The Albany Law Journal.

THE

ALBANY, FEBRUARY 10, 1883.

CURRENT TOPICS.

There are several subjects that even The Nation knows nothing about, and when it falls to talking about codification, it talks of what it knows nothing about, and consequently unwisely. When it says "the Code of Procedure produces more new law in a year than the Massachusetts Practice Act does in ten," it "gives itself away," for what is that act but a Code? It may be a better Code than ours, possibly, but we guess not. Probably some Massachusetts man is writing this nonsense for The Nation. If The Nation is opposed to written laws it ought to discountenance statutes, and even reports, for the former occasion a great deal of construction, and the latter a great deal of conjecture, explanation, and attempts to harmonize. All our law now be

to express the substance of it in one book, calling it a Code or a statute, as it may please the critics. The Nation will hardly succeed in defeating codification by its ipse dicit in a couple of neat little "current topics."

We

HE Judiciary Committee of the Assembly held a session on the 31st ult., for the hearing of parties upon the Sunday law amendments. Mr. David Dudley Field, Ex-Judge Arnoux, and Mr. W. W. Atterbury, by invitation, were heard in favor of the law as it now stands. Mr. Field first directed the attention of the committee to the fact that this Penal Code, embracing so many interests and suching written in a great number of reports, let us try a wide variety of topics, had been accepted by the people without objection except in two or three particulars. He then eulogized Mr. Noyes and Mr. Bradford, two of the commissioners, who with him had originally framed this Code. He then gave an account of the protracted and severe labor and thoroughness of the committee, and its reception by the Legislature, and the action of the governors thereon. In all the opposition to this bill from time to time, there had never been a single suggestion of an amendment to the Sunday law. Mr. Field then with great cogency explained to the committee how fully the rights of the community were protected by the words, "necessity or charity, and closed by advocating a day of rest as a necessity for all classes in the community, particularly for the working men. Judge Arnoux presented the question in three aspects: historical, religious and social. He briefly traced the law from Constantine to England and the American Colonies. The first Sunday law enacted in America was by the Cavaliers in Virginia in 1617, three years before the landing of the Pilgrims. The south has the severest Sunday law, and New York the most liberal of all. The law recognizes the religious rights of those who worship God according to the dictates of their own conscience, and while it forces none to attend any service, it prevents the infringement of the rights of those who do, by preventing their disturbance — an application of the maxim sic utere tuo ut alienum non lædas. All nations, American, English and continental, recognizes that religion is the great conservator of public virtue, and therefore they are sedulous to aid and foster the religious sentiment. Nations recognize the law of periodic rest. It is a law for the workingman, not for the employer or the sick. This is recognized by the socialists in France, Germany and Switzerland, who now are most earnest in demanding the rigid observance of Sunday as a day of rest. In answer to questions by the committee, the speaker gave some account of the decisions of the courts on the Sunday law, and showed that the construction given by the judiciary made any amendments unnecessary. Atterbury followed with a brief appeal to preserve Sunday as it had always been observed by the people of this State.

VOL. 27-No. 6.

Mr.

This country may reasonably seem very singular to that esthetic Briton, Mr. Oscar Wilde. In his new book doubtless he will have much to say about our Indians, our mining territories, our barbaric splendor, and our barbaric taste, but it is doubtful that he will allude to our "sod" school-houses. ourselves did not know of them until we read the recent case of School District No. 36, York County, v. McEntie, decided by the Nebraska Supreme Court, and reported in 14 N. W. Rep. 656. The action was replevin for a school-house, or rather for the "sod," etc., of which it had built on the land of a third party, and of which the defendant had become possessed. The court remark: "The testimony informs us that the sod walls of this house were put up nine or ten years ago. One witness describes it at the time of the commencement of the suit in the following words: Question. How was the sod? What condition was it in? Answer. The sod was torn to pieces. Some children had dug holes through it, and the cattle had pulled it down.' None of the witnesses attach any value whatever to the sod body of the house. They differ all the way from fifteen to fifty dollars as to the value of the lumber. The sod house of Nebraska must not be confounded with the sodded cabin of the early days of northern Illinois and Wisconsin, nor with the doby of the country south-west of us. The sod house is, or was, when that style of architecture prevailed to some extent in the new settlements of this State, composed of the tough sod, as turned over by the breaking plow, cut into convenient sections and laid in the wall, without mortar or backing of any kind. The life of a wall thus composed is very short anywhere, but grows somewhat longer as we go further west, in proportion to the diminished annual rainfall. In York county ten years must be its extreme old age." The graduates of even such a school-house, we doubt not, will on the average have more sense and be of more use in the world than Mr. Oscar Wilde and his "school."

