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directors, who are the managers of the corporation to pass it, another part of the same act may not be oband the persons in whom the control of its business noxious to the same objection but may be enforced as and property is vested. Boono Corp,, § 144; Titus v. if made in a different statute. But the principle thus Cairo, eto., R. Co., 8 Vroom, 98-102; Leggett v. N. J. invoked is subject to the limitation that the enactBanking Co., Saxt. 541. The president of a corpora ments thus separated as constitutional and unconstition, organized for business purposes, is its chief exec tutional must be wholly independent of each other. utive officer, and in virtue of his office has authority If they are so connected and dependent as to warrant to perform all acts of an ordinary nature, which by the belief that the Legislature intended them as a usage or necessity are incident to his office, and may wholo, they must stand or fall together. Warren v. bind the corporation by contracts in the usual course Charlestown, 2 Gray, 81-89; Stato v. Commissioners of of business. His authority to act for the corporation New Brunswick, 9 lroom, 3:20; State v. Kelsey, 15 id. may also be enlarged beyond those powers which are 1, 29. Horris v. Carter. Opinion by Scudder, J. inherent in his office, but those are cases where the agency of the officer has arisen from the assent of the directors, from their consent and acquiescence in per MICHIGAN SUPREME COURT ABSTRACT. mitting him to assume the direction and control of its business, and are instances of the application of the

MASTER AND SERVANT-RISKS OF EMPLOYMENTprinciple that a principal will be liable for the acts of

CONDUCTOR

CONTROL

ENGINE his agent within the apparent authority conferred

BRAKEMAN. When

accidental upon him, Taylor Corp., $ 202, 236-2H; Ang. & Ames

injury results to servant from Corp., $$ 299-302; Martin v. Webb, 110 U. S. 7. That

pected

that arises in the course of his the president of a corporation is the owner of nearly

employment, he must be deemed to have assumed the all its capital stock, and is its superintendent and

risk thereof, and is not entitled to recover therefor. treasurer aud the active manager of its affairs, and was

The engineer and fireman in charge of the locomotivo accustomed to borrow money for the company's use,

of a railroad train having temporarily left their rewill give him no power to incumber its property by a

spective posts, the conductor, who it was alleged was mortgage or judgment confessed for money borrowed.

incompetent for the purpose, undertook to take the Stowe v. Wyse, 7 Conn. 214; C. & N.W. R., etc., Co. v.

place of the engineer, and ordered a brakeman to make James, 24 Wis. 388. The corporation having become

a coupling, and while he was obeying this order, and insolvent, its receiver, as the representative of creditors, has the capacity to take the objection that a judg

in cousequence of the unskillfulness of the conductor,

the brakeman was injured. Helil, that he was not enment against the corporation by confession

titled to recover, in an action against the railroad for not obtained in such a

as to be binding

such injury. In this case, the plaintiff says the engiupon the corporation. Vail v. Hamilton, 85 N. Y.

weer and fireman temporarily left their posts for some 453. Stokes v. N. J. Pottery ('o. Opinion by Depue, J.

purposo unknown to the plaintiff. It is not charged CONSTITUTIONAL LAW — LIMITATION-ANTECEDENT that they did so with the company's consent, or that OBLIGATIONS.- The limitation in the act of March there was any wrong connected with their leaving, for 23, 1881 (Pamph. L., p. 184), that suits on bonds which the company was responsible. Suppose they should be commenced within six months

