weight of authority. The duty of care and of abstaining from injuring another is due to the weak, the sick, the infirm, equally with the healthy and strong; and when that duty is violated, the measure of damage is the injury inflicted, even though that injury might have been aggravated, or might not have happened at all, but for the peculiar physical condition of the person injured. Thus in one case a person afflicted with scrofulous disease was injured by the negligence of a municipal corporation in failing to keep its streets in repair, and suffered damage greatly in excess of what he would have suffered but for his disease; yet the court held that the corporation was bound to keep its streets in repair, for the sick and infirm as well as for the well, and held the city liable for the whole damage. Stewart v. Ripon, 38 Wis. 584. In another case a pregnant woman was injured, resulting in malformation of the child carried, and its subsequent delivery dead; and the author of the negligence was held liable for the whole damage. Shartle v. Minneapolis, 17 Minn. 308. So a railway was held liable for cancer following at an interval of three weeks after a blow on the breast of a female. Railroad Co. v. Kemp, 61 Md. 74. See also Railroad Co. v. Buck, 96 Ind. 346; Jucker v. Railroad Co., 52 Wis. 150; Delie v. Railroad Co., 51 id. 400; Sauter v. Railroad Co., 66 N. Y. 50; Beauchamp v. Mining Co., 50 Mich. 163; Barbee v. Reese, 60 Miss. 906; Patt. Ry. Law, §§ 29, 278; 2 Thomp. Neg. 1099. The inheritance of an hysterical diathesis (if it existed) was a misfortune, but certainly not a fault, in this child; and in no manner diminished her right to protection from injury by the fault of defendant. Prior to this accident she had never suffered from this latent constitutional taint. But for the accident she might never have suffered from it. The accident was the direct, immediate and efficient cause which set in motion all other causes which created or aggravated the damage; and the defendant is justly bound to answer for those deplorable consequences of his fault. La. Sup. Ct., July, 1888. Lapleine v. Morgan's L. & T. R. & S. S. Co. Opinion by Fenner, J. TWELFTH ANNUAL MEETING OF THE NEW THE HE twelfth annual meeting of the New York State Bar Association will take place at the Capitol, Albany, N. Y., Tuesday and Wednesday, January 15 and 16, 1889. Monday, January 14, 8 P. M.: Annual meeting of the Executive Committee at the rooms of the Association in the Capitol. Tuesday, January 15, 3:30 P. M.: Annual meeting of the Association in the Assembly 1. Prayer-Rev. John McClellan Holmes, D. D., 2. President's Address-Hon. Martin W. Cooke, of Rochester. 3. Annual Address-Hon. Thomas M. Cooley, of Washington, D. C., Chairman of the InterState Commerce Commission. 4. Appointment of Committee on Nominations. Tuesday, January 15, 8 P. M.: Annual banquet at the Delavan House. Wednesday, January 16, 10 A. M.: 4. Report of Executive Committee and Secre- 5. Report of Committee on Admissions. 7. Election of officers. 8. Report of committees. 10. Miscellaneous business and discussions on le- The following papers will be presented at this meeting: "Comparative View of Chief Judge Sanford E. Church and Judge Martin Grover, late of the Court of Appeals," by L. B. Proctor, Albany, N. Y.; "Legal Ethics," by Hon. Joseph Cox, of Cincinnati, Ohio.; 66 The Security of Railway Investments," by Daniel S. Remsen, of New York. Members are requested to call at the rooms of the Association, Capitol, and register their names. The Assembly Parlors will be open as reception rooms for the members and their friends on the 15th and 16th. THE ARTHUR L. ANDREWS, Albany, SIMON W. ROSENDALE, Albany, E. C. SPRAGUE, Buffalo. ROBERT T. TURNER, Elmira. IRVIN W. NEAR, Hornellsville, COURT OF APPEALS DECISIONS. HE following decisions were handed down Tuesday, Dec. 18, 1888: Judgment affirmed with costs-Mary Fitzgerald, administratrix, respondent, v. City of Binghamton, appellant. Judgment affirmed with costs-In re Personal Estate of Mrs. Elizabeth R. West. Appeal of Mrs. Mary R. Jones, a sister, from the affirmance of the order of the Oneida county surrogate, removing her from the joint administration with the husband of the deceased.--Dismissed with costs, on the ground that such allowance was discretionary-In re Accounting of Mrs. Mary R. Jones, administratrix. Appeal by co-administrator in above case from the affirmance of the Oneida county surrogate allowing her fees. Judgment affirmed-People, respondent, v. Andrew Weldon, appellant.Order of Special and General Terms awarding costs to defendant reversed with costs of both appeals to appellant-John B. Hopkins, Jr., appellant, v. Franklin J. Lott, administrator, respondent. -Appeal of Daniel D. Lord and others from order confirming report of commissioners dismissed with costs-In re Application of Mayor, etc., to acquire land in the Twenty-second ward of New York city.-Motion by plaintiffs for reargument denied with costs-Julia Friend v. Mayor, etc., of New York, and Valentine Diefenthoten v. Same.