writer who has ever really composed, knows how mystical is even style, as well as irresistible, the consonance between large method and the rythm of the best expression of it. It becomes idle then to try at this supreme stage of our Education scheme, to sketch you even an outline in the compass of these papers. But I can promise to supply, if amply, on another occasion. By way at once of key and sanction to the world of innovation which I have dared to make in the Jural treatises already mentioned, I have just prepared a volume which I entitle: The Science of Method, Logical, Dialectical and Organical; and which will furnish a text-book also for this scheme of Legal education.

Meanwhile, I will conclude with some preparatory indications, which this deduction leaves recognizable, of the Methodic Composition. The first and amplest should point out a concurrence of race to work it, as the Romans worked the Declamation and the Teutons do the Examination. For this we have, as before noted, still remaining the Celts, and who were found the organic complement in general jurisprudence. But where, then, does this history present the traces of this Composition?

That it should have much development as yet would be out of order, as the secondary or Gothic process of Examination is but just established. We must therefore resort mainly to mere rudiments of this new system, but which, as being of higher complexity, will be proportionably marked in character. This character is universally accorded to the French, of being the most methodical and logical of peoples. In our theme of jurisprudence, the trait is seen in their code of Law. Their language is the universal instrument of diplomacy, because the clearest and most correct medium of general reason and exact method. When the two fellow races try vain-gloriously to dispense with it, they fail to make themselves intelligible even to each other. The Washington treaty, or rather Bargain is a scandalous example. And a proof of the tacit consciousness of the infirmity in the English has recently been furnished by the slobbering of this strange people, which seems as flattering to the Celtic race as it is disparaging to the Gothic. The English embassy at Paris have had prepared for them a French translation of all the documents, on both the sides, about these Alabama claims, composing a huge factum of some three and a half thousand pages, in the hope, no doubt, that the two great Anglo-Saxon nations' might be enabled to see each other through this magic mirror of the Gallic idiom!

Nor should the magic be ascribed entirely to the high culture of the French. The best of ways no doubt to prove it to the English, and perhaps the Americans, would be to show them that the properties which give this power to the French language appeared already in the barbarous idiom of the primitive Irish. To evince this would ask more space and public interest than I could promise it; so I must for the present keep to two or three particulars.

With the classic ancients, we saw that order is the first element of Composition; that is, the arrangement among the names and the notions of natural objects. But when the English set, for instance, the adjective before the noun or the adverb before the verb, the arrangement cannot be natural. The object named and the action termed must exist in nature and in knowledge both, before there could have been a notion of the mode of the being or of the quality; and so the adverb and adjective should follow, or the contrary.

Now this is precisely what is found in the primitive Erse, of all the idioms of mankind with the exception of the polished French. For it is clearly thus an effect, not of culture, but of race; and of a race whose social mission is Methodic Composition.

Nay, the Irish idiom shows the trait more faithfully than does the French, in which the polish and philosophy tend to incorporate those two elements. Thus the Irish say: woman beautiful, while the French may phrase it: belle femme; although it also remains regular and sometimes strict to say femme belle. How this excels the English contrary must be now plain from even this simplest instance. The term 'beautiful' applies to countless other objects besides woman; and as pronounced foremost, or if asserted, must leave the hearer to vague uncertainty. And this in rapid acceleration as the epithets are plural. When Don Quixote, who in all things was the very type of the Celtic race, would give his mistress all the qualities initializable by the whole alphabet, he does it quite perspicuously by anteposition of the noun or subject. But if Hudibras, the English Quixote, were to make a like attempt, the subject matter would have been forgotten by even himself before he was half through. But, moreover, when our term 'beautiful' is supplemented by its subject woman, they must be both again defined at the other end by an article. The Irish and French, on the contrary, need none; for the noun Woman, being placed foremost, 'defines itself' the subject matter. This simple sample from the very lowest degree of Composition, will give your readers the double secret of French method and of English draftsmanship. For the structure of the language is in both the immediate cause; and the races merit praise or blame but as the mould that shaped the idioms.

The Spanish Celts, with whom the idiom was submerged wholly by the Latin, advanced this function of the race into the domain of our very subject. Procedure, which in jurisprudence answers to the part of method, they set off by the due natural division into three departments, for which they have respectively a body of legal rules. The compartments are known to Jurists by the names of stylus, ritus, forum; and which answer, with due analogy, to my three stages of Education.

