off with the limb. The conjecture described in the Times' paragraph is the sheerest nonsense that was ever conceived.

The failure of the women's bank, in Boston, that pretended to pay eight per cent a month on deposits, has stirred up some fault-finding. Those who have been deceived are now disposed to blame the law for not having laid hold of the cheats before the

catastrophe. The promoters of the fraud having now been put in jail, the question is asked, why could not the law have broken up this business before the suspension of the bank? The answer is simple: there is no law to prevent a bank from offering to pay eight per cent a month for deposits, nor from paying it. There is no law to prevent a man from offering to carry passengers by balloon to the moon, nor from carrying them there. All experience shows that neither of these promises can be fulfilled, and if people are so silly as to believe that they can be, they have none but themselves to blame for loss by the inevitable failure. If the credulous depositors in the women's bank could only have held their faith, and kept on depositing, the day of failure would have been indefinitely postponed, for the early lenders would have received their interest out of the capital of the later depositors, and the devil would have taken the hindmost, according to usage and the proverb. We do not now exactly understand on what charge the managers have been incarcerated, but whatever it is, it could not have matured so long as the bank kept its promises. The scheme was a shallow, shameless fraud from the start, and the defense of it put forth by Gail Hamilton a few days before the breaking of the bubble, is a pregnant commentary on the fitness of women to vote, to legislate, to become lawyers, to hold office, and generally to take care of themselves. Fools are plenty among men, but it would be hard to find men who would invest their money at eight per cent a month. That is the reason why the blessings of the late bank were only vouchsafed to

women.

The annual meeting of the New York State Bar Association will be held at the city of Albany, on the 16th day of November next. We understand that Hon. George W. Biddle, of Philadelphia, is to deliver the annual address, and that the exercises will be of an interesting character.

NOTES OF cases.

'N People's Ice Co. v. Steamer Excelsior, Michigan

plaintiffs were engaged in a general ice business in Detroit, Mich., and the lessees of a large portion of the water front of Belle Isle, in the Detroit river, along which and outside of a line fifteen feet from the shore they had constructed a boom. On January 11, 1878, the pond formed inside of such boom was frozen over with hard, clear ice six inches thick, and on that day the defendant boat was, by her master, run backward and forward on such river, and so unusually near the boom that the swell caused by the steamer broke up the ice so that plaintiff was unable to harvest it, and the weather continuing mild thereafter so that ice did not properly form, plaintiff was, by reason thereof, unable to get a stock or fill its ice-houses. There was room for the boat to pass farther away from such boom,

and where the swell would not have injured such ice. Held, that defendant boat was liable for the damage so caused. The court observed: "Was, then, the respondent's right to navigate the Detroit river subject to complainant's right of property in this case? Ordinarily it may be said that the entire width of the highway may be used, yet the owner of the land over which it passes may, within the limits thereof, plant trees, set posts, and do such other acts as will add to his convenience or assist in beautifying his premises. He is encouraged in doing this by public sentiment, in the remission of taxes by the public authorities for the planting of trees, and in the protection which the law gives him by the punishment of those who interfere with or destroy what he has done. Public convenience may, in time, in particular locations, require the removal of some of these things, and whenever the necessity arises and the public authorities request their removal, then the private must give way to the public or paramount right. But while permitted to remain, no one travelling the highway could wilfully injure or destroy them, and should any one do so he would justly be held responsible, notwithstanding his plea of a claim of right to travel over any part of the highway. If the law were otherwise, the streets in our cities and villages and our public highways would soon be stripped of their shade and ornament. Clark v. Dasso, 34 Mich. 86. So, in cities, the right to use the public streets whereon to deposit material for building purposes is frequently granted and enjoyed. Has the traveller the right unnecessarily to willfully or negligently drive over and break, mar or destroy such materials, upon the plea of a right to use the highway? The law in this country requires the owners of vehicles, when meeting, each to bear to the right, yet it has never been supposed that a neglect so to do on the part of one would justify the other in willfully or carelessly injuring the person thus in the wrong. A teamster may temporarily incumber a part of the highway while loading or unloading, and while thus exercising his right another cannot insist upon occupying the same place, or carelessly drive into and injure his team or vehicle. Cary v. Daniels, 8 Metc. 478. The right of fishing in our public navigable waters is one largely and profitably enjoyed, and in order to carry on the business successfully it frequently becomes necessary to set nets extending into the river channels and the deep navigable waters of our lakes. This may, and to a limited extent does, cause vessels to change their course, in order that the property of the fishermen may not be injured or destroyed. The master of the vessel would not be justified if he should unnecessarily or wantonly run his vessel upon the nets and destroy them. Post v. Mum, 1 South. (N. J.) 61. So, in the rafting, running and towing of logs in our navigable waters, vessels are sometimes necessarily delayed, or caused to change their course, yet in cases where the owners of the logs were exercising due care and reasonable diligence, the vessel must suffer the temporary delay or inconvenience caused. So, in estab