-Motion by relators to amend remittitur denied with costs on the ground that the relator can procure transmission of a duly authenticated copy of the opinion with the record for use in the United States Supreme Court -People, ex rel. Carl Schurz and others, v. Frederick Cook, secretary of state. - -Motion to advance granted with costs-Henry C. Adams, appellant, v. Richard Morrison and others.-Motion to advance granted, THERE NOTES. HERE is an inquiry in the Tribune by an anxious father as to "what should be done to a boy's ears that stick out from his head." Some remedies have been suggested. We regard the thing as incurable. We don't know that the South Carolina lawyers' "punch à l'Ananias" is any worse than the "crabes à diable," at the dinner of the New York MedicoLegal Society. Mr. Benj. H. Austin, Jr., in his brief in Austin v. Munro, 47 N. Y. 360, observed: "Imagine a counsel, engaged in the midst of an important argument, to be suddenly cut short by the death of one of his clients. Immediately the executors of the one dead are substituted, and after a brief delay the counsel resumes his argument before the same tribunal and completes it, and the controversy is finally ended, and the counsel presents his bill, which would read somewhat in this wise: 1. The estate of dr. to To services in making half an argument before the court on the day of —, aud executors of dr., to, To services in making last half an argument, the first half of which was made on such a day. And then would arise the nice question, in each of the two actious brought for services, just how much was due, and how much the first half was worth, how much the last half. Where lay the weightiest words. At which point the counsel was the most happy, the subtlest, the most profound." We know when the court would have been the happiest-on the last day. In his brief in Pindar v. Resolute F. Ins. Co., 47 N. Y. 114, Mr. Homer A. Nelson repeatedly calls the defendant "Mr. Resoute." It is a wonder the company did not curl up and die under that sarcasm. Mr. T. C. Cronin, in his brief in Field v. Munson, 47 N. Y. 221, observes: "The defendant may say with force: 'There is a devilish mercy in the judge, If you'll implore it, that will free your life, "The error was an extraordinary one for an IMPAR TIAL REFEREE TO COMMIT.” Mr. Ira D. Warren, in his brief in Palmer v. De Witt. 47 N. Y. 532, says: We cannot feel our way down through the dim light of a century by a balustrade of old, ill-defined cases. He evidently does not believe in the doctrine of stare decisis. "It is certainly a piti. able spectacle exhibited to the world of letters, that this great republic cannot boast of a solitary American dramatist at the moment living, whose compositions are acknowledged as belonging to the standard acting drama. Our laurels in the dramatic world are confessed to have withered upon the brow of the unfortunate John Howard Payne. * And what chance is there that an imitator of this one man can be tempted to arise, when our most popular theatres vie with each other in an indecorous scrample to secure the filterings of the London stage, and * * * ** drivellings from such braius as those of T. W. Robert sou, Tom Taylor, Boucicault, and such like dramatic mechanics, whom the degeneracy of the modern stage has suffered to be regarded as worthy successors to Sheridan, Colman or even Jerrold?" Mr. F. T. Uttley's Law and Professional Notes are unavoidably held over with the exception of the fol lowing paragraph: Two noble lords are reported to have recently set up as barristers in the Temple, and an interesting etiquette question arises as to how the judges are to address them if they plead. It would be awkward for judge and counsel to be mutually referring to each other as "My Lord." When the archbishop of York had once to appear before the lord chief justice he was always referred to as the "Archbishop of York," and not as "Your Grace."-Law Journal. How would "Good Lord!" do? DE MINIMIS. The clergy gather pence, halfpence, With trifles small one's soul to vex: But if there is a hair to split, You wish a contract or a will, As men beat out a grain of gold, Or make it miles of wire unrolled, So law treats points-the merest specks: If youth the lawyer trade will choose, And after years of idleness- The law could so her children vex? And if he finds it hard to live, A millionaire of female sex: If vested interests are small, De minimis non curat lex. Thus every thing now goes by size- The sheep and pigs that take a prize- -Journal of Jurisprudence. The Albany Law Journal. ALBANY, DECEMBER 29, 1888. CURRENT TOPICS. JUDGE small, methodical, exacting and dogmatic charac- ciation of New York, undeterred by the braying of Meanwhile the State Bar Asso But we agree with his proposal to limit appeals from certain orders, and to authorize the appellate courts to deny a new trial where they are satisfied that substantial justice has been done, as is now the rule in equity. The writer says further: "The trial courts ought to have greater power and more discretion. At present every judge upon a trial before a jury feels that he also will be tried a little later, and he is scarcely as anxious to do right