but it must be only in exceptional instances that mud or any thing except a sudden wash renders highways absolutely impassable. It is usually held to be the duty of the traveller to remove brush or other slight obstructions to his passage along a public road, when he can do so with little trouble or delay, rather than go upon the premises of the adjacent owner. The law provides generally, as far as it is practicable, for the uninterrupted use by wagons and carriages of that portion of the highway intended as a pass-way for them, but it is the duty of the owner of such vehicles to beware, in the exercise of their own rights, not to infringe upon those of other citizens, just as the same limit is fixed by the law to the enjoyment of their own exclusive property. N. C. Sup. Ct., Dec. 8, 1891. State v. Brown. Opinion by Avery, J. CORRESPONDENCE. CORRECTION from Dr. BIGELOW. Editor of the Albany Law Journal: Will you kindly say that circumstances prevented me from seeing the proofs of my address, printed in last week's JOURNAL, and that one or two mistakes in consequence crept into the print. The only one of serious importance is the insertion, as part of the text, of a foot note of the recent action of the French Senate touching the clergy, near the end of the address. If that be omitted, the connection between what precedes the paragraph and what follows it will be clear, where all is hazy now. BOSTON, Feb. 1, 1892. MELVILLE M. BIGELOW. A circle may be written within a hook; see civil, distress, suffer. When the r-hook is prefixed to m or n, the stem is shaded; see glimmer, trainer, line 2. R and I are called initial hooks; the ƒ aud n hooks, which occur at the end of letters, are called final. Fis attached to straight stems only, and is written on the circle side, as in puff, line 4. This hook is used for v also, as in above. The u-hook is put on the opposite side of straight letters, and is also attached to curves. See lines 4 and 5. A circle written on the n-hook side of a straight letter at the end of words, implies n; for example, pines, chance (but not density), line 6. All these hooks should be small and light. Exercise.-Black blame claim close globe pledge total gray grow break pray dray loiter pry trail cry drill keeper phrase favor Friday through strike stray spree sample cough crave bluff grove strive grieve pain stain bean bone dine twine taken turn bench lone mine fine abstain expense distance. Sentences.-1. Every rose has its prickles. 2. Every path has its puddle. 3. Variety is the very spice of life. 4. For the upright there are no laws. 5. All cruelty springs from weakness. 6. Wise judges are we of each other. KEY TO PLATE 9. 1 Play able evil civil fleeces shelf devil Majel. 2 Price breezes trump catcher glimmer trainer exaggerate distress. 3 Spry sober suffer over thrice pressure measure cigarette. 4 Puff spine above brain stiff strain cuff clown. 5 Flown thine assign ozone shine hen explain sustain. 6 Pines chance density lonesome extensive behavior reference sister. Translate lines 7 to 15. PLATE 9. MA THE NINTH LESSON. ARKS of punctuation are used only to a limited extent in actual reporting. The semi-colon is usually indicated by a space of an inch or more; the period by a cross. When notes are taken at verbatim speed little opportunity is allowed for punctuating, the only practical method being to leave spaces to correspond with the speaker's pauses, and insert the proper marks afterward when transcribing. Numbers are expressed in the usual manner, that is, by the Arabic numerals, 1, 2, 3, 4, etc. There is no pressing need for any different method of expressing numbers, since the present method is as short as short-hand itself. This is shown by the fact that a column of figures can be written as fast as the numbers are called off. The reporter, when pressed, writes larger than at other times. Some persons take this as evidence that a large hand is the most rapid. It proves just the contrary. The really skillful stenographer, when writing at high speed, is not flurried, and writes about as small a hand as usual. There can be no question but that the greatest speed will be attained ultimately, only by writing the characters near each other, cultivating a neat style, and writing as small a hand as practicable. A good, fine-pointed, short-nibbed gold pen of medium size is the best for reporting purposes. It should be more or less elastic, depending on the writer's lightness of touch. Good writing fluid is preferable to ink. A small hook at the beginning and on the circle side of a stem, indicates that l is to be added. For exam ple, play, evil, line 1. A hook on the opposite side in- The Albany Law Journal. ALBANY, FEBRUARY 20, 1892. CURRENT TOPICS. HE Law Quarterly Review for January has a accomplished ed case severely says, are not to be 'encouraged.'" In regard to dishorning cattle the reviewer says: "When Sydney Smith once confessed a desire to roast a Quaker, a solemn gentleman present, horrified at such a sentiment, exclaimed, 'But have you considered the pain, sir?"" This question of dishorning is making a great "rumpus " in the British courts. In regard to the suit by the infant, en ventre sa mere at the time in question, for a personal inGreat North. Ry. Co. of Ireland, 28 L. R., Ir. Q. B. jury by the negligence of a railway carrier (Walker v. 69), we are glad to see that the reviewer thinks, with us, that the action ought to have been sustained. According to Buller, J., an unborn infant or "noncludes with an appeal to his "learned and literary entity" is a very able person. The reviewer con itor, Sir Frederick Pollock, making