*

York to Japan, and in pursuance of an agreement with plaintiffs, to furnish the latter with a policy of insurance covering the freight money and coal, procured of defendants the policy on which this action is brought, by which defendants insured " Ruger Brothers, on account of whom it may concern; in case of loss to be paid to Pacific Mail Steamship Company * * Such loss to be paid in thirty days after proof of loss, etc.; the amount of any note or notes given this company for premiums, if unpaid, and all other indebtedness being first deducted." The vessel sailed with the coal on board, and was never afterward heard from. In an action on the policy, defendants attempted to set off three notes which had no connection with this insurance held by them, for premiums made by Ruger Brothers, amounting to more than the loss-these were excluded, and plaintiffs had judgment for the full amount of their claim, less the amount of premium due on this insurance, $401.25.

Held, that "whom it may concern" in the policy insures the real owner of the property, the plaintiffs in this case, between whom and the insurance company, there is a privity from the time of the insurance. Since Ruger Brothers had no interest in the property insured, the defendants cannot set-off their claims against Ruger Brothers, arising out of a different transaction. Judgment affirmed. The Pacific Mail Steamship Co. v. The Great Western Ins. Co. Opinion by Fancher, J.

Also, see Sales.

DAMAGES.

Measure of damages: evidence. - Plaintiff sent wool to defendant, a factor, and, on October 24, 1864, gave him an order to sell it, which being disregarded, plaintiff abandoned the wool to defendant, and brought this action for its value. A motion was denied to dismiss the complaint, for insufficiency of evidence, to prove the weight or grade of the wool. Defendant furnished proof in the account for sales of two bales of the wool subsequently rendered to plaintiff, of what that wool was sold for, and there was evidence of the value of wool in October. The instruction to the jury was that plaintiff was entitled to recover "the highest price which wool of this description reached in the market, between October 24 and the time this suit was brought."

Held, that the motion to dismiss the complaint was properly dismissed. The instructions as to the measure of damages was erroneous; the true rule was value of the wool on the day it should have been sold, defendant having a reasonable time in which to sell. Judgment reversed and new trial ordered. Whelan v. Lynch. Opinion by Ingraham, P. J.

DELIVERY. See Sales.

EVIDENCE.

1. Evidence of failing to support wife. - Plaintiff was arrested on the charge of not supporting his wife, and committed by order of a police magistrate made on the ex-parte affidavit of plaintiff's wife and her sister, without further hearing or proof. When arrested plaintiff pleaded not guilty to the charge.

Held, that plaintiff was entitled to a hearing or trial before the justice, and could not be convicted of the charge of refusing to support his wife without some proof beyond the ex parte affidavits. In the Matter of Lichtenstein v. The Commissioners of Charities, etc. Opinion by Davis, J.

2. Admissions contained in return of magistrate.After commitment plaintiff gave a bond; the only

knowledge of its character was derived from the statement in the return, that "it was admitted that defendant had given a bond to pay complainant $8 per week, and had thereupon been discharged from arrest." The special sessions held that this admission precluded that court from entertaining any question, except as to the amount of the weekly allowance ordered by the police justice.

Held, that the admission was not full enough to justify the special sessions in refusing to look at all the proceedings before the police justice. Ib.

3. Evidence of character: indictment: construction of statutes.-The indictment in this case, in addition to the charge of grand larceny, for which the plaintiff in error was tried, contained an averment that the prisoner had been tried and convicted previously of grand larceny and sentenced to the State's prison, from which he had been duly discharged and remitted of such judgment. An objection is made that admitting the record in evidence before he was convicted of the second offense, was proving his bad character before he had put his character in issue.

Held, that this would undoubtedly be the rule if the object was merely to prove bad character. It was not offered for that purpose, but to prove a fact which the legislature had made proper to be proven, viz., a previous conviction. There is nothing in the statute which requires the prior conviction to be averred in the indictment. It seems to have been inserted since the passage of the law in this State in conformity with the practice in England, and that course was approved of in Stevens v. The People, 1 Hill 261, but the proceedings there have been regulated by law, which not only requires the averments in the indictment, but also by another statute which postpones the trial of the question of a previous conviction, until the prisoner has been convicted of a second offense. There is no reason why we should follow the English statute. If the matter is properly inserted in the indictment it may with propriety be proved on the trial, and the verdict of the jury taken thereon.

The inquiry is sanctioned by law, and so far it must be considered as altering the rule as to character which would otherwise exclude such evidence. Judgment affirmed. Johnson v. The People. Opinion by Ingraham, P. J.

