physician's bill, and the defendant gave evidence tending to show that the plaintiff had mistaken his disease, and treated him for another disease; that the trial judge instructed the jury, that in itself this was an immaterial fact. Its value in the case, in connection with the consideration of skill and care, was stated in a subsequent part of the charge, and was not excepted to. The plaintiff in error claims the fact of such mistake to be both material and controlling in the case, but it can be so only upon the establishment of a proposition which I think has not before been asserted. Directly stated, it is that if after the exercise of due care and skill to discover the nature of his patient's disease, however obscure it may be, the physician errs in judgment, and determines inaccurately, and treats for the disease which appears to him to be that which afflicts his patient, a right to compensation never arises or is forfeited. The position, if correct, holds the physician to the duties and obligations of a guarantor in diagnosis. Ordinary skill and care will not suffice. Indeed the highest skill and diligence to which the best ever attain will not fill the measure of duty and requirement; but there must, in this branch of the science of medicine, be absolute certainty in its results, or no merit attaches to the services. No case asserts the doctrine that such an assumption is implied on his part in virtue of his professional employ ment. In legal theory it could only be so on the ground that an error in that branch of the medical art imports the absence of usual skill or care in every case. It cannot be maintained without direct hostility to the general rule, unless it be true that this branch of medicine is always capable of assured and exact determination in practice, and that the practitioner of customary skill cannot, with proper diligence, fail to distinguish the nature of each disease. There is nothing before us to show by admission or proof that such is the fact. We cannot on any ground known to us so conjecture. We are better justified in the inference that cases present themselves to the pathologist where the aid of the most consummate skill of the practitioner is required in determining the true cause to which to refer observed symptoms, with ground still left for possible error. There would seem to be no reason, and there is no authority, for holding that in the mistakes which the careful and skillful medical practitioner may make in judging upon the true interpretation of symptoms, there is to be found a more serviceable defense to a suit for compensation than can be found in mistakes and failures in the results of treatment. In all that pertains to the practice of the profession, the physician is subject to the one rule, and that rule was correctly stated in the instructions given to the jury on the trial. N. J. Ct. Err. & App., June Term, 1887. Ely v. Wilbur. Opinion by Knapp, J.; Paterson, J., dissenting.

SHIP AND SHIPPING-SALVAGE-SERVICES-BURNING VESSEL.-Where a tug provided with a steam pump for extinguishing fire is first to reach a burning vessel, and pumps water in the hold for five hours, and the fire is finally extinguished by flooding, the tug is entitled to salvage, although larger pumps and the city fire engines rendered greater service. Such prompt and willing service as this must not be discouraged by the courts in the harbor of Savannah or elsewhere. It must be encouraged. These tugs, rigged in this way for the purpose of extinguishing fire, are just as important to the shipping interent engines are to the city. They com saving losses to the people and

as do the fire engines, and it

1ng to encourage those

clear to my min

the fire

in

pump of the tug extinguished the fire, it contributed its full powers to that result. The fire was put out by no special skill on the part of the fire department, but simply by the volume of water pumped into the hold. Certainly the tug was pumping the water all the time. It was an obstinate, dangerous fire, and while the fire department might finally have extinguished it, had not the tug been there, by the great volume of water rapidly poured in, yet it is probable that it would have been extinguished after greater loss on the cargo and greater injury to the vessel. U. S. Dist. Ct., S. D. Ga., 1887. Gaynor v. The Gler. Opinion by Speer, J.

NEW BOOKS AND NEW EDITIONS.

THOMAS ON MORTGAGES.

A Treatise on the Law of Mortgages of Real Property in the State of New York, with reference to the decisions of the Federal Courts and of the courts of the various States, and an appendix of Forms. By Abner C. Thomas. Second edition, revised and enlarged. New York: Baker, Voorhis & Co., 1887. Pp. lxiv, 858.

This is a well considered and useful practical work, particularly designed for practitioners of our State, but illustrated and fortified by decisions of other jurisdictions. It seems to us to be remarkably well arranged and has the peculiar merit of conciseness. A table of cases covering fifty pages shows the research of the author and the extent and importance of the topic. The book is well printed.

