negligently driving over, and so causing the death of the husband of the plaintiff whilst he was crossing the defendant's line at a level crossing, the defendants called evidence to the effect that it was the invariable custom for drivers of engines to blow the whistle before reaching the crossing. There was a conflict of evidence at the trial, as to whether the whistle was blown on the occasion in question, and the jury found a verdict for the plaintiff. A rule for a new trial having been obtained, the court refused to disturb the verdict. Q. B. D., April 9, 1883. Gray v. North Eastern Railway Co. Opinion by Williams, J. (48 L. T. Rep. [N. S.] 904.)

AGENT OF VENDEE

SALE- -STOPPAGE IN TRANSITU RECEIVING AND RE-SHIPPING GOODS.-A purchaser ordered goods, purchased from W. & Co., to be sent by rail to G., and at the same time (unknown to the vendors) instructed M., S. & Co. to ship the goods on their arrival at G. to R. Some delay occurred at G. owing to there being no ship ready to take the goods, and they were warehoused by the railway company at M., S. & Co.'s risk. Whilst there they were stopped by the vendors. Held, that, as between the vendors and the vendee, the right to stop the goods was at an end when the goods had arrived at G., and when the railway company no longer held the goods as carriers; for the goods were then in the constructive possession of the vendee, the defendants M., S. & Co. being the agents appointed by the vendee to receive and forward the goods upon the fresh journey to R. Ct. of App., Feb. 27, 1883. Kendall v. Marshall, Opinions by Britt, Cotton and Brown, L. JJ. (48 L. T. Rep. [N. S. 1951.)

SALE OF REAL ESTATE-MISDESCRIPTION IN DEED -WHEN NOT GROUND FOR COMPENSATION.-After a purchaser of real property has taken a conveyance, and the purchase-money has been paid, no action will lie for compensation on account of errors as to the quantity or quality of the subject-matter of the sale, unless such errors amount to a breach of contract or warranty contained in the conveyance itself, or unless some fraud or deceit has been practiced upon the purchaser. "Legal fraud," as distinguished from "moral fraud," does not exist, moral turpitude being in all cases necessary to support an allegation of fraud. Where upon a treaty for the sale of real property the vendor bona fide represented the quantity of land to the purchaser as being three acres, whereas in truth it was 2u. 1r. 12p., and in the contract for the purchase the property was described as containing by estimation three acres or thereabouts," and in the conveyance of two parcels each containing by estimation one and a half acres, more or less." Held, that no action would lie, after the completion of the purchase, against the vendor for compensation for the misrepresentation. Q. B. D., June 26, 1883. Joliffe v. Baker. Opinion by Williams, J. (48 L. T. Rep. [N. S.J 966.)

CRIMINAL LAW.

DISCHARGING INDICTMENT-POWER OF COURT. - At the common law, only the attorney-general could exercise the power to enter a nolle pros. upon an indictment, and in this State, there being no statute upon the subject, this power is still reposed in the attorneygeneral or the several prosecutors of the pleas; but under the long-established practice in this State, an indictment, after it passes under the control of the court, may not be discharged without the consent or uader the advice of the court. The peremptory power of the court, where the common law prevails, is never exerted upon the representative of the State to dis

charge an indictment, in whole or in part, at the instance of parties. This can only be done where such power is conferred upon the court by statute. 1 Archb. Cr. Plead. (Pomeroy's Notes) 316; People v. McLeod, 1 Hill, 377; State v. Graham, 12 Vroom, 15; Apgar v. Woolston, 14 id. 57. New Jersey Supreme Court, Feb. Term, 1883. State of New Jersey v. Hickling. Opinion by Knapp, J. (16 Vroom, 152).

UNLAWFUL SALE OF LIQUOR-BURDEN OF PROOF AS TO LICENSE.—In a prosecution for the sale of intoxicating liquor without a license the people must prove that defendant had no license. In Commonwealth V. Thurlow, 24 Pick. 374, Shaw, C. J., said: "The county commissioners have a clerk, and are required by law to keep record or memorandum in writing of their acts, including the granting of licenses. This proof is equally accessible to both parties. The negative averment can be proved with great facility, and therefore in conformity to the general rule, the prosecution ought to produce it before he is entitled to ask a jury to convict the party accused." In Williams v. East India Co., 3 East. 192, the defendant company was charged with wrongfully, unlawfully, and unjustly causing to be put on board the plaintiff's ship, while in the service of the defendant, a jar of certain oil and varnish of a combustible and inflammable nature, without giving notice thereof to the chief mate of the ship, or to any other person or persons concerned or employed in the navigation thereof, by reason whereof such combustible material became ignited and set fire to the ship, which with the cargo, was destroyed, and for which damages were claimed. It was proved on the trial that neither the captain nor second mate had any notice or knowledge of the nature or presence of the combustible material. The chief mate having died, no evidence was given as to what passed between him and the conductor of the military stores of the company, although it was proved that the chief mate was an officer of skill and discretion, and that the jar would have been in a proper place on the ship had it not been of an inflammable nature. At the close of the testimony Lord Ellenborough nonsuited the plaintiff on the ground "that the proof of this allegation (want of notice) lay on the plaintiff, and the best evidence of it was still in his power to produce, notwithstanding the death of the chief mate, by calling the company's officer who delivered the article on board, who could best tell whether or not he had given such notice, as no other person appeared to have been privy to what passed between them at the time." The King's Bench sustained the nonsuit, holding that the burden of proving that the dangerous article was put on board without notice, rested upon the plaintiff alleging it, and that the plaintiff had failed to furnish the best available evidence of such want of notice. That case is cited with approval in Fresh v. Gilson, 16 Pet. 332. Wisconsin Sup. Ct., May 31, 1883. Hepler v. State of Wisconsin. Opinion by Cassoday, J.