from

had gono off on a strike; may other persons employed the date of the sale of mortgaged premises, is so con on the train refuse to assis in moving it out of the nected with the other parts of the act as to be insepar way of other trains? Surely this question must be able, and as to antecedent obligations, is unconstitu answered in the negative. If under any circumstantional. In Baldwin v. Flagg, 14 Vroom, 495, the sec ces, the conductor may rightfully take charge of the ond section of the act was construed, and the court say engine, this suit must fail, as there is no allegation in that as applied to antecedent obligations, it is in viola the declaration to show that in this case he was tion of the constitutional prohibition of the Legisla not justified. And he, being the person responsible ture to pass any law impairing the obligation of con for the safety and management of the train, must tracts, or depriving a party of any remedy for enforc be allowed a certain discretion in deciding upon ing a contract which existed when the contract was emergencies, and the presumption must faror his acmade, for the reasons that the act not only postpones tion. And when he acts rightfully, it is contemplated the obligee's remedy on his bond until the foreclosure in the employment of his subordinates that they, proceedings are terminated, but also impairs the within their several spheres, shall assist him. That value of the mortgage security by subjecting the pur there is nothing in the Bayfield case, which in the chaser's title to conditions of redemption after salo opinion of the judges who decided it, conflicts with which must diminish the vendible value of the moit this view, is apparent from the case of Greenwald v. gaged premises. Coddington v. Bispham, 9 Stew. Eq. M., II. & O. R. Co., 49 Mich. 197; S. C., 1:3 N. W. Rep. 574, in the Court of Errors and Appeals, approves this 513. In that case a fireman was ordered to perform construction, and settles its authority. In these cases, the engineer's duty, and while doing so an injury ocit is now said, the court has passed on the effect of the curred to a brakeman, for which suit was brought. law as it attempted to control the obligee and mort The chief justice, speaking for the court, said the order gagee's right to prefer either his bond or mortgage by was a proper one beyond question;

" and the caso suit in enforcing his remedy for the debt thereby se was disposed of on that assumption. But as respects cared, but it does not directly say, because it was not the propriety and rightfulness of the order, that case called for by the facts of these cases, that when this stands upon exactly the same grounds with this. The preference is made by first foreclosing the mortgage case of IIouston, etc., R. ('0. v. Myers, 55 Tex. 110; S. the holder of the bond is not subject to the limitation C., 8 Am. & Eng. R. ('as. 114, is directly in point here. to bring his action on it within six months from the That case differs from this only in the fact that it was date of the sale of the mortgaged premises. It is the fireman and not the conductor who was managing claimed by this plea, and the argument for its legality, the engine, and who was alleged to be incompetent for that the limitation to the suit on the bond after sore the duties of the engineer. A brakeman, who was inolosure is separable from the faulty parts of the stat- jured while the fireman was thus in charge, brought dte. This supposed distinction is based on the rule suit against the railroad company, but was held not that where one part of a statute is unconstitutional entitled to recover. The judge of the Superior Court because it is not within the scope of legislative power took the same view of this case, and we think his judge

zens.

ment should be affirmed. The opinion of this court in courts of this state can acquire jurisdiction to render Detroit Savings Bank v. Zeigler, 52 Mich.

; S. C.,

a personal judgmont against a defendant when he is a 1 Am. & Eng. Corp. Cas. 333, contains much respect non-resident, and is not served with process within its ing mutual assistance by subordinates in special cases, jurisdiction, but is served out of the jurisdiction with that applies with force to the case of servants in var notice of suit having been commenced against him, and ious capacities on a railroad train. Rodman v. Mich. of garnishment proceedings against his debtors within Cent. R. Co. Opinion by Cooley, C. J.

the jurisdiction; and a judgment so rendered will pro[Decided Oct. 15, 1884.]

tect the garnishee against liability over to the princi

pal defendant for the amount of any judgment reuMASTER AND SERVANT-CONTRACT-TERM OF SER

dered against him in the garnishment proceedings. It VICE-EVIDENCE-QUESTION FOR JURY.-Plaintiff ev

is a well-recognized principle that every State possesses tered into the service of defendant on November, exclusive jurisdiction and sovereignity over persons 1880, under a written contract dated October 29, 1880,

and property within its territory, and it may make on a salary of $2,000 per year, payable in monthly

laws to subject property situated within its limits, payments,”and continued in such service until March

owned by non-residents, to the payment of claims due 21, 1883, when he was discharged. Held, in an action

to its own citizens from them. Such legislation is by plaintiff to recover the balance of the year's salary, based upon the necessity of the case, and the ip ice that the contract was admissible in evidence, and that

which would result from permitting non-resident whether or not the hiriug was from year to year or debtors to withdraw their property or assets from the from month to month was a question for the jury.

jurisdiction of the State, and is a legitimate exercise Tallon v. Grand Portage, etc., Co. Opinion by Sher

of its authority to hold and appropriate the property wood, J.

of such debtors to satisfy the claims of its own citi[Decided Oct. 22, 1884.]