By

PRICE AND STEWART'S TRADE-MARK CASES. American Trade-Mark Cases, decided by the courts of the United States, both State and Federal, and by the Commissioner of Patents, and reported between 1879 and 1887, with an Index Digest of the cases published. Benjamin Price and Arthur Stewart, of the Baltimore Bar. Baltimore, Cushings & Bailey, 1887. Pp. xvi, 1184. This timely and valuable work takes up the line where Mr. Rowland Cox left it in 1879, and is apparently a very complete collection. We should have been glad to see the English cases included, but this would have been impracticable in one volume. This department of law has been greatly developed in the last ten years, and is an extremely interesting one. Some of the cases in this volume are amusing, for example, one holding that "Yankee" is a valid trade-mark for shaving soap. In this the court is rather sarcastic upon Mr. Browne, and his opinion to the contrary, speaking of him as "A Mr. Browne," and observing that he "is not a court." We do not see but that his opinion may be just as good as Mr. Blodgett's, although Mr. Blodgett is a court, and we incline to think, better in this case, for Fenimore Cooper tells us that "Yankees" is nothing but a modification of "Yengeese," Indian for "English." We find some local amusement in the commissioner's decision that "Albany Beef" is not a valid trade-mark for canned sturgeon. A label of "Old Bachelor Smoking Tobacco," with a picture of an old bachelor" was held an infringment of a label of "Old Coon Smoking Tobacco," with a picture of a "coon," although the former also stated that it was "Not Old Coon." On the other hand "Rising Moon Stove Polish," with a picture of the moon, was held no infringement of "Rising Sun Stove Polish," with a picture of the sun. We should like to hear from Katherine and Petruchio, and Mr. Dana, and "The Argonaut on this point. We note one important omission, to-wit: The " Rye and Rock" case in our Court of Appeals, which is here given only in the court below. It ought to be reported with the famous brief of

of

ૐ

counsel, which we once commemorated. The volume is handsomely printed.

to Codification." That was prefixed to the paper (which was originally read before the Columbia Law School) by Mr. O. B. Potter for use before the Legislature. We thought the paper had a familiar sound, and believe that we ourselves once commented on it. Mr. Potter probably knew the habit of the legislators about reading arguments, and so very wisely put his case as strongly as he could in the title. We will at least give some of Mr. Chamberlain's concluding remarks, which are as follows: "First. There is no codifier or set of codifiers extant - and in the nature of things we can look for none hereafter who can better express legal ideas or legal rules than they are now expressed. Second. That putting the expression of our common law into a code, that is, a statute, is consigning it to the charge of that organ of government, which in theory and fact is least qualified to make or state intelligible, consistent or reasonable law. I marvel when men of sense, in view of an average modern Legislature a New York Legislature, for example-propose to submit to it what of our law has hitherto escaped its touch. Were our ills tenfold greater than Mr. Hall or the JOURNAL thinks them, codification on this consideration alone would be worse than folly. Mr. Editor, you have allowed Mr. Hall space to call upon me in terms 'to furnish from legal history a single illustration of the dogma,' i. e., the dictum of John Austin thrat 'as soon as a code is produced there is no longer a spontaneous development of law.' It would be unfair to hold you to the duty of admitting me to such a discussion in your columns. But I shall ask you to allow me here and now to accept the challenge and to name the Code Napoléon, the Code of Louisiana, the Prussian Code (Code Frédéric), and the Justinian Code, so called. I am not apt, for some very solid, practical reasons, to engage in academical or moot discussions, but I will say to Mr. Hall that if the persistency of our New York advocates of codification shall make necessary another defeat of their scheme the coming winter, I shall try to be ready to make good at the bar of reason what I now assert." We agree with Mr. Chamberlain that this is the better disposition of the question. Let him and the other arrogant New York city obstructionists continue to convince the Legislature that they were never intended, and certainly will never be fit to make the laws of the State, and the judges will continue to make and unmake it, to announce one day and forget the next, to doubt, to struggle, to wallow in that mire of unspeakable despond called the common law. "Spontaneous development of law"-"a vile phrase "paradoxical to absurdity. One might as well talk of a "deliberately intended accident." Law is not spontaneous, but fixed and certain, known beforehand. No "spontaneous law" for us! Law is not a Darwinian tadpole or monkey.