as It is to be feared that the Albany Times has been he is to keep within all the real and technical rules taking counsel of Justice Rusbottom about imitaof law governing his action and the subject of tion butter. As we recollect, the Times recently ancritical review. Why ought not a circuit judge to nounced to its readers that any one of them was liahave the right to limit in his discretion the exami-ble to a penalty for having in his house any imitanation and cross-examination of witnesses, an abuse tion butter, although ignorant of its possession. of such discretion being a proper subject of review? We are not aware that our Legislature has been Why may he not limit the number of witnesses to guilty of enacting such an unconstitutional provisbe called on a given point absolutely? Why ion as that. Perhaps our neighbor has an unexshould he not certify at the close of the trial the purgated edition of the laws from which it can questions proper to be reviewed upon appeal? correct us if we are wrong. The answer will at once be made that the judge might exercise such power arbitrarily and unjustly. True he might, but the cases in which he would do so would be rare, and the injustice arising from such rare cases would be vastly inferior to that which grows out of unlimited exceptions, combed out of a reporter's minutes in respect to evidence having little or nothing to do with the verdict of the jury." We supposed the trial judge now had the power to limit the examination and cross-examination and the number of cumulative witnesses. "We have known it done." He certainly ought to have it, subject to review only for manifest abuse. As to his right to restrict the subjects of review, he is not the best judge, and ought not to have that power. It is one of the penalties of greatness that it is subject to such attacks as the following from the Chicago News- whatever that is: "If Judge Cooley were not of the masculine gender he would undoubtedly be a New England schoolmarm of the confirmed or tertiary stage. As it is, he has all the VOL. 38-No. 26. Indiana also is getting in arrear with her judicial work. Judge Elliott gives his views as to the remedy as follows: "I am convinced that the permanent and true method is to increase the number of judges and to change the mode of procedure. An increase in the number of judges will of itself effect little good, since it will greatly augment the time devoted to consultation. My conclusion in brief is this: So amend the Constitution as to increase the number of judges, create the office of chief justice, make it continue for the full term, require the court to sit in sections and at different times, these sections to be composed of three judges and the chief justice; in the event of a disagreement refer the cause to the full bench, or in the event that the questions are unusually difficult and important require that this course be pursued. But it will take time to secure this amendment, and there should be immediate action. The scheme of an intermediate appellate court bristles with difficulties. If the jurisdiction is not made exclusive it will not cut off appeals to the Supreme Court, and at last all cases will find their way to that court. If the amount is to be the standard then the objection will be made that the importance of the questions is not measured by the amount in controversy, and that a poor man, to whom a small amount is a great deal, has as much right to have his case decided by the highest court in the State as the rich one. Then too perplexing questions occupying much time concerning jurisdictions will constantly arise, as they have done in other States." The judge also suggests allowing each judge a clerk. This is a good suggestion, and we believe our Court of Appeals judges have clerks and short-hand writers. The savants are having a bonnie time investigating the best way to take off criminals by electricity. Fortunately they have a good year before the actual test will be demanded. Why did they not try the experiment on that mischievous elephant a few days ago? The danger seems to be that the application will be made too cumbrous, and that the preparations will be more appalling to the doomed man than the simple noose. It is reassuring however to learn that the Medico-Legal Society of New York do not approve of immersing the body in water, nor of placing large metal plates upon the body. But shampooing and hair-cutting seem to be recommended -"the skin and hair at the points of contact should be thoroughly wet with a warm aqueous solution of common salt. The hair should be cut short." The latter will be as objectionable to women as it is to female victims of the guillotine. When we read that two hundred have accidentally lost their lives by artificial electricity within a few years, we have confidence that the wise men will find a way out. If they can't, the convict might be apprenticed to an electrical lighting company, and his sin would be sure to find him out sometime. Our greatest favorites among our exchanges are the Independent and the Nation. Not that we entirely agree with the religion of the