him a surprisingly young-looking man. The number is in every way valuable. The "notes" of recent cases are exceedingly scholarly and lively. In regard to Commissioners, etc., v. Pemsel, '91, A. C. 531, the Review says: "No part of the English law is so unsatisfactory as that portion which consists of loosely-drawn statutory enactments interpreted by judicial sub-correspondents beyond seas" to cease to suffer his tlety. A vague consciousness of this fact accounts name to be misspelled "Quaterly." Let them think for much of the opposition entertained by sensible of a quart early, and they will almost have it. lawyers to large proposals for codifying the common "Conveyancing under the Ptolemies" is a very law." But why any more "unsatisfactory" than the readable article on recent Egyptian "finds." same "subtlety" applied to the fluid common law? The editor says: Every good man could wish,' as the late Serjeant Arabin said, that so learned and accomplished a judge as Lord Watson had not revived the abuse of the word 'collaborateur' in this connexion. Thus used, it is neither good French, nor any sort of English, and we have too much respect for good Scots to believe, even on Lord Watson's authority, that Scots will allow it." And "every good man could wish," we think, that so learned and elegant a writer as Sir Frederick would not use such a vile phrase as "in this connexion," and above all would not spell the last word with an x. The reviewer justly censures a head-note which simply says: "The decision of the Court of Appeal upon the construction of a will and codicils, affirmed," observing, "Well, it is a short head-note for once." Of Derry v. Peck, 14 App. Cas. 337, he says: "Like the genie in the 'Arabian Nights' that issued from the casket, it seems growing till it threatens to overspread the whole legal horizon." "A summons in chambers for leave of the court to pay addresses to a lady ward," says the reviewer, "is not the most romantic commencement of courtship. Miss Lydia Languish would undoubtedly have objected to it strongly, and to any one coming so recommended." But in Bolton v. Bolton, '91, 3 Ch. 270, such a "courting order " was issued. "Mr. Justice Maule was such a master of that figure of rhetoric known as irony that Jessel, M. R., may well have doubted whether the naive interrogatory How does the mother of an illegitimate child differ from a stranger?' (Re Lloyd, 3 M. & G. 547) was to be taken seriously. * * * In Scotland Mr. Legality, to use Bunyan's language, is still abroad, notwithstanding the high illegitimate birth-rate there (perhaps because of it) and a mother cannot get damages against a railway company for causing the death of her illegitimate child (Clarke v. Cartin Coal Co., '91, A. C. 420), because there is no obligation on the part of such child to 'aliment' its mother. Such unlawful productions,' as an old VOL. 45 No. 8. The usual annual hearing before the Senate judiciary committee was had upon the Code of Evidence during the past week. Hon. James C. Carter appeared in opposition to the provisions of the Code and made an argument against its adoption. Charles D. Baker, who was secretary of the commission which compiled the Code of Evidence and has taken a warm interest in it, in the absence of David Dudley Field, whose health is such as to render it impossible for him to attend at the present session, made the argument in favor of the Code. J. Newton Fiero, president of the State Bar Association, appeared for the purpose of stating that the Bar Association of the State had for a number of years passed resolutions favoring the Code of Evidence, and had this year again passed a similar resolution, and requested him as president of the association to present the views of the association to the commitHe made no argument. tee. A hearing has been had before the Assembly judiciary committee npon the amendment to the Constitution striking out the clause allowing pensions to judges who have served more than ten years. The resolution was introduced by Assemblyman Laing who appeared in favor of it. A general discussion was had, during which the suggestion was made, that the resolution should be amended so as to provide that it should in no wise affect the right of judges now in office to receive the salary after seventy years of age, to which they would be entitled under the present provision of the Constitution. This seemed to meet the approval of the committee. Another suggestion was made to the effect that in case pensions are continued, the Constitution should be so amended as to provide that the governor might call upon any one of the judges over seventy to render such service only to Circuit or Special Term, or sitting as referee, as might be desirable. The committee have not yet reported with reference to the bill. The Bar Association bill to improve the method of reporting, fully described in the report of the committee on law reform published in full in the LAW JOURNAL last week, has been introduced in the Senate by Senator Roesch, chairman of the judiciary committee. In the last number of the American Law Review, Judge Clark, the sole survivor of the Georgia codifiers, gave an interesting account of the Code of that State, enacted in 1860, which put into statutory form the unwritten laws of the State as declared by its Supreme Court. He says: "A code of laws must be founded on the developments of time, and no State or nation is prepared for a code of laws until it has gradually enacted a series of laws from which, by harmonious amendments and alterations, a wise system may be formed." On this The Nation remarks: "Though Judge