The New York State Bar Association offers its annual Post-Graduate Prize for the best essay, thesis

or argument on the following questions: "Should the State control the assignment and distribution of the property of insolvent debtors? And if so, in what manner, and to what extent?" The successful paper will be read at the next annual meeting of the Association, to be held in the Senate chamber January 21 and 22, 1888. It must be sent to George L. Stedman, Esq., Chairman of the Committee on Prizes, Albany, N. Y., on or before the 23d day of December, 1887, with the name and residence of the author. All members of the New York State bar in good standing, whether belonging to the Association or not, can compete for the prize.

It is a relief, in reading the prolix opinions in the House of Lords, to see the tedious "lean" of the typography occasionally broken up by a "fat" streak of poetry. Lord Fitzgerald, in his dissenting opinion in the recent case of Caird v. Sime, involving the question of copyright in university lectures, refreshingly drops into poetry. In answering the assertion that "the professor's thoughts as expressed that year must be the same as those to be similarly expressed the next year," observes: "This would seem to assimilate the professor's duty to the cuckoo cry of repetition. I rather think that this eminent professor would repudiate such a suggestion, and tell us that the lecturer should remember that

'Beneath this starry arch Naught resteth or is still,' and that his duty is to watch over and criticise new modes of thought, new works, the march of intellect, and those discoveries which

'Make old knowledge

Pale before the new.'

Even in pure mathematics there may be alterations and additions, and ethical science is not free from the inexorable law of mutability."

NOTES OF CASES.

'N Bacon v. Harris, Rhode Island Supreme Court,

drawn, indorsed or accepted for accommodation are subject to the general rule that one taking overdue negotiable notes takes them subject to all equities; and that a demand note is overdue for purposes of negotiation unless negotiated within a reasonable time. The court said: "The general rule is that he who takes a note after it is due takes it subject to all equities to which it was liable in the hands of him from whom he takes it. Two questions arise here therefore, namely: First. Is the general rule applicable to a note like the one in suit? And if so, second, was the note overdue when it passed from Southwick to Black? As to the first question, Daniel, in his book on Negotia ble Instruments, volume 1, section 726, says that in England it is held that the rule does not apply to bills and notes drawn, indorsed or accepted for ac

In

commodation, it being considered that parties to accommodation paper hold themselves out to the public to be bound to every person who shall take the same for value, the same as if it were paid to themselves, though Mr. Daniel also says the earlier authorities were otherwise. But see Parr v. Jewell, 16 C. B. 684. The English rule has not been followed in this country. In Chester v. Dorr, 41 N. Y. 279, the court decided that an accommodation indorser, without consideration, of a promissory note, is not liable to a transferee of the note after maturity, although such transferee paid a full consideration, for the reason that it cannot be supposed that such an indorser intends to give the note currency by the loan of his credit for a period longer than it is to run according to its terms. Bower v. Hastings, 36 Penn. St. 285, it was held to be a good defense to an action by an indorsee against the maker of a promissory note, that it was made for the accommodation of the payee, without consideration, and negotiated by him when overdue. The New York case and the Pennsylvania case were both carefully considered on both reason and authority, and are entitled to the more weight because New York and Pennsylvania are the leading commercial States in this country. See also Hoffman v. Foster, 43 Penn. St. 137. In Kellogg v. Buxton, 12 Allen, 527, the Supreme Judicial Court of Massachusetts decided in the same way, though apparently without special consideration or inquiry; and to same effect see Cummings v. Little, 45 Me. | 183, and Battle v. Weems, 44 Ala. 105. We know of no American case which directly applies the English rule, though there are American cases which refer to it as the rule. Of course it is highly important that the rule in this country should be uniform, and we therefore think that the rule laid in the great commercial States of New York and Pennsylvania, the same being in our opinion just and reasonable, should be, as it probably will be, adopted in the other States. We come to the second question: Whether the note was overdue when it passed from Southwick to Black. The rule in this country is that a note payable on demand is overdue for the purposes of negotiation unless it is negotiated within a reasonable time; and what constitutes such reasonableness of time cannot be determined by any fixed and exact rules, but must depend upon the circumstances of each case.. 1 Pars. Notes and Bills, 375-379; Herrick v. Woolverton, 41 N. Y. 581; Carll v. Brown, 2 Mich. 401. It has been said that where the note is given for a loan of money, or is payable with interest, it may be presumed that an immediate demand was not within the contemplation of either party, and that even after the lapse of months in some cases, the note may be considered as still not overdue. 1 Dan. Neg. Inst., §§ 607, 608. Whether what is reasonable time is a question of law for the court, or a question of fact for the jury, is a matter which has been a good deal controverted; but undoubtedly the better view is that it is a mixed question of law and fact, and that except where the facts