former or at all with the politics of the latter. But we esteem the former for its morals and the latter for its literature. The Independent also has good literature and the Nation's morals are unimpeachable. The former is devoid of narrow sectarianism and is an excellent example of a religious journal which is not goody-goody. Its legal notions are generally to be commended, for they show faithful reading of our own columns. We congratulate it on its having attained forty years of age. The literary part of the Nation is unequalled for learning and generally for sound judgment. We cannot say as much for its legal notions, for they are not so much derived from us as those of the Post used to be. NOTES OF CASES. N Haws v. St. Paul Fire and Marine Ins. Co., case. a policy on plaintiff's barn and its contents provided for plaintiff's horses in the classification of the insured propery, and covered loss by lightning. It also provided that the company should not be liable for the loss of any property while removed from the barn, unless otherwise specified in the policy. Held, that horses killed while in a field at pasture were not covered by the policy. The court said: "We cannot adopt the plaintiff's view of his The manifest and obvious purpose of the parties, we think, was to place the insurance on the barn and its contents, as specified in the policy. In Haws v. Association, 114 Penn. St. 431, which is much relied upon by the plaintiff in error, there was no such clause in the policy as quoted above, and the insurance was upon horses alone. The horses, it is true, were described as 'contained in his new two-story frame barn,' etc., but this was held to be mere matter of description, and that such a description did not constitute a condition which would relieve the company from obligation the moment the horse left the barn. This case is also readily distinguished from Insurance Co. v. Haws, 11 Atl. Rep. 107, where the insurance was also on horses only, and it was provided as follows: 'This policy shall be void and of no effect if the property insured be moved to any other building or location from that described herein.' In both of these cases the opinion of the court proceeds upon the ground that as the insurance was upon horses alone, and the contract was inserted into a printed form designed for the insurance of a different class of property, it could not have been in contemplation of the parties that the animals were insured only when the animals were inside the barn. In this case however the restrictive clause is not a mere matter of description. It is a plain, direct provision, applicable alike to all the personal property embraced in the policy, and consistent with the obvious general purpose of the parties to insure the barn and its contents. It may be that such a provision interferes with the ordinary use of the property, but the same may be said of the bug. gies, sleighs, wagons, harness, whips, robes, blankets, bells, farmer's tools, and utensils of every description,' which do not appear to have been kept in store, but for the ordinary and common use of the owner. For any thing that appears, the in surer, on the one hand, may have relied upon the location or structure, or upon the appliances attached to the building as a protection from lightning, and estimated his risk accordingly; or the owner, on the other hand, knowing the fact that barns are, for some reason not well understood, more liable to injury from lightning than other buildings, and that the risks from this cause attaches as well to the contents as to the building itself, contemplated an indemnity only as against this extraordinary risk. However this may be, in view of the explicit and plain language of the pol icy we are constrained to hold that the restriction applies to the horses as well as to the other property embraced in the policy." Paxson, J., dissent ing, said: "The policy was in the usual form, with a clause that the policy should not cover any of the property while removed from the barn. This was all well enough for the inanimate property in the barn. But the lightning clause was intended for the horses. No one insures hay, grain and farming implements from lightning. I concede the clause against removal technically covers the horses, but I still think that as to the horses insured against lightning it was never intended to apply, and was not and could not have been in the contemplation of the parties at the time of the making of the contract, assuming them to have been reasonable beings capable of making a contract." Green and Williams, JJ., concur in the dissent. In Davidson v. Fischer, Colorado Supreme Court, November 16, 1888, it was held that where defendant leased to plaintiff a building with defective walls, plaintiff having full opportunity to observe and ascertain its ruinous condition, which was apparent to the most casual observer, in the absence of an express warranty, or of fraud or misrepresentations, defendant is not liable for damages resulting to plaintiff from the fall of the walls. The court said: "In the lease of a store, dwelling or other building, there