Clark asserts that during the twenty-seven years of trial the Code of Georgia has been found adequate to every emergency, it may be doubted whether it has been a benefit to the jurisprudence of the State. There are others besides the late Robert Toombs who have doubted its wisdom. The Code enacted into law the decisions of the State Supreme Court. That court was not organized until 1845. It was unhampered by binding precedents, and consciously adopted a policy at war with the arbitrary and technical principles which characterized the early common law. There can be no doubt that this court, if care had been continually exercised in the selection of its judges, would in fifty years have gradually moulded a much more admirable system of laws than that struck off at a heat by the three codifiers of 1860." It is quite possible that the writer is correct, nevertheless it is apparent that Georgia did wisely in recognizing the superiority of written laws, and beginning early on that theory, No argument in favor of delay can apply to this State. We have had a century of judge-made law, and now it is time to set down authoritatively, definitely and concisely the laws thus declared. It would have been better for us to have done so half a century ago, even if we had by this time outgrown that Code and now needed a new one. cases. ence in distance passed over does not distinguish the If a walk of half a mile does not make a person a traveller, it cannot be held as matter of law that he becomes one by extending his walk to a mile and an eighth. The fact that the plaintiff rode part of the way on his return is immaterial, even if riding is more travelling or more unlawful than walking. He started from his home to walk. He was walking when he was injured, and the fact that he rode part of the way on his return, even if this were unlawful, could not affect the character in which he was using the highway at the time he was injured. Davidson v. Portland, 69 Me. 116. The only other ground for distinguishing the cases is that in Hamilton v. Boston the purpose of the plaintiff in walking was merely for recreation; in this case there was also the purpose of making a social call. Neither act is prohibited by law, if that is material. It is not unlawful under the statute, or as against public policy, to pay friendly visits or to indulge in the recreation of walking on the Lord's day. It is unlawful to travel for the purpose of doing either, but it is not the purpose but the fact of travelling for the purpose that renders the act unlawful. Upon no principle can the same walk be held to be travelling if for the purpose of making a friendly call, and not travelling if for the purpose of air and exercise." The court approved O'Connell v. Lewiston, 65 Me. 34, and seems to be crawling away from the spirit of the decisions of some twenty years ago in respect to the wicked shoemaker who was sent to prison for hoeing a few hills of corn in his yard early Sunday morning, and the sacrilegious farmer who suffered in like manner because he gathered some seaweed on a lonely beach late Sunday night. But there is a dangerous dictum in the opinion above. Is riding The puritanic spirit in respect to Sunday observ-formity to the facts, the character, career and busiance is still absurdly rife in Massachusetts, where the Supreme Court has just found it necessary to decide (Barker v. City of Worcester), that one who walks a little over a mile on Sunday, partly for exercise and partly to make a social call, is not a "traveller," punishable by fine, and may recover for personal injuries caused by a defective streetcrossing. The court was not unanimous, it seems. The majority opinion is just a little satirical, apparently. W. Allen, J., observes: "It was held in Hamilton v. Boston, 14 Allen, 475, upon full consideration, that walking half a mile in the streets of Boston for air and exercise was not travelling within the meaning of the statute. We cannot distinguish the case at bar from that case. The differ ness facilities, etc., of the subjects. The biographies will be written by L. B. PROCTOR, whose Annals of the Bench and the Bar of the State of New York, and whose published works as a legal historian and biographer have so long and favorably commended him to the profession and the public. We take pleasure in calling attention of our readers to the biography of the Hon. HAMILTON HARRIS, one of the leaders of the ALBANY BAR, which will be found in our Biographical Department of this issue of the LAW JOURNAL. A wise man learns something new every day, and to-day we, although not wise, rejoice to have learned that by the prevailing English statute of treasons (of Edw. 3d) it is treason "if a man violates the wife of the king's eldest son." We dare say that the verb is not there used in the sense of ravish, and that the woman's consent would not mitigate the offense. At least the apparent reason of the statute would imply this. A NOTES OF CASES. amed, and that tnhe latter is not left to his remedy of making a motion to compel the plaintiff to separate the causes of action, and to separately number them." In Pounder v. North-Eastern R. Co., 45 L. T. Rep. (N. S.), Q. B. Div. 679, the plaintiff had been engaged as a bailiff in the eviction of miners, and in consequence had become very unpopular. He and two other bailiffs had taken railway tickets as passengers, but while on the platform they were recogVERY interesting practice case was decided nized by a number of miners who were going as by the General Term of the Fifth Department, passengers by the same train. These miners threatin October, in Lanning