In fact the stylus, as the foremost, begins our Methodic Composition, by taking thus its designation from the very instrument of writing. It meant the basis of Procedure, which the Motings must reduce to discipline; the style, or dregs of language, best becoming the several subjects. The Ritual, which is next in order, forms the part of Examination; the various ways of doing things practically, as got by Reading from books and courts; in a word, the rite acta, as the Motings prepared for the rite dicta. The Forum, for which likewise our law and language have no strict expression, ascends into the supreme region of Methodic Composition, and controls both the rights of parties and the court jurisdictions-which were governed respectively by the Stylus and the Ritus-by launching abroad (foris) into absolute reason and national equity.

J. O'CONNELL.

The LORD CHANCELLOR of England has conferred the "Silk" upon Mr. Judah P. Benjamin, who was well known in this country as the Secretary of State to the late confederate government. He was some time since made queen's counsel for the County Palatine of Lan

caster.

GENERAL TERM ABSTRACT.

FOURTH DEPARTMENT.-JUNE TERM.

RAILROAD COMPANY.

1. Negligence: injury at crossing. — The respondent, a farmer's boy, fourteen years of age, sustained the amputation of an arm by reason of collision with appellant's train at a railroad crossing, while riding in a lumber wagon, drawn by a team of horses driven by his companion and employer, Davis, who was killed. The road on which they were riding crosses the track at an angle of forty-five degrees; for some distance on the north side of the track it descends toward the railroad; at points some rods from the track a train can be seen by standing up in the wagon, but near the track it is impossible, owing to high banks on each side of the road. The team was driven down the hill on a "shackling" gait, neither the plaintiff or Davis seeing or hearing the train until within a few feet of the track, when Davis hauled the team to one side, but not enough to completely clear the track. One of the horses was afraid of cars. Although the plaintiff heard neither bell or whistle, evidence was given to prove that the whistle was blown. At the close of the evidence the court charged that if Davis knew his nigh horse was afraid of the cars he was bound to exercise great caution before going on the railroad, and, if the want of such caution caused or materially contributed to the injury the plaintiff could not recover. The defendant's attorney claiming that "extreme" rather than "great caution" should have been used excepted to this. Held, the refusal to charge that, under these circumstances, Davis was bound to extreme caution, was correct. It is impossible to determine what would constitute extreme caution as distinguished from great caution. What one would call extreme, another might call great only, great caution is a much more certain standard than extreme, and much more easily applied. McShean v. The N. Y. C. R. R. Co. Opinion by Mullin, P. J.

2. The court was also requested to charge that, if by standing up in his wagon when near the track and looking down the railroad, Davis could have seen an approaching train, his failure to do so was negligence. The request was denied, but the court charged that if he had any reason to suppose that a train was about to pass, and failed to do so, it was negligence. Held, this request should have been granted, if there had been any evidence to found it upon. Ib.

3. A person who has no knowledge of the times trains pass a given point is not at liberty for that reason to omit any reasonable precaution. But there is no proof in the case that Davis did not stand up and look down the track, and the omission cannot be assumed. Ib.

4. The court was also requested to charge that, if Davis was unable to see the track, it was his duty to stop and listen for the train, and if by so doing the collision might have been avoided, the plaintiff could not recover. The court was also requested to charge, that if to enable Davis or plaintiff to listen it was necessary to stop the wagon to overcome its noise, the omission to do so was negligence, and if such omission contributed to the injury plaintiff could not recover. The court declined to charge on these two requests, otherwise than he had already charged.

Held, they were properly refused for the reason assigned by the court. The jury had already been charged at the request of defendant's counsel, that, if

Davis knew of the crossing, and that trains were often passing this point, and failed to exercise reasonable care to ascertain whether there was any train approaching in time to avoid the accident, such failure was negligence. The failure of Davis to make efforts by looking and listening to ascertain whether a train was approaching (if he did so fail) was such a failure to exercise due care as would deprive the plaintiff of any cause of action. Having laid down this rule covering all the omissions of care and caution, it was not the duty of the court to charge the jury again in regard to each particular act. Ib.

The verdict gave the plaintiff $12,000 damages. The defendant asks for a new trial on the ground that the damages are excessive.