lishing dock lines and boom limits on our river and lakes, the channel is frequently encroached upon, in order to reach deep water, that the right may be useful and valuable; and although the channel may thereby be narrowed, yet if ample room for the purposes of navigation remains, the owners of vessels cannot complain. Of course the right of navigation is paramount, and no unreasonable or unnecessary obstruction can be permitted to interfere therewith; but while this is so, yet the riparian proprietor and the public do not thereby lose all right to use the stream for any other and legitimate purpose which will not unreasonably interfere with the right of navigation. The right of navigation, while paramount, is not exclusive, and cannot be exercised to the unnecessary or wanton destruction of private rights or property, where both can be freely and fairly enjoyed. But in this case the vessel did not run into the boom, and therefore it may be said the case is not parallel with those we have been considering. The principle, however, is the same, which recognizes the superior right of the vessel, but punishes any abuse of that right. It is also clearly apparent that vessels have not an exclusive right to use the entire channel, which may be narrowed or used for purposes, some of which are but remotely if at all connected with the subject of navigation. It is well known, as this case proves, that there is a class of vessels navigating our lakes and rivers which cause, when running, very great commotion or swells in the water. It is also well known that on many of the rivers a class of lighters and barges are used for the lighterage or necessary transportation of the agricultural, manufacturing and mining products of the country. This class of vessels are often loaded to the water's edge, and smooth waters are thus considered perfectly safe, and yet they could not venture out where the wind or waves could reach them. Would a steamer approaching such a tow, where it was clearly apparent the swell she created would endanger the lighter or cargo, be justified in recklessly pursuing her course at full speed, in case damage resulted? Upon some of our rivers and water highways artificial banks have been formed for the benefit of commerce, and to prevent a spread of the waters over the adjoining country. The swells caused by steamers of a certain class would, by washing such banks, and otherwise, weaken and injure them, and thus create danger of public and private damage. Such dangers are frequently guarded against by legislation, or rules of the highway, but it may be questionable whether such regulations are not merely declaratory of the common-law maxim that a man must enjoy his own property in such a manner as not to injure that of another person. So the right to boom logs is necessary to their profitable manufacture. The owners must therefore be protected in this right, else it would be of but little value. Vessels would have no right to destroy them, or wantonly run so close to them as to cause a loss of the property therein. A vessel has no right to wantonly run so close to the shore, to a boom or to a dock, as to cause damage

which could easily be avoided by standing further off."