v. Galusha. The plaintiff, a ened the plaintiff, who took refuge in the guard's garden farmer near Rochester, sued the defendants for van, but was removed therefrom by the company's an injunction restraining them from operating a rail- servants and put in a carriage with other passenroad in a highway, alleging a public nuisance by gers. Several miners rushed into this carriage obstruction of the highway, with special damage where the plaintiff was, thereby overcrowding the to plaintiff. In the same complaint, without being carriage, and when the train started they assaulted separately numbered, were allegations of personal the plaintiff. These assaults were repeated by other injury to the plaintiff, while travelling on the high- miners on the journey, the plaintiff complaining to way, by the fright and running away of his horse the guard. In an action against the railway comin consequence of the defendant's negligent man- pany on the ground that the company had been agement of a locomotive on the railway. The de- guilty of negligence in allowing the carriage to be fendant demurred on account of improper joinder overcrowded, and in not removing the miners, held, of causes of action. The court, by Macomber, J., that the plaintiff was not entitled to recover. said: "It appears to us that in this respect there Smith, J., said: "Ordinarily it is the duty of a carhas been a misjoinder of causes of action, namely, rier of passengers, arising out of the contract of carone for the relief from a nuisance where the plain- riage, to carry the passenger upon the contracted tiff has suffered special damages by reason of the journey with due care and diligence, and to afford continued unlawful use of the highways; and the him reasonable accommodation in that behalf. If other a cause of action which rests upon allegations the carrier omits to perform either of these duties only of negligence in the operation of a particular he is responsible for the ordinary consequences aristrain at a given time, to the damage of the plaintiff ing to the ordinary passenger therefrom. There is when he was without fault. Subdivision 9 of section 484 of the Code of Civil Procedure is pressed care of a passenger by reason of any unknown pecuno duty in these circumstances to take extraordinary upon our attention, where it is provided that there liarity then attaching to him. It is said in the may be united in the same complaint claims arising present case that the defendant company committed out of the same transaction or transactions con- a breach of duty in allowing the carriage in which nected with the same subject of action. But this the plaintiff was travelling to become overcrowded, negligent act of running a train on a particular trip and that consequently they omitted to supply him cannot be said to arise out of the same transaction with reasonable accommodation, which the House which constitutes the general burden of the com- of Lords, in the case of Metropolitan R. Co. v. Jackplaint, nor is it connected with the same subject of son, 3 App. Cas. 193, had held to be evidence of action. The one cause of action is founded upon negligence, that is, breach of duty on the defendthe maintenance of a nuisance, and the other for ants' part. Be it so. But the obligation which the negligently operating a train on a particular occa- defendants undertook when they contracted with sion. We conclude therefore that the demurrer the plaintiff was that if they omitted to supply him was properly interposed upon the ground that there with reasonable accommodation they would be liawere attempted to be joined in the complaint two ble for the consequences usually arising therefrom causes of action, one for the relief against a contin- to one of the travelling public, not for consequences uing nuisance, and the other for personal injuries which might result to a man who required whilst received through the negligence of the defendants, travelling special protection for his safety, and happening without fault of the plaintiff, and we are which fact was unknown to the company when they of the opinion that these causes of action cannot contracted to carry him. To an ordinary passenger be united in the same complaint. These two causes the consequences of not supplying reasonable acof action are not separated or stated to be independ-commodation, which is the breach of duty now set ent of each other, and they are not separately num- up, is certainly not his being assaulted by an indebered. But under the decisions of Wiles v. Suydam, pendent tort-feasor, which is the sole injury or loss 64 N. Y. 173, and Goldberg v. Utley, 60 id. 427, the complained of in the present case. The cases put failure of the plaintiff to state them separately and in argument of the company putting a known lunato number them does not preclude the defendant tic, or a known biting dog, or a known leper, or a from interposing his demurrer upon the ground man known to be drunk and quarrelsome, into a carriage with one of the ordinary travelling public, appellant's counsel is directed to the question of imhas no bearing on the present case, for the conse-puted negligence. Their position is that because of quences likely to arise therefrom would be well- the relations existing between husband and wife, known to the company when they contracted to and because of his duty to care for and protect her, carry the passenger. The consequences likely to if a wife places herself in her husband's care by ridarise from putting pitmen to travel with a passenger ing in a conveyance driven or controlled by him, at the time of the contract believed to