* * *

|

are few, simple and undisputed, in which case the court shall decide it, it should be left to be decided by the jury under the direction of the court, upon the particular circumstances of the case. 1 Dan. Neg. Inst., § 612; 1 Pars. Notes and Bills, 269; Wyman v. Adams, 12 Cush. 210, 214. We think the question of reasonable time in the case at bar is a question for the jury under instructions from the court."

The well known case of Ryder v. Wombwell, 16 W. R. 515; 3 Ex. 90, which was recognized for nearly twenty years as a leading authority as to the rule of evidence applicable in an action to recover the price of necessaries supplied to an infant, can be no longer considered law, in view of the decision of the Master of the Rolls and Lords Justices Lindley and Lopes in the recent case of Johnstone v. Marks, 35 W. R. 806. For although those learned judges were sitting only as a divisional court, Lord Esher expressly stated that he was prepared to pronounce the same decision if he were called upon to decide the question again in his appellate capacity. It will be remembered that in Ryder v. Wombwell the majority of the judges of the Court of Exchequer (Bramwell, B., dissenting) held that in an action against an infant to recover the price of necessaries supplied to him, evidence is inadmissible to show that the defendant was, at the time of the purchase from the plaintiff, amply supplied with goods of the same character. The case went to the Exchequer Chamber (17 W. R., 167; L. R., 4 Ex. 32), where the judgment of the Court of Exchequer was reversed on the ground that the burden of proof in such actions was on the plaintiff; and Willes, J., observed that it was unnecessary to determine the question of the admissibility of evidence as to the defendant being already supplied with similar goods. The decision of the Court of Exchequer on the latter point was accordingly followed by the courts until 1884, when the Queen's Bench Division, in Barnes v. Toye, 33 W. R. 15; 13 Q. B. Div. 410, declined to act upon it. Mr. Justice Field treated the question as having been left open by the Exchequer Chamber, and he pointed out that the decision of the majority of the Court of Exchequer was in conflict with earlier authorities. He held that the question whether the articles were necessaries, depended not merely upon the character of the goods but on the extent to which the infant was supplied with them. Johnstone v. Marks had been tried in the Westminster County Court, and involved precisely the same issue as Ryder v. Wombwell, and upon the authority of which case the judge had declined to receive any evidence as to the defendant being supplied with goods of the same description as those which had been supplied to him by the plaintiff, but the court reversed his decision. The Master of the Rolls described the real question in the case as being whether the goods were "necessaries in the legal sense," which they would not be if the infant was already sufficiently supplied with similar articles. He pointed out that

in Ryder v. Wombwell the Court of Exchequer Chamber had expressly left the present question open; and he was clearly of opinion that the decision of the Court of Exchequer was inconsistent with the earlier authorities, and that Barnes v. Toye had been rightly decided. The same view was taken not only by Lord Justice Ropes, who was one of the judges who decided Barnes v. Toye, but also by Lord Justice Lindley, who remarked that if Ryder v. Wombwell was law, there would be no protection for infants, since the question was not whether the articles were necessaries in themselves, but whether they were necessaries for the defendant; and therefore his possession of similar articles was a material issue. These decisions of three judges of the Court of Appeal will, no doubt, be sufficient, without any further appeal, to turn the scale of authority in favor of Barnes v. Toye as against Ryder v. Wombwell.- Solicitors' Journal.