VIOLATING REVENUE LAW - INTENT NEED NOT BE PROVED.-Under the statute making it an offense to remove stamps from casks containing distilled spirits, intent need not be charged or proved, neither need knowledge of the contents of the cask. The rule applied in such cases is that where a statute forbids the doing of a certain act under certain circumstances without reference to knowledge or intent, any person doing the act mentioned is charged with the duty to see that the circumstances attending this act are such as to make it lawful; and under such statutes a conviction may be had upon proof of doing the forbidden act, without proof of knowledge by the accused of the circumstances specified in the statute. The books contain many cases where such a rule has been applied. For instance, Barues v. State, 19 Conn. 399,

The Albany Law Journal.

ALBANY, NOVEMBER 17, 1883.

CURRENT TOPICS.

HE most succinct and sensible remarks which we

principle of the common law, designated by Mr. Bentham as 'Judge-made law,' was evolved by a long process of forensic controversy and judicial labor adopted after the maturest reflection and deliberation; and so long as it can be saved from the ruthless hand of the proposed codifier and the manipulation of a Legislature, so long will it remain under the control of the courts, can be changed

decision by the Supreme Court are those of the Rev. Dr. Patton, president of Howard University. He sums up the matter in the Independent thus: "1. The decision adverse to the constitutionality of the civil rights bill was by no means unexpected. 2. The decision of the court has not set forth any political doctrine contrary to the rights of the colored people. 3. The decision of the court leaves colored people as to legal protection just where it leaves white people. 4. It is well to notice what protection this decision of the Supreme Court still leaves to the colored people. (1.) It leaves the civil rights bill in full force in the District of Columbia and in all the territories. (2.) It affirms the power of Congress to interfere to protect the colored people in case any State shall make laws to discriminate against them. (3.) It concedes the protection everywhere of the principles of the common law recognized in all the States." (He points out that a colored man, whose rights are denied on railways or in inns, etc., may sue for damages, "and if it be said that in such a case the jury in a Southern State will not agree on a verdict in his favor, it must be remembered that the same would be and has been true under the civil rights bill, which has largely been a dead letter in many of the States.") "5. What then should the colored people do in the circumstances? Refrain from an unwise railing at the Supreme Court, acquaint themselves with the facts and principles of the case, and stand up hopefully and courageously for their legal rights, all over the Union." This is to be commended to Fred. Douglass and the other mischievous inspirers of the colored people, among whom we include the Rev. Dr. Tanner, editor of the Christian Recorder, who in the same issue of the Independent takes the singular ground that the decision must be wrong because the civil rights was passed by a Congress which contained more

great lawyers" than the Supreme Court! But he concedes that it was passed by a strict party vote, and thus would seem to imply that the Republican party monopolized the "great lawyers" in that Congress.

In the address of Mr. M. L. Stansel, president of the Alabama State Bar Association, delivered at the late annual meeting of the Association, we discover the following: 'For several years past the Legislature of the State of New York has been tinkering at a codification of the common law, and twice, by reason of a wise Governor's timely veto, has the State escaped the infliction which must have resulted in disaster to that grand old Empire State. Every VOL. 28-No. 20.

progress the world is making in commerce, in science, in general learning, and in civilization. Not so with statutory law. The courts cannot disregard the Legislative will," etc. The italics are our own. Mr. Stansel has unintentionally succeeded in stating the very best reason for the policy of codification. If he is right there is no use even in reports of legal decisions, for they if we can make out to understand them-by no means tell us what the law is, but only what it was; and what it will be in a given case no man knows, because he cannot measure the subsequent "progress" of the world. (Perhaps this is the general opinion in Alabama, for her reports are two years in arrears.) With Mr. Stansel's views, we cannot understand why he should so magnify the Alabama Code, as he does elsewhere in the same address, pronouncing it a "grand work,” and as "standing without a rival in the domain of our law-making power." All this sort of thing necessarily stands in the way of the "progress" of which he speaks.