be one of the and he is guilty of negligence in the control or manordinary travelling public, would not be that the agement of the conveyance, his negligence is her pitmen should break the law and assault their fel- negligence. If she is at the same time hurt by the low-passenger. This is the difference between the negligence of another, being herself entirely free cases." Mathew, J., said: "I merely wish to add from fault, yet if the husband's negligence contribthat there is no new principle of law involved in the utes to her injury, his negligence will be imputed case, as it is agreed that a railway company is bound to her and she cannot recover. We cannot sanction to take reasonable care for the safety of their pas- this doctrine. It was expressly repudiated by this sengers. The controversy was as to how that reason- court in the case of Miller v. Railway Co., 27 N. E. able care is to be understood, and I am clearly of Rep. 339. There are cases where the negligence of opinion that it is to be ascertained by reference to one person will be imputed to another; but, as the ordinary incidents of railway travelling, and by stated in the case last cited, the extreme doctrine what must be taken to have been in the contempla- has never been sanctioned by this court. See, also, tion of the parties when the contract was entered City of Michigan City v. Boeckling, 122 Ind. 39. into. The principle has been very well illustrated The extent to which the doctrine of imputable negby two cases familiar to lawyers. Redhead v. Mid-ligence is recognized in this State is thus stated by land R. Co., 16 L. T. Rep. (N. S.) 485; L. R., 2 Q. | Mitchell, J., in Town of Knightstown v. Musgrove, B. 412; and Daniel v. Metropolitan R. Co., 24 L. T. Rep. (N. S.) 815; L. R., 5 H. L. Cas. 45. In the present case the plaintiff was pressed to define the limits of the supposed obligations on the railway company. It was contended by him that the railway company was bound to take reasonable care as to the safety of their passengers under such circumstances as in this case, and cases were put to him as to whether they were bound to protect railway passengers from the consequences of an unexpected landslip, or a storm or a riot at a country station. Under the pressure of these cases the plaintiff was compelled to relinquish the advanced position which he had taken up at first that the company were bound to take all care for the safety of their passengers and he withdrew to a position which he thought more tenable, that the company are under an obligation to take some care for the safety of their passengers; but if that obligation is entered into with reference to special and extraordinary circumstances, the company must remain liable for assaults, even though murderous, and for damages for loss of life; and these instances are sufficient to show that there is no such obligation. In the present case it was suggested that the servants of the company were willing that the plaintiff should be maltreated on their line, as they put him into a carriage in which there were a number of these miners by whom he was likely to be ill-used. But there is no ground for any such imputation, as they did not anticipate that the men would be ill-used." In Louisville, N. A. & C. Ry. Co. v. Creek, Supreme Court of Indiana, January 7, 1892, a wife, free from negligence, was riding with her husband over a railroad crossing and was injured by the negligence of the railroad company. Her husband was guilty of contributory negligence. Held, that the husband's negligence could not be imputed to the wife. The court said: "The principal argument of 116 Ind. 121: 'Before the concurrent negligence of a third person can be interposed to shield another, whose neglect of duty has occasioned an injury to one who was without personal fault, it must appear that the person injured and the one whose negligence contributed to the injury sustained such a relation to each other in respect to the matter then in progress as that in contemplation of law the negli gent act of the third person was, upon the principles of agency or co-operation in a common or joint enterprise, the act of the person injured. Until such agency or identity of interest or purpose appears, there is no sound principle upon which it can be held that one who is himself blameless, and is yet injured by the concurrent wrong of two persons, shall not have his remedy against one who neglected a positive duty which the law imposed upon him.' The court in the same case further says: 'When one accepts the invitation of another to ride in his carriage, thereby becoming in effect his comparatively passive guest, without any authority to direct or control the conduct or movements of the driver, or without reason to suspect his prudence or competency to drive in a careful and skillful manner, there is no reason why the want of care of the latter should be imputed to the former, so as to deprive him of the right to compensation from one whose neglect of duty has resulted in his injury.' We can see no good reason why the foregoing statement may not apply to a wife riding with her husband with as much reason as to a stranger riding with him; nor why she may not be in such case a mere passive guest, without authority to direct or control his movements, and without reason to suspect his prudence or his skill. A husband and wife may undoubtedly sustain such relations to each other in a given case that the negligence of one will be imputed to the other. The mere existence of the marital relation however will not have that effect. In our opinion, there would be no more reason or |