4. Proof as to previous conviction.— Objection is also made that there was no proof that the prisoner was duly discharged and remitted of such sentence. The record shows a conviction on the 6th of February, 1871, and sentenced to imprisonment for one year. The present indictment was found in June, 1872.

Held, that the fact that the term for which the prisoner was convicted had expired, was sufficient evidence to go to the jury as to his being discharged of that conviction. Ib.

Also, see Damages; Corporations; Fraudulent Conveyances; Principal and Agent.

On and after the first day of July, the consideration of all invalid increase cases will be suspended by the pension office until after the biennial examination, which takes place on the fourth of September, proximo. The medical examinations, however, will continue in such cases, so that no applicant need suffer loss as to the commencement of the increase by reason of the date of the medical examination. Meantime all the original cases upon the files will be considered and disposed of so far as the evidence will warrant.

DIGEST OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF MAINE.*

CLERK OF COURT.

The clerk of a court has no right, ex officio, without express order of court, to complete, alter or amend the record kept by a predecessor in that office, whose term Pillsbury. has expired. Rockland Water Co. v.

EASEMENT.

A voluntary release of an easement by an administrator, without consideration, does not bind the estate nor the heirs of the intestate. Mowe v. Stevens.

EVIDENCE.

1. Evidence that defendant contracted with another to do some work to recover pay for which plaintiff sues is no defense. Bell v. Woodman.

2. In a suit between persons not party to a written contract it cannot be varied by parol testimony of a different oral agreement previously made, for such agreement is merged in the writing. Ib.

HIGHWAY.

1. Where riparian proprietors have laid out and sold their land in lots, as delineated upon a plan having streets indicated thereon, terminating upon a navigable stream, such streets will be considered as dedicated to the use of purchasers of such lots and of the public, down to the water, at all stages of the tide, unless there be some express reservation of the flats, although the lines upon the plan indicating the boundary of the tier of lots next the river be drawn at high-water mark. Stetson v. Bangor.

2. The conversion of a way dedicated to the use of the purchasers of adjoining lots into a public way does not authorize the award of more than nominal damages. Id.

JOINT STOCK COMPANY.

1. Every member of an unincorporated joint stock company is personally liable for all its debts. Frost v. Walker.

2. It is sufficient to authorize a finding, that persons are members of such company, if it be proved that their names are signed to subscription papers for its capital stock, and that they paid, without objection, assessments upon the number of shares set against their respective names, even if it be not shown by whom their names were so subscribed. Ib.

3. By contributing to the working capital the subscribers became entitled to share the profits of the company; and liable, as copartners, for its debts. Ib.

4. It seems, that there is no distinction, in respect to this liability, between subscribers for stock and stockholders; however, this may be, an actual payment of assessments upon shares subscribed for, will create this liability. Ib.

SURETIES.

1. The failure of the selectmen to examine the accounts of a town treasurer, as directed by the revised statutes, chapter 6, section 152, will not affect the iability of the sureties upon his official bond. Farmington v. Stanley et al.

2. Nor will a surety be released if the selectmen, failing to detect an error in addition, certify the treas

*From Edwin B. Smith, Esq., State Reporter, and to appear in 60 Maine Rep.

urer's account to be correct when, in fact, there is a deficit; even though this certificate be made known to the surety soon after its entry upon the treasurer's book, and while the treasurer has attachable assets enough to cover the deficit, though he subsequently die insolvent. Ib.

TRUST.

1. If a cestui que trust be induced by fraud to discharge the trust, it must be considered as extinguished as to an innocent purchaser who buys relying upon the discharge. Penobscot R. R. Co. v. Mayo.

2. But if a person whose own note is deposited in trust for others, among whom its proceeds are to be divided, obtain possession of it, without consent of the cestuis que trust, an action for money had and received brought against him, in the name of the depositary, by and for the benefit of one of those entitled to a share of the amount due on the note, is maintainable; nor can the suit be discontinued by the nominal plaintiff, without the consent of the party in interest. Ib.

JURY REFORM IN GERMANY.

The jury system, which the Germans claim to have invented, is just now a subject of controversy in Germany. It is well known to students of law that two jury systems have long co-existed in German jurisprudence. Of one of these systems the peculiarity is that all questions of law, as well as of fact, are submitted to the jury, which is composed of judges and jurors, generally three of the former to not more than six of the latter. The second system is that in use in England and this country. In the new criminal code recently laid before the imperial parliament, preference is given to the mixed jury, which is distinctively Prussian in its origin, though in use in parts of Switzerland, and it is probable that it will prevail, and become a German institution. In practice it has been found to work well.

LEGAL NEWS.