Held, that, while it may be true that the interest of the damages is more than farm laborers usually receive, yet we cannot assume that plaintiff would have followed the business of farming. He might have obtained a position in which his yearly earnings would amount to ten times the income of the verdict. Ib. 5. It is impossible to estimate the annoyance caused plaintiff by the inability to supply his own wants. The courts in different parts of the State have refused to set aside verdicts in some cases as large, and in others nearly as large, as the one in this case on the ground that the damages were excessive. The practice should be the same in all parts of the State. Ib.

6. The motion for a new trial must be denied and judgment ordered for plaintiff on the verdict. McShean v. N. Y. C. R. R. Co. Opinion by Mullin, P. J.

SUMMONS.

Action for penalty for charging over fare. — This action was commenced under the general railroad act to recover of the defendant the penalty therein prescribed for demanding and taking illegal fare, and to recover the illegal fare so charged. This is an appeal from an order denying a motion to set aside the summous and complaint on the ground that the action being one to recover a penalty for demanding and taking illegal fare, etc., the summons should have contained a notice to defendant that the plaintiff would apply to the court for the relief demanded in the complaint, instead of the notice contained in it, viz.: that he would take judgment for $100 besides costs. Held, that this action is simply an action of debt, and is governed by the same rules, and that the notice in the summons under the first subdivision of section 129 of the Code is proper, that if this was not so in an action of this kind to recover a penalty and the illegal fare, the summons would have to contain a notice under both subdivisions of section 129, under the first subdivision to recover the fare, and under the second to recover the penalty, or else two actions would have to be brought. It is manifest the legislature intended no such absurdity. That notice under either subdivision of section 129, in a case of this nature, would be proper.

The court also held, that the order denying the motion to strike out the summons and complaint did not affect any substantial right of the defendant, and is not an appealable order, but disposes of the appeal on the merits.

Order affirmed. $10 costs. McCoun v. New York Central & Hudson River Railroad Co. Opinion by Mullin, P. J.

SIDEWALKS.

Duty of municipal corporations to repair. — Action to recover for damages sustained by plaintiff by reason

the county court. Held, by the general term, that the bond was not void under the statute (2 R. S. 286, §59), as taken colore officii. That the word "law" as used in the statute is not restricted to statute law (Decker v. Judson, 16 N. Y., Griffiths v. Hardenbergh, 41 id. 469), and the bond being good at common law was not within the prohibition of the statute, unless taken by the obligees "wrongfully under the pretended authority of their office," and there being no proof of such wrongful taking that the bond was valid. That the obligation of children to support their indigent parents was a sufficiently good consideration to sustain the defendants' promise. Judgment of the county court reversed, and that of this justice affirmed. Turner & Donnelly, overseers of the poor of Kortright, against Haddon et al. Opinion by Potter, J.; Miller, P. J., concurring; Parker J., dissenting.

2. Former adjudication.—December, 1867, the plaintiff Turner, as such overseer, had recovered a judgment against the defendants upon the same bond for the expense of supporting Nancy Haddon up to that date. This action was brought to recover for the expense of her support since that date. Held, by the general term, that the former judgment was not a bar to this action. The proof shows that damages were not therein recovered for an entire breach. Beach v. Crain, 2 Comst. 86, 93. The case of Shaffer v. Lee, 8 Barb. 412, merely holds that a plaintiff can recover final damages for the breach of a continuing obligation, where he elects to consider the breach entire. The undertaking was not a continuing one to pay the actual expenditures for the maintenance, but a single one to pay a sum. The former judgment was therefore a bar.

The bond was not an official one. It therefore did not pass to the successors of the obligors, and such successors cannot maintain an action upon it. Ib.

COMMON CARRIERS.

1. Delivering.-The Northern Transportation Co. ran their propellers from Milwaukee to Ogdensburg. The defendants' railroad ran from Ogdensburg to Rouse's Point. The two formed a continuous line for the carriage of freight; and, by an arrangement between them, property was carried over the whole line for a specified through freight to be paid for the whole carriage, which was afterward divided; at Ogdensburg the wharfs and warehouses used in the transmission of freight from the propellers to the defendant's cars were owned by the defendants, but were used by the transportation company and the defendants under the following arrangement. There was an agreement between the transportation company and one J. M. Chamberlain, by which Chamberlain was to handle all freight from the propellers of the transportation company to the defendants' cars, and from the defendants' cars to the propellers, for the price of thirty cents per ton, half of which was paid by the transportation company and half by the defendants. For that purpose he had control of the warehouses. And the custom in regard to freight bound east was, for Chamberlain to receive it from the propellers; notify the defendants of its arrival; place it in the warehouses; and, when the defendants sent cars for the purpose, load it therein.