In Matt v. Roman Catholic Mutual Protective Society, 70 Iowa, 455, a singular question was presented. A policy of life insurance was conditioned to be void if the assured should "neglect his Easter duties." The court said: "The rule in respect to Easter duties is said to have been prescribed by the Fourth Council of Lateran, held at Lateran, in Europe, 1215, in canon 21, reaffirmed by the Counsel of Trent 1545, canon 8. The rule, as shown in evidence, provides that 'every one of the faithful, of both sexes, after they come to the years of discretion shall, in private, faithfully confess all their sins at least once a year to their own pastor, and take care to fulfill, to the best of their power, the penance enjoined on them; receiving reverently, at least at Easter, the sacrament of the eucharist, unless perhaps by the counsel of their pastor, for some reasonable cause, they judge it proper to abstain for a time. Otherwise let them be excluded from the church while living, and when they die be deprived of Christian burial.' The court found, in substance, that the observance of this rule was incumbent upon the deceased as a condition of membership in the defendant society; that the deceased at Easter, in the year 1882, being the year previous to his death, violated the rule by neglecting to confess his sins as provided and receive the sacrament of the eucharist, and so had forfeited his rights in the society. The case, as it is presented to us, is a very peculiar one. The court below was asked to determine, as a fact, whether the deceased confessed all his sins at Easter in the year 1882, and to sustain the right of this defendant society to withhold from this widow and her children, in case the deceased failed to so confess, a pecuniary benefit fully paid for by him. We feel constrained to say that there appears to us to be something unseemly in mixing pecuniary rights with what should be looked upon as a purely religious duty. Possibly, notwithstanding this, the society has a right to stand upon its contract and ask the courts to sustain it according to its letter. But if this be so,

it is the duty of the courts to scrutinize with considerable care the evidence adduced in proof of the neglect. Courts do not take very kindly to forfeitures under any circumstances, and this ought to be especially so where the ground of forfeiture is an alleged neglect which affects injuriously in no way any pecuniary right, liability or risk of the party setting up the neglect. What then is the evidence that the deceased did not confess all his sins at Easter in the year 1882, and receive the sacrament of the eucharist! If he had made any confession at all, and received the sacrament of the eucharist, we presume that no question would be raised as to whether he confessed them all or not. Probably the society would not deem it proper to go into an inquiry as to the specific sins of the deceased, for the purpose of ascertaining whether any remained unconfessed or not. While we think that the defendant would be liberal in this respect, it seems to ask us to presume that the deceased had upon his conscience in Easter, 1882, unpardoned sins to confess, and that in the face of the elementary rule that the law never presumes a wrong. Of course it is not claimed that a court can, in a general way, hold that there is a legal presumption that a given person did, during a given time, commit sins. The defendant's position is not very well defined in this respect, but we understand it to be that the defendant contracted as a Catholic, and that the contract is to be construed with reference to such fact, and that we are to take judicial notice of every fact necessary for the proper construction of it as a Catholic contract. For the purpose of the opinion this may be conceded; but after holding all presumptions in favor of the defendant which it can properly claim, or does claim, we have to say that it is not denied, and cannot be, that the burden was upon the defendant to show that the deceased failed to make confession as required.” The court held that this was not shown. The court declined to decide whether the defendant waived the forfeiture by retaining subsequent assessments, or to consider the defendant's claim that it had no power to make such a contract.

AMELIORATION OF THE LAWS OF WAR REQUIRED BY MODERN CIVILIZATION.

MEMOIR PRESENTED TO THE INSTITUTE OF INTERNA-
TIONAL LAW, IN SESSION AT HEIDELBERG,
SEPTEMBER, 1887. BY DAVID
DUDLEY Field.

AN

N article of the Revue des Deux Mondes, written five years ago, by Vice-Admiral Aube, of the French Navy, lately Minister of Marine, contains this passage: The next naval war, especially against England, will be carried on by cruisers attacking her commerce;" and again, " The empire of the sea will belong to that nation of the two which has the more of attack and destruction will be emplowed against all numerous armored fleet," and further, "Every power of England's littoral towns, fortified or unfortified, whether purely peace establishments or warlike - to