WH. POTTS,

cases.

adopt." The contrary doctrine was held in Johnson v. State, 3 Lea, 469.

a wrongful taking. Officers, clerks, servants and agents, by virtue of their employment, having property of others rightfully in their possession, and converting it, not by a technical trespass, but in violation of a trust reposed in them, had been held not guilty of larceny, on account of the lawfulness of their possession. The statute was designed to correct the evil introduced by the decisions in such And the evil of embezzlement by agents was not confined to instances in which the fiduciary relation was of long duration, or was accompanied by compensation, or a certain measured extent, exclusiveness or subordination of service. The ques-"The cornea of the plaintiff's eye was cut in three tion is not how general, protracted or exclusive the defendant's agency was, but whether he was the agent of K. and P. for exchanging the evidence of their liability. He was their agent for that purpose, if he and they understood him to be so.

In Jewell v. Union Passenger Ry. Co., Pennsylvania Supreme Court, January 20, 1883, 40 Leg. Int. 36, it was held, in an action of damages for personal injury, by negligence, that no damages will be allowed for any speculative or merely possible consequences of the wound, in the absence of evidence that the result will become more serious; as in case of an injury to one eye, and the barely possible result of inflammation extending to the other. The court said:

* * *

places, in the lower, outer and quarter, below the line of vision, and the iris became attached to the lower branches of the corneal injury. The power of the eye is permanently weakened, but its condition has remained unchanged for the last twenty In many cases persons have been held not to be months, while subjected to the severest tests, and clerks or servants within the meaning of certain during this time the plaintiff has been able to work statutes. In Reg. v. Bowers, L. R., 1 C. C. 41, the from eleven o'clock, P. M. till seven o'clock, a. M. defendant was authorized, as a travelling agent, to As the measure of damages in this case is compenget orders for coals when and where he pleased, and sation only, the verdict transcends the proper limits, to receive payment for them, and was entitled to a unless we believe that a more serious impairment or commission on what he collected and paid to his em- an entire loss of vision will follow as a direct conployer. He was held not to be sufficiently under sequence of the plaintiff's injury. The adherence of his employer's control to be a clerk or servant, be- the iris may cause inflammation, which will affect the ing at liberty to dispose of his time in the way he interior of the eye, and may aggravate an inflammathought best, and to get or to abstain from getting tion produced by any cause, and the loss of its sight orders on any particular day as he might choose. follow. The other eye, to some extent, is exposed This state of things was deemed inconsistent with to the same risk, because of the danger of symthe relation of master and servant; but he certainly pathetic inflammation. If an allowance should be was an agent in the collection of his employer's made for such results in the assessment of damages, money. The decision in Reg. v. Negus, L. R., 2 C. the verdict is not too large. They are proper eleC. 34, was the same as in Reg. v. Bowers. In Reg. ments of damage, if they are fairly probable and not v. Foulkes, L. R., 2 C. C. 150, it was held there was merely possible. Upon the trial there was very litevidence on which the jury might find that the de- tle testimony directed to this point, and none that fendant was employed as a clerk or servant, al- in our judgment furnishes a just ground for a belief though his service was performed without compen- that the plaintiff's injury will become more serious sation, and under no contract or other obligation. In than it now is. Demonstration on such a subject is Rex v. Prince, 2 C. & P. 517, there was evidence not to be expected, but something more than a mere upon which the jury might have found the defend-speculation as to possibilities is required. If the ant was an agent of the prosecutor for getting a bill plaintiff can furnish satisfactory evidence on this discounted. Abbott ruled he was not an agent point he will have an opportunity of doing so, if he within a certain statute, because he undertook to get elects to try the case again. the bill discounted as a special, friendly act, and not in the exercise of a general business of agency. This conclusion was reached upon evidence of the legislative intention found in the preamble, and the application of the rule that limits a general signification of a word by the restricted sense of others of the context, when it is so grouped with them as to raise a presumption that the meaning of them all was intended to be confined within certain bounds of classification. If in Reg. v. Coopes, L. R., 2 C. C. 123; Reg. v. Tatlock, 2 Q. B. D. 157; Reg. v. Cosser, 13 Cox, C. C. 187; Com. v. Stearns, 2 Met. 343; Com. v. Libbey, 11 id. 64; Com. v. Foster, 107 Mass. 221; State v. Kent, 22 Minn. 41, or in any other case that we have seen, there is any statutory construction that would not allow the question of agency in this case to be submitted to the jury, the reports do not sustain it by any reasoning we can

In Hall v. Marshall, Kentucky Court of Appeals, December 16, 1882, 2 Ky. L. J. 518, it was held that an offer by citizens, in favor of a removal of a countyseat, to give the grounds and build the court-house free of cost to the county in case of removal, does not amount to a bribe to the voters on the question of removal, although it influenced voters. The court said: "In Dishon v. Smith, 10 Iowa, a case involving the question of removing the county-seat, the citizens of the one town agreed to pay five hundred dollars to build a bridge connecting the two townships, and to convey certain real estate in the county in order to relieve some objections to the removal. The county judge in that case was enjoined as in the present case from removing the records, etc., in accordance with the vote; and in

CRIMINAL LIABILITY OF PHYSICIAN
FOR DEATH PRODUCED BY HIS
GROSS IGNORANCE.