During the past year, there were 464 divorces granted in Connecticut.

The Macon (Ga.) bar gave a complimentary dinner, a few days ago, in honor of Hon. Herschel V. Johnson.

Hon. C. B. Lawrence, ex-chief justice of the supreme court of Illinois, has resumed the practice of the law at Chicago.

The Ohio supreme court has decided that the Cincinnati board of education has the right to exclude the Bible and other religious instructions from the schools.

Hon. Sidney R. Breese, the newly elected chief justice of the supreme court of Illinois, is seventythree years of age, and has been for years known throughout the State as "the upright judge."

The Ohio Constitutional Convention has indefinitely postponed a proposition to so amend the constitution as to prohibit the legislature from passing any usury laws.

Intelligence has been received of the death, at San Francisco, on the 28th ultimo, of Hon. Abraham O. Zabriskie, ex-chancellor of the State of New Jersey.

The Albany Law Journal.

ALBANY, JULY 12, 1873.

THE DEGREE OF SKILL REQUIRED OF PHYSICIANS AND SURGEONS.

It is certainly time that the courts should agree upon some definite and uniform rule as to the standard or degree of skill to be required of physicians and surgeons in their treatment of patients, and it is alike for the interest of society and of the medical profession that the standard shall be as high as is reasonably practicable.

asmuch as the witness never beheld the exercise of the precise degree of skill required, it would be impossible for him to determine either the fact or ef fect of its exercise. He would, therefore, be utterly unable to impart the information required.

"There will be found no such difficulty in applying a rule based upon the absolute skill and acquirements of individuals or classes of the profession. The skill of a thoroughly educated or indifferently educated surgeon may be readily determined. So the skill of the classes to which they belong may be known and comprehended. It would not be difficult to ascertain the degree of skill possessed by the great body of the profession-by that class which belongs to neither extreme, the thoroughly educated or the uneducated. A rule which takes as a measure, the skill of one of these classes, may be practically applied. The rule of the majority opinion, in my judgment, cannot be."

The court-Beck, Ch. J., dissenting-held this instruction erroneous, in so far as it required the skill and diligence of thoroughly educated surgeons, and the true measure of skill and diligence was held to be "that ordinarily exercised in the profession by members thereof as a body. That is, the average of the reasonable skill and diligence exercised by the profession as a whole. Not that exercised by the thoroughly educated, nor yet that exercised by the moderately educated nor merely of the well educated, but the average of the thorough, the well and the moderate-all in education, skill, diligence," etc. As Chief Justice Beck pointed out, such a rule is impracticable for the simple reason, if for no other, that it is entirely imaginary. Judge Beck said: "An average, a mean between the thoroughly educated, the well educated, and the moderately educated physicians, the classes into which the profession is divided by this opinion, would be neither the one class nor the other, but would constitute another class, or rather a standard for another class. In this newly created class would be found no member of the medical profession. Yet, this ideal standard, which, in fact, is the measure of no man, is applied to all. The rule cannot, therefore, be practically applied. Suppose an attempt be made to do so, and a member of the profession is asked whether a given treatment of a patient was in accord with the exercise of the skill demanded by this rule. In the first place, it would exceed the art of man to divine just the amount of skill to be possessed by one, in order to be the average surgeon or physician. In

The case of McCandless v. Mc Wha. 22 Penn. St. 261, is a leading case upon this question and has been largely cited in the text-books. Here the plaintiff had sustained a comminuted fracture of the leg, which was treated by the defendant, a physician and surgeon. The plaintiff claimed that, by reason of defendant's want of skill, the leg had become shorter than the other. The judge at nisi prius instructed the

aid the skill necessary for a surgeon to set the leg so as to make it straight, and of equal length with the other when healed, and if he did not, he was accountable in damages, just as a stone mason or bricklayer would be in building a wall of poor materials, and the wall fell down; or if they build a chimney, and it would smoke by reason of a want of skill in its construction, they could not only not recover pay for building, but would be accountable for damages; and if suits were more frequently brought, we would perhaps have fewer practitioners of medicine and surgery not possessing the requisite professional skill and knowledge than we now have. But it is due to the defendant to state that, with the exception of the matter complained of in this suit, there is nothing in the evidence given to show that he is not respectable in his profession."