At the same meeting Mr. Henry Wilson, chairman of the committee on judicial administration and remedial procedure, while he admitted that "simplicity and conciseness are much to be desired" in pleading, yet bewailed the ignorance of the lawyers of the present time of "the grand and beautiful science of pleading" to be derived from Chitty. Mr. Wilson is evidently either a humorist or highly imaginative, for he asserts that "under that system the complaint informed the defendant of the cause of action," and that the "system 29 "became the admiration of the world." It is evident that Messrs. Stansel and Wilson should at once pack their carpetbags for Lord Coleridge's Yellowstone Park of common-law pleading."

The system of the popular election of judges has again been vindicated by the recent election of twelve judges of the Supreme Court in this State. Of several of them - Messrs. Peckham, Angle and Fish we can speak from long personal acquaintance, and the others bear an excellent reputation. Under the administration of such men our jurisprudence will suffer no falling off in ability or purity. With this increase of the judicial force we shall look to see the arrears in the Supreme Court speedily reduced, and justice more promptly administered.

The London Times recently contained a letter entitled "American Law and Lawyers." The substance of it, with some comments, is given in

Gibson's Law Notes, as follows: "First of all then it appears that in most of the States there is a long vacation, not so long as ours, but long enough; the court of Washington especially is remarkable for the brevity of its session, and it seems that it takes from three to four years to get a decision from that court. It has a list for the coming term of 960 causes. e., three times the number it disposes of in the whole year. The judges, it seems, are elected only for short terms, and are elected by the vote of the people. This indeed appears astounding to an Englishman; but it seems that although the choice does not always fall on the right man, still on the whole the system works better than might be expected. Special pleading in some States still flourishes, and many other old legal-world ways that we have lost long since. In Washington and Baltimore it appears that a Court of Orphans still exists. This court is mentioned by Coke, but has ceased to be in active use for many years with us. The correspondent's account of a typical trial in one of the States is indeed strange reading to us. The judge is in the first place not of such importance as in England, his rulings are accepted, but not 'with obsequious eagerness.' He takes no notes, rarely interferes in the examination of a witness, reads the papers ostentatiously, opens his letters in court, and but let us pause to prepare our readers' mind

Another

'walks out of court while the advocates are arguing, walks in again to see what is going on, and not being interested, disappears again.' An English lawyer must feel blank surprise; what would be thought of a judge here who walked in and out during a trial; however, it appears that these perambulating judges give very satisfactory decisions, and that they are patient, painstaking and courteous to the bar' to a degree. remarkable trait in American judges appears to be their reticence, contrasted as it is by the Americans with what they are pleased to style the garrulousness of the English bench.' Well, after all, we would not change benches with the States. Englishmen have at least one thing to be proud of-the integrity and impartiality of the bench, never yet questioned even by the lightest breath of scandal."

There is some news in this for American readers. We hardly think it is true that the United States Supreme Court is "remarkable for the brevity of its session," for it sits six or seven months without intermission, and does a vast amount of work in the vacation. As to the tenure of the judges: in many States the judges are appointed and hold for life or until seventy; this is true of the Federal judges also. In our own State, where the judges are elected, they hold for fourteen years, which can hardly be called a short term, 'Special pleading flourishes" in very few States, and it is amusing to note the English assumption that we owe legal reform in any manner to England. We taught the English all they know or have of practical legal reform. It was this State that had the boldness and

where a prisoner, in order to effect his escape from prison, administers chloroform to one of the guards, and death ensues therefrom, he is guilty of murder in the first degree. The statute makes killing by means of poison, etc., "or any other kind of willful, deliberate killing," or which is committed in the perpetration of certain crimes not including escape, murder in the first degree. The court said, in answer to the argument that there was guilty intent: "There is a statute in Indiana similar to ours, which was construed in Bechtelheimer v. State, 54 Ind. 128. In this case poison was administered which caused death, and as we understand, the court held, in substance, that the defendant was not guilty of murder because there was no intention to kill. This case is referred to in the subsequent case of Moynihan v. State, before cited, but we cannot say it is overruled or shaken as an authority thereby. The reason given for the ruling however is not in accord with the line of thought suggested by counsel. The court say: "This construction is adopted, not so much from the language employed, considered by itself, as from the results that would flow from a different construction. If no purpose to kill is necessary to constitute murder, when the killing is brought about by administering poison, then the most innocent act of one's life may turn out to be a murder, and that too in the first degree, subjecting him to the gallows or imprisonment for life. * * * By the innocent administration of poison no penal law or moral turpitude is shown.' This reasoning is not entirely satisfactory, for the reason that we are unable to see, if it is held a specific intent to kill is not required, that it necessarily follows that a person who innocently administers the poison to another, and death ensues, is guilty of murder; that is, if an overdose of the posion is given, or it is administered by mistake and causes death, the person making the mistake is guilty of murder. We are not prepared to say such a construction of the statute should be adopted, and no such question is before us. The court instructed the jury that the poison must have been 'unlawfully administered,' and not given with a good intention.' If the jury so found, then the presumption was the 'killing was intentional and voluntary, and with malice aforethought.' That is to say, under the circum

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