N State v. Hardister, 38 Ark. 605, it was held that a physician is criminally liable for his gross ig norance causing the death of his patient, but not for mere mistake of judgment. It may be well to look at the authorities, ancient and recent, on this point, for they are not quite harmonious.

Sir Matthew Hale said: "If a physician gives a person a potion, without any intent of doing him any bodily hurt, but with an intent to cure or prevent a disease, and contrary to the expectation of the physician, it kills him, this is no homicide; and the like of a chirurgeon. And I hold their opinion to be erroneous, that think if he be no licensed chirurgeon or physician, that occasioneth this mischance, that then it is felony, for physic and salves were before licensed physicians and chirurgeons; and therefore if they be not licensed according to the statute (3 H. 8, chap. 11 or 14 H. 8, chap. 5) they are subject to the penalties in the statutes, but God forbid that any mischief of this kind should make any person not licensed guilty of murder or manslaughter. These opinions therefore may serve to caution ignorant people not to be too busy in this kind with tampering with physic, but are no safe rule for a judge or jury to go by," etc. 1 Hale's Pl. Cr. 429.

the petition or complaint it is alleged that the agreement was made with a corrupt intent of procuring votes so as to change the result. The court said: 'We do not think the giving facilities for the public convenience to the whole county, such as furnishing a building for the courts and officers, and thus relieving a county from a burden of expense, amounts to bribery. If the people of a town desire a county-seat located at such place, there is no wrong and no corruption in their offering and giving facilities to produce such result.' In the case of Overman v. Kerr, 17 Iowa, 485, an act was passed authorizing certain commissioners to locate and establish the seat of justice of Black Hawk county. The act required them to locate the county-seat with reference to the best interests of the county. A controversy originated as to the rights of the commissioners to bind the county by contracts with the owners of the property. The court in discussing that question said: 'It is not necessary to deny that the commissioners might under the act, if they deemed it best for the county, make the location with reference to the proposed donation, but the act did not empower them to bind the county to the performance of any obligation whatever.' In the case of Newell v. Purdy, Wis. it was held 'that a vote given for a candidate for any public office in consideration of his promise in case of his election to donate a sum of money or other valuable thing to a third party, unless such a party be an individual or a county, will be rejected by the court Sir William Blackstone said: "If a physician or when called upon to declare judicially the result of surgeon gives his patient a potion or plaister to cure the election.' In that case the court drew the dis- him, which contrary to expectation kills him, this tinction between the election of public officers to is neither murder nor manslaughter but misadvenwhom for the time being the exercise of the func- ture, and he shall not be punished criminally, howtions of sovereignty is entrusted, and the mere choice ever liable he might formerly have been to a civil of a site for a public building. The former involves, action for neglect or ignorance. But it hath been or may involve, the integrity of the government, holden that if he be not a regular physician or surand the preservation of the principles upon which geon who administers the medicine, or performs the it is founded; while the latter is only a matter of operation, it is manslaughter at least. Yet Sir public convenience or pecuniary interest involving Matthew Hale very justly questions the law of this no fundamental principle whatever.' It is argued determination." 2 Bl. Com., Book 4, p. 197. that the distinction recognized by the court in that case was not necessary to the determination of the question involved, and the familiar rule that cases are only authority to the extent of point in judgment should apply. While this may be so, there is a manifest difference as to the effect of said influences in the sale and purchase of a public office, and that of an offer by the citizen to donate his grounds for a county-seat. The choice where the office is bought and sold, or made because of a price paid, is from a consideration that ought not to influence the voter, and besides would result in the selection of those in. competent to perform the duties of the office. The offer of ground for public buildings, or the public buildings themselves, may often be a matter of economy with the people, and whether in the particular case it has gone so far as to stifle the voice of public sentiment and to work an oppression on the people, must be determined by the facts. The offer itself is not sufficient to invalidate the result."

In 1809, Samuel Thompson, the father of the botanical or steam system of medicine, was indicted in the Supreme Court of Massachusetts for murder, and the court charged the jury "if one, assuming the character of a physician, through ignorance, administer medicine to his patient, with an honest intention and expectation of a cure, but which causes the death of the patient, he is not guilty of a felonious homicide." Commonwealth v. Thompson, 6 Mass. 134. Thompson was the man who had three favorite remedies, coffee, "well-my gristle," and "ram cats." In this case he gave the patient emetics until he died from them. This case was followed in 1844 in Rice v. State, 8 Mo. 561, an exactly similar case in all respects. But in an edition of the Massachusetts Reports in 1850, in a note to Commonwealth v. Thompson, the editor says: "if death ensue from the gross ignorance, carelessness, negligence or rashness of any one who undertakes to administer medicine without any intent to do harm,