The opinion of a majority of the court was delivered by Woodward, J., and, in remarking upon the first instruction above, he says: "It is impossible to sustain this proposition. It is not true in the abstract, and if it were, it was inapplicable to the circumstances under investigation. The implied contract of a physician or surgeon is not to cure, to restore a fractured limb to its natural perfectness, but to treat the case with diligence and skill. The fracture may be so complicated that no skill vouchsafed to man can restore original straightness and length; or the patient may, by willful disregard of the surgeon's directions, impair the effect of the best conceived measures. He deals not with insensate matter like the stone mason or bricklayer, who choose

their materials and adjust them according to mathematical lines, but he has a suffering human being to treat, a nervous system to tranquilize, and a will to regulate and control. The evidence before us makes this strong distinction between surgery and masonry, and shows how the judge's inapt illustration was calculated to lead away the jury from the true point of the cause. The question was, not whether the doctor had brought to the case skill enough to make the leg as straight and long as the other, but whether he had employed such reasonable skill and diligence as are ordinarily exercised in his profession. For less than this he is responsible in damages; but if he be held to the measure laid down by the court below, the implied contract amounts on his part to a warranty of cure, for which there is no authority in law."

Further on the judge said: "We have stated the rule to be reasonable skill and diligence; by which we mean such as thoroughly educated surgeons ordinarily employ. If more than this is expected, it must be expressly stipulated for; but this much every patient has a right to demand in virtue of the implied contract which results from intrusting his case to a person holding himself out to the world as qualified to practice this important profession."

Judge Cole, in Smothers v. Hanks, entered into a rather elaborate criticism of the case of Mc Candless v. Mc Wha, for the purpose of showing that all that was really decided was that ordinary skill was required, which he says is the "correct rule of law," but it seems to be quite a different rule from the one he had before announced, as above quoted.

In Landon v. Humphrey, 9 Conn. 209, it is said that "a physician and surgeon in the performance of his professional duties is liable for injuries resulting from the want of ordinary diligence, care and skill,” and to the same effect is Gallaher v. Thompson, Wright, 466, and Howard v. Grover, 28 Me. 97. In Wood v. Clapp, 4 Sneed, 65, the court said that a physician "impliedly contracts with those who employ him that he has such skill, science and information as will enable him properly and judiciously to perform the duties of his calling," but the court continued, "the law does not, however, require the highest degree of skill and science, but only such reasonable degree as will enable the person safely and discreetly to discharge the duties assumed." And this doctrine is substantially affirmed in Long v. Morrison, 14 Ind. 595; and in Reynolds v. Graves, 3 Wis. 416. In Ritchey v. West, 23 Ill. 385, the court expressed the rule as follows: "The principle is plain and of uniform application, that when a person assumes the profession of physician and surgeon, he must, in its exercise, be held to employ a reasonable amount of care and skill. For any thing short of that degree of skill in his practice, the law will hold him responsible for any injury which may result from its absence." To the same effect are Simonds v. Henry, 39 Me. 155; Patton v. Miggin, 51 id. 595.

Now it seems to us that the rule applied by the

supreme court of Iowa, in Smothers v. Hanks, is sustained by none of the authorities. It is besides based upon a wrong principle, for instead of requiring the physician to so prepare himself as to be able to do reasonably well the work he assumes to do, it requires the patient to be satisfied with a degree of skill scarcely sufficient to stock a cross-road practitioner. In the medical profession as in every other, the "moderately educated" will always greatly outnumber the thoroughly educated and will, therefore, according to this rule of estimating skill, drag the standard much below even what is termed "ordinary" in some of the cases.

The true rule was laid down in Wood v. Clapp, supra, that while the law does not require the highest degree of skill, it does require a physician or surgeon to possess such skill as will enable him properly and judiciously to perform the duties of his calling. This certainly is not an unreasonable rule, but is rather precisely what the cases mean when they say that a physician must be "reasonably" skillful. Such is the skill required of mechanics and artificers, and, notwithstanding what is said in some of the cases to the contrary, there is no valid reason why the same degree of skill should not be required of a physician as of a carpenter, of a civil engineer or of a ship builder. The same tests of skill cannot, of course, be applied -the test by results-but that is no reason why a different standard should be adopted. We very heartily indorse the language of the court in Wood v. Clapp, supra, that "there is no profession in which the members should be held more strictly liable for want of proper skill and science and due and faithful attention to their duties, than that of medicine. The health and lives of the people are in their hands and but few are qualified to judge of their pretensions."

CONCERNING AN APPOINTIVE JUDICIARY.

The next general election in this State will be one of unusual importance, inasmuch as it will involve, in addition to the usual political questions, the question whether our judges are hereafter to be elected or appointed. To the members of the bar this question is one of peculiar interest, and upon them will largely rest its solution. It is a duty which the profession owes to itself, to the public, to jurisprudence, to endeavor to secure the adoption of that system which will be the most certain, in the long run, to bring and keep the best judges upon the bench.