On the 12th of August, 1864, Brigham and Burleson shipped certain barrels of flour at Milwaukee, by the propellers of the transportation company, under a bill of lading which described the property as directed to H. & W. Cluetsering, Boston, care George A. Eddy, Agt., Ogdensburg, and which contained an agreement to

deliver it in good order to the consignees at Ogdensburg, "dangers and accidents of fire excepted." George A. Eddy was agent of the Northern Transportation Co. at Ogdensburg.

The flour arrived at Ogdensburg Aug. 18, 1864, was received at the rail of the propeller by G. J. M. Chamberlain and placed in one of the warehouses, and the defendants on the same day were notified of its arrival. It remained in the warehouse awaiting cars for its carriage east over defendants' road, until Aug. 28th, when the warehouse and all its contents were accidentally destroyed by fire.

The plaintiff had previously issued a policy of insurance upon the flour, which it paid; and then brought this action, claiming to be subrogated to the rights of the owners. The action was tried before a referee, who ordered judgment for the defendants. Held, by the general term, that the property had passed into the possession of the defendants, and they were liable as common carriers. Converse v. The N. Co., 33 Conn. 182. If not, that it was in the possession of Chamberlain. And Chamberlain, being in the joint employ of the transportation company and the defendants, they were jointly liable; and no defect of parties having being urged by the defendants, the plaintiff was entitled to recover. Judgment reversed, new trial ordered. Etna Insurance Co. v. Wm. A. Wheeler et al. Opinion by Potter, P. J.

2. Exemption from liability, connecting lines. - Admitting that a connecting line is entitled to all exemptions in the contract made by the shipper (B. & E. [Riv. Co. v. Collins, 7 H. L. C. 194; Manhattan Oil Co. v. Camden & Amboy R. R. Co., 5 Abb. N. S. 296), the exemption here had expired before the loss. It ceased when the goods passed through the hands of George A. Eddy at Ogdensburg. There is nothing to prevent a carrier from limiting its liability for a portion of its route, and sustaining it for the remainder. So there is nothing to prevent the first of a number of connecting carriers from limiting its liability, and leaving the subsequent carriers, over whose lines the goods may pass, to sustain all their obligations under the common law. Ib.

3. What agent has power to bind company by contract to carry beyond its own line? R., defendant's station agent at Otego, who acted both as ticket and freight agent at that station, agreed with defendant to carry freight for him to New York, over defendant's road and the Hudson River railroad, for a specified sum. Upon the arrival of the freight at New York, plaintiff was obliged to pay more than the agreed sum, and he brought this action to recover the excess. It was not proved that defendant's road and the Hudson River railroad were connecting lines. It was proved that R. had no authority from the company to contract to carry freight beyond its line, and that he had express instructions to the contrary. After paying the freight, plaintiff complained to the defendant, and R. then made him "a proposition in regard to settlement," to ship freight for him at less than usual rates. This proposition received the assent of the defendant's general freight agent, and was accepted by plaintiff, and one shipment was sent for him by defendant at the reduced rates. Plaintiff complained that the freight was still too high, and, upon the matter being reported to the general agent, it was replied, "that matter has been settled once; let him sue." Plaintiff had judgment before a justice of the peace, which was affirmed by the county court. Held,

by the general term, that R. had authority to bind defendant by all acts within the general scope of his apparent authority; that such general scope of a subordinate agent is confined within the limits of a carrier's actual business. For instance, if a carrier with a charter to build a road from Albany to Buffalo, should actually build and operate it only from Albany to Syracuse, its actual business would be confined to the line between the two latter points. So a carrier, under its undoubted power to contract to carry goods beyond its own line, may extend its actual business to any point however distant; but, unless so extended in fact, its business would be confined to its own line. That, there being no proof of such actual extension of the defendant's business, R. had no authority to make the contract. Burroughs v. N. & W. Railroad Co., 100 Mass. 26. Whatever is said to the contrary in Schroeder v. H. R. Railroad Co., 5 Duer, 55, is obiter, and repudiated in the head-note to the case, by the judge who wrote the opinion. Judgment reversed. Wait v. Albany & Susquehanna Railroad. Opinion by Potter, J.