In Higler v. People, Michigan Supreme Court, Oct. 6, 1880, 6 N. W. Rep. 664, it was held that one falsely representing himself to be a "storekeeper" is guilty of a false pretense within the statute in regard to obtaining money or goods under false pretenses. The court, Cooley, J., said: "Pecuniary responsibility is no more a necessary attendant upon a commission in the army than upon the keeping of a store, but the false assertion that one holds such a commission has been held a false pretense. Reg. v. Hamilton, 1 Cox's C. C. 244; S. C., on appeal, 9 Q. B. 271; Thomas v. People, 34 N. Y. 351. So the pretense that one is buying horses as a gentleman's servant may be a criminal false pretense, though the fact of service by itself would not be likely to inspire confidence, except in connection with the further fact, expressed or understood, that the master was to pay the purchase-price. Reg. v. Dale, 7 C. & P. 352. Now, it is unquestionable that the fact that one is a storekeeper is one which would be likely to give a degree of confidence and credit. There is an implication, if not of solvency, at least of the possession of considerable money, in the very idea that one is keeping a store. With no knowledge of his responsibility, one would sooner trust him for small sums than if he had no business, or if his business were unknown. A storekeeper is not expected to refuse payment of small debts whether payment can or cannot be enforced. It is inconsistent with business prosperity that he should do so, and prima facie he will have in his hands the means whereby such debts may be paid; and if such a person, when away from home, had occasion to borrow a few dollars for expenses, a lender would trust, not to his responsibility, but to his honor, for repayment, and would probably ask no questions further after learning what was his business. But the question of the inability of pretense is one rather of fact than of law. If it was false, and had a tendency to deceive, and did actually deceive and accomplish the intended fraud, the case is within the statute. Reg. v. Hamilton, supra." Campbell, J., dissenting, said: "The cases which have held a false statement of office or position sufficient are mainly, and so far as original authority goes, I think, entirely, cases where the character assumed involves such elements as to make it safe to trust the party from that alone. They are such instances as officers of the army and navy, government officers, and English university commoners. An officer of the army or navy is liable to punishment for any sort of dishonest conduct, and officers appointed to honorable positions are presumably reputable. Moreover, all of these have a pecuniary income, which is known to every one, and the assumption of this character is a representation of their means and station. The conditions of residence in an English university make it entirely safe for a local tradesman to trust a commoner to any reasonable extent." The false pretense in Thomas v. People, supra, was that the defendant was a chaplain in the army.

LEGAL DEFINITIONS OF COMMON WORDS. IV.

66о resort" means to go once or more.

State v.

66Ah Sam, Nevada Supreme Court, Feb., 1880.

This was under a statute forbidding any one "to resort" to any place to smoke opium. The court said: "The appellant also contends that the district judge erred in instructing the jury to the effect that going once to a place kept for opium smoking for the purpose of smoking is an infraction of the law. What the statute forbids all persons to do is to 'resort' to such places, and it is argued that resort means, not to go merely once, but to go and go again; in other words, to make a practice of going. The etymology of the word 'resort' lends some support to this argument, but the definitions given in the lexicons show that whatever may have been its original meaning it no longer means any thing more in the connection in which it is employed in the statute than to go once."

"Eggs" are not "meat" nor "poultry," within a statute prohibiting the sale of such articles when unsound. See 21 Alb. L. J. 360.

Boring through a floor with an auger constitutes burglary, say the Alabama Supreme Court, in Walker v. State. This was where the prisoner bored a hole through the floor of a corn crib, stopped it up with a cob, and afterward, on a separate occasion, drew the shelled corn through the hole into a sack underneath the crib.

"Brass knucks" is used in the statute as the name of a weapon, without reference to the metal of which it is made. Therefore a conviction of unlawfully carrying "brass knucks" will not be set aside because it was proved that the weapon was lead or pewter. Patterson v. State, 3 Lea, 575.

"Terms cash" is not equivalent to "received payment." "Terms cash," on an unreceipted bill of goods sent by a wholesale to a retail dealer, cannot be held as matter of law to imply that the goods were paid for before they were shipped. Wellaner v. Fellows, 48 Wis. 105.

A receipt for money as part of the purchase-price of a farm is an 66 acquittance," "within the statute of forgery. State v. Shelters, 51 Vt. 105; S. C., 31 Am. Rep. 679. The court said: "It is not questioned but that a receipt in full is an acquittance. Why, therefore, is not a receipt for a part of a demand or obligation an acquittance pro tanto? We are aware that lexicographers do not fully agree as to this; but in legal proceedings a receipt is regarded as an acquittance."

A farm overseer is not a "laborer," within the lien law. Whitaker v. Smith, 81 N. C. 340; S. C., 30 Am. Rep. 503.

A stipulation by the vendee of a newspaper to "pay all of the outstanding liabilities," will not cover a subsequent recovery in a suit for libel pending against the vendor at the time of the sale. Perret v. King, 30 La. Ann. 1368; S. C., 31 Am. Rep. 240.

In a statute providing for the punishment of the