If there is needed, at this time, any thing to teach us the dangers which environ an elective judiciary, and to instruct us most persuasively of the necessity of placing the courts beyond the reach of popular passion or prejudice, we may find it in the recent experience of Illinois, where a herd of dissatisfied farmers have put an ignorant demagogue in the seat of an able and upright judge. We believe, however, that no such illustration is necessary, but that the

cause of an appointive judiciary may well rest upon its merits. Without any attempt at elaborate discussion, we purpose at this time to notice, briefly, some of the disadvantages of our present system of securing judges.

In the first place experience teaches that an appointive judiciary is more likely to be learned and able than one elected by the people- and we say this without in any wise reflecting upon the present judiciary of this State. Prior to 1846, our judges were appointed, and were, with scarcely an exception, men who did great honor to the bench, whose names are to-day always mentioned with respect, and whose decisions are regarded as high authority. Since that time we have had able judges, but we have also had too many whose only claim to the office has been their success in manipulating party caucuses and conventions. There is a very general conviction among the members of the bar, that the decadence of the legal profession began with the change in the method of selecting judges and the abbreviation of the judicial tenure. Some of the ablest of the speakers at the meeting, held for the purpose of organizing the Bar Association of New York, expressed this conviction with much emphasis. The experience of Massachusetts may be usefully reverted to. The decisions of her supreme judicial court are undoubtedly received with more deference and respect in every court in the country, than the decisions of any other State court. This is so, not because Massachusetts has more or better material out of which to make judges than the other States, but because they are more carefully and judiciously selected. They are men of learning and character, and number, living and dead, some of the brightest names in the judicial history of the country.

The people are the worst possible judges of those qualifications essential to a good judge. They could select an orator, an advocate or a debater, as his qualities are palpable and salient; but the qualities of a judge are peculiar, and are seldom appreciated by cursory and general notice. That uncommon, recondite and difficult learning; that power and turn of mind and cast of character called the "judicial," are likely to go unremarked by the non-professional observer. To him the effective advocate seems best fitted to fill the judicial office; but experience has proved that the best advocate is not likely to prove the best judge, as the two functions exact diverse qualifications.

But the chief objection to an elective judiciary is the effect it has upon the office; its dignity; its just weight; its hold upon the general confidence.

While it may be true that the selection of candidates for judges is generally left to the legal members of the conventions, it is equally true that these legal members are not usually such a class of lawyers as is competent to do any thing so important as the making of a judge-young, ambitious men, more familiar with the management of ward caucuses or town

meetings than with the conduct of a cause in court. This is bad enough, but it is not all, nor the worst. Rufus Choate has left a picture — vivid and striking. and true-of a further phase in the matter of electing judges, which we gladly quote: "So nominated, the candidate is put through a violent election; abused by the press; abused on the stump; charged ten thousand times over with being very little of a lawyer and a good deal of a knave or boor; and after being tossed on this kind of blanket for some uneasy months is chosen by a majority of ten votes out of a hundred thousand, and comes into court — breathless, terrified, with perspiration in drops on his brow, wondering how he ever got there to take his seat on the bench. And in the very first cause he tries, he has on one side the counsel who procured his nomination in caucus, and has defended him by pen and tongue before the people; and on the other, the most prominent of his assailants; one who has been denying his talents; denying his learning; denying his integrity; denying him every judicial quality and every quality that may define a good man, before half the counties in the State. Is not this about as infallible a recipe as you could wish to make a judge a respecter of persons? Will it not inevitably load him with the suspicion of partiality, whether he deserves it or not? Is it happily calculated altogether, to fix on him the love, trust and affectionate admiration of the general community with which he ought to be clothed, as with a robe, or he fills his great office in vain."

The impression is gradually spreading in this state that the people cannot trust themselves entirely. This led to that clause in the constitution for submitting the question of an appointive judiciary to the people this fall. It also led to those provisions in the amendments proposed to the constitution last winter, limiting the legislative power. This impression is entirely correct, and we urge the profession to give their united attention to bringing about a successful vote on the question of an appointive judiciary.

CURRENT TOPICS.

The Walworth trial has afforded the first opportunity of construing the recent law defining murder. Judge Davis in his charge to the jury said that "it might have been open to hold that an intentional murder, with actual malice, was justly within these words (deliberate and premeditated design to effect death) if there were not some other expression in the statute which would preclude a court from adopting that view of the effect of the law. And in creating the second degree the legislature have, therefore, said, 'such killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide, as hereafter provided, shall be murder in the second degree when perpetrated intentionally, but without deliberation or intention.' The effect of