is no implied warranty that the building is safe, suitable for habitation, or properly adapted to the uses to which it is applied, nor that it shall continue fit for the purposes for which it is demised. This principle and the reasons for the existence of the rule are so well settled that it is useless to discuss the same. Vide Dutton v. Gerrish, 9 Cush. 89; Mullen v. Rainear, 45 N. J. Law, 520; O'Brien v. Capwell, 59 Barb. 497; Doupe v. Genin, 45 N. Y. 119; S. C., 6 Am. Rep. 47; Bowe v. Hunking, 135 Mass. 380; S. C., 46 Am. Rep. 471; Libbey v. Tolford, 48 Me. 316. The courts in the administration of justice have recognized some exceptions to this well-known rule, and exceptions not based on deceit or misrepresentations, but purely on the doctrine of doing or omitting to do an act in violation of a legal duty or obligation. Thus Minor v. Sharon, 112 Mass. 477; S. C., 17 Am. Rep. 122; and Cesar v. Karutz, 60 N. Y. 229; S. C., 19 Am. Rep. 164, were both cases in which apartments were let infected with small-pox. In the first case the jury found that the lessor concealed his knowledge that the tenement was so infected so as to induce the lessee to hire and occupy it. In the latter case it does not appear that there was any intentional concealment, and the decision rests upon the failure of the defendant to disclose the fact that the tenement was so infected. Says the court in the case of Bowe v. Hunking, 135 Mass. 380; S. C., 46 Am. Rep. 471: When a house is infected with small-pox the danger to life is from a cause that cannot be discovered by the tenant from any examination he may make. It is obvious that there may be other concealed sources of mischief about the house which no examination can discover. Spring-guns might be set in it; traps or other contrivances might exist, which would injure the most careful occupant. If the landlord knew of such it might be held to be his duty to give such information to the tenant. Such traps or contrivances are not merely a want of repair; they are in a sense active agents of mischief, which no tenant would expect to find, even in a decayed and ruinous tenement.' It is not settled how far the exception to this general rule may extend, and we do not feel called upon in this opinion to define its limits, for the case at bar does not fall within the exception. The ruinous condition of the wall in this case was not a latent defect, one of which it was the legal duty of the lessor to apprise the lessee, for from the evidence it was patent to the most casual observer. The cellar at the time of the letting was so filled with water as to be unfit for use, and the walls of the building were literally crumbling away. * Buildings of every description are let in all kinds of conditions, and the law exempts landlords from liability from injuries caused by defects and where there is no fraud, misrepresentation or in such buildings in the absence of any warranty, deceit. When the tenant is permitted to examine fully the condition of the tenement sought to be leased, and any defects existing therein are patent, then the rule caveat emptor applies." See note, 46 Am. Rep. 474; Coke v. Gutkese, 80 Ky. 598; S. C., 46 Am. Rep. 490. ** * INDEMNITOR, HOW FAR BOUND BY JUDGMENT AGAINST THIRD PERSON. WHERE by virtue of an express contract or upon principles of justice a person is bound to indemnify another against loss or liability a judgment obtained against the party indemnified is prima facie evidence against the indemnitor although he is not a party to the suit and has no notice thereof, provided of course there is no fraud or collusion. Lee v. Clark. 1 Hill, 56; Bridgeport F. & M. Ins. Co. v. Wilson, 34 N. Y. 275; Taylor v. Barnes, 67 id. 430; Thomas v. Hubbell, 15 id. 405; S. C., 69 Am. Dec. 619; Bartlett v. Campbell, 1 Wend. 50; Stevens v. Shafer, 48 Wis. 54; S. C., 33 Am. Rep. 793; Cox v. Thomas' Administrators, 9 Gratt. 324; Paul v. Whitman, 3 Watts. & S. 407, 409; Chipman v. Fandro, 16 Ark. 291; Chipman v. Simmons, id. 295; 1 Suth. Dam. 135. There are however authorities which hold that in the absence of notice the judgment is no evidence whatever. DeGreiff v. Wilson, 30 N. J. Eq. 435; Lewis v. Knox, 2 Bibb, 453; Johnson v. Thompson, 4 id. 294; Beall v. Beck, 3 Har. & McH. 242; Peabody v. Phelps, 9 Cal. 210; Sampson v. Ohleyer, 22 id. 208; Sick v. Woodruff, 15 Ill. 15; Prewit v. Kenton, 3 Bibb, 280; Salle v. Light's Executors, 4 Ala. 700; S. C., 39 Am. Dec. 317; Pickett's Executors v. Ford, 4 How. (Miss.) 246; Stevens v. Jack, 3 Yerg. 402; Jacob v. Pierce, 2 Rawle, 204; Smith v. Moore, 7 S. C. 209; S. C., 24 Am. Rep. 479. In this last case it was held that a judgment against the vendor of chattels for the breach of an implied warranty of soundness, is not evidence of an alleged breach of a similar warranty in an action brought by such vendor against his vendor although the first vendor had notice of the action against his vendee, the second vendor. This decision is doubtless sound, for the judgment against the second vendor simply decided that the goods were unsound when he sold them, and this would not establish the fact which must be |