Action for the alleged conversion of some bricks. Plaintiff was defendant's tenant, and had erected upon the leased premises a steam generator, inclosed in fire brick, for trying experiments. His lease ended May 1, 1868, and he then surrendered the premises, removing the generator, but leaving the brick and mortar with which it had been inclosed and other rubbish, scattered over the floor, and some thirty or forty of the same kind of brick which had not been used, piled up in a building on the premises. The day after the surrender of the premises defendant's agent called upon plaintiff and requested him to remove the rubbish and debris away. Plaintiff replied "that he had had a great deal of rubbish to remove away from there during his occupancy, and he proposed to let one offset the other." Defendant afterward removed the bricks and rubbish at an expense. The plaintiff was nonsuited. Held, by the general term, that plaintiff's answer to defendant's agent was a refusal to remove. That defendant was not bound to repeat the notice, but had a right to accept the refusal as an abandonment, if he did so at an expense to himself. That by the removal of the rubbish he incurred such expense; and that the plaintiff was either estopped from claiming the value of the rubbish, or, at least, was bound to tender the cost of removal before bringing his action. McLaughlin v. Waite, 5 W. R. 405. Judgment ordered on the nonsuit. Mitchell v. Ames. Opinion by Potter, J.

CRIMINAL LAW.

Corpus delicti. - Error to the Ulster oyer and terminer to review a conviction for manslaughter in the second degree, upon indictment of the plaintiff in error for murder of his wife. The deceased and the plaintiff in error had been married fourteen years; had two small children and lived in a house by themselves. The deceased was given to drinking, and, when under the influence of liquor, would act "wild," crazy," and "wander over the country." She and her husband would frequently quarrel and fight, and eighteen months previous to her death he said that "if she did not stop drinking he would be the death of her, or

66

ought to be." The 16th of June, 1870, was a Catholic holiday. The plaintiff in error, Bennett, had been away from home, and while he was gone one Rafferty assisted deceased in housing a barrel of flour. Bennett came home about half-past four in the afternoon, and she then got a bottle of rum, out of which Bennett and Rafferty each took a drink, and then left the bottle with her. Rafferty then went into the house with her and took a cup of tea. He came out again in a few minutes, and she was afterward seen feeding the cow. It was now evening; a summer night, and the windows all open, so that any loud sounds in the house would have been readily heard by the neighbors. In a little over half an hour after Rafferty left the house, she was found lying in a pool of blood in the house, nearly naked, speechless and dying. In the adjoining room there was considerable blood, and in the third room there were spots. No noise or outcry of any kind had been heard, until Bennet called the neighbors, saying that his wife was dying. He said he had given her one or two slaps. Upon examination a wound was discovered inside the vagina, about an inch from the orifice, about an inch and a half in depth. Also an external wound of about the same size. A part of a kerosene lamp was found lying by her, with a stain of blood and one or two hairs upon its end, with which the wound might have been inflicted. She bled to death from the effect of the wound. Upon this evidence Bennett was convicted of manslaughter. At the close of the testimony, Bennett's counsel moved for his discharge, upon the ground that there was no sufficient evidence that a crime had been committed. Held, by the general term, that in the absence of all evidence to show how the wound was produced, the rule requires the establishment of two separate propositions: 1. That an act has been committed from which legal responsibility arises. 2. That the legal guilt of such act attaches to a particular individual; that, under these propositions, if the case depends upon circumstantial evidence, the hypothesis upon which a conviction can be sustained ought to be such as would exclude every other equally probable theory of the manner of death. In the principal case, the instrument by which the wound was inflicted could equally well have produced her death by an accidental sitting upon it in her condition of inebriety, whether it stood upon the floor or in a chair, or that she purposely used it to produce an abortion; the circumstances of ill feeling, scuffles and quarrels between deceased and her husband, are as logically connected with suicide as with homicide. It is true there may have been a homicide, but it is not established. The fact of death alone, with no sufficient evidence of criminal agency, is insufficient; there was nothing for the jury. Conviction reversed. Bennett v. The People. Opinion by Potter, J.