1 Smith Lead. Cas. (7th ed.) 1121, et seq. In the PARTNERSHIP_WHAT CONSTITUTES.—When a con

absence of personal service upon the non-resident detract between parties contemplates action to be taken

feudant within the jurisdiction of the court, or his at once and continuously for the joint benefit, one

voluntary appearance in the suit, the jurisdiction can party to furnish the money in advance and the other

extend no further than an inquiry as to the amount of to give his time and attention to putting up machin

the obligation of the non-resident to its own citizens ery to carry on the proposed enterprise, a present part

for the purpose of showing the extent necessary to nership is created, and not merely an agreement to

control the disposition of the property. Picquet v. form a future copartnership entered into. The pur

Swan, 5 Mas. 35; Boswell's Lessee v. Otis, 9 How. 336; pose must be derived from the nature of the agree

Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 ment, and not from the meaning of the words as pres

U. S. 7914; Freem. Judgm., $ 573; Whart. Confl. Laws, ent or future, standing alone. Kerrick v. Stevens. Opin- $$ 649, 715; Am. Lead. Cases (5th ed.), 6:25, et seq. Jurision by Campbell, J.

diction in such cases is upheld mainly upon the ground [Decided Oct. 22, 1884.]

that the object of the proceedings is to subject certain

specified property to the payment of the demand, and MUNICIPAL CORPORATIONS CONTRACT WITHOUT are substantially proceedings in rem against the propFORMALITIES REQUIRED BY CHARTER-INTERVENTION erty, and are justified by principles underlying such OF ATTORNEY GENERAL-INJUNCTION.- Where the for proceedings. Whart. Confl. Laws, $ 717; Waples Proc. inal provisions of a city charter have not been fol in Rem, ch. 55, and cases cited above. One of the eslowed, preliminary to entering into a contract for sential requirements to sustain proceedings in rem is lighting the streets of the city, no bad faith or inten that notice shall be given, either general to all the tional abuse of authority being charged or shown, the world, or special to the parties interested. The statState has no interest that will justify the interven ute under consideration provides for such notice, and tion of the attorney-general by information to enjoin that it shall be served upon the party interested, and the corporate authorities from carrying such contract proof thereof filed before judgment can be entered. into execution. In Attorney-General v. City of De Moore v. IVayne Circuit Judge. Opinion by Chamtroit, 20 Mich. 263, we said that “every misuse of cor plin, J. porate authority is, in a legal sonse, an abuso of trust; [Decided Oct. 15, 1881.] and the State, as the visitor and supervisory authority and creator of the trust, is exercising no impertinent vigilance when it inquires into and seeks to check it.” PENNSYLVANIA SUPREME COURT But in the same case it was added: “Where how

ABSTRACT. ever the attorney general is to intervene in corporate affairs on behalf of the State, the abuso should be one

WILI-TRUST-POWER OF DISPOSAL.-A testator, in of a substantial nature, and not of a character merely

a will disposing of a considerable estate of his own and technical or unimportant. It should appear that the

of a larger estato of his deceased wife which he enpublic has a substantial interest in the question. The

joyed for life, and as to which he had an absolute right involved should be a public right, or at least

power of appointment, made this provision: “The not a private right merely. The wroug done or at

residuo of my estate, of every kind, and that left to me tempted, if it consist solely in a misuse or misappro

by my beloved wife by her last will and testament to priation of funds, should be either one involving ques

dispose of as I deomed best, I direct my executors to tions of public policy, or whero that is not the case,

divide into five parts.” Ho then devised and bethe amount involved should be something more than

queathed one part each to his two sons and one each to merely nominal; something that it is not beneath the

his threo daughters. Ile further provided, “the three dignity of the State to take notice of and protect by

last parts of my estate are to be held in trust by my such a proceeding. The remedy is somewhat extraor

executors or trustees and the interest to be paid andinary, and substantial grounds ought to appear to

mually into their own (the daughters') hands." Tesjustify a resort to it.” Atty.-Gen. v. City of Detroit.

tator further gave his daughters power to dispose of Opinion by Cooley, C. J.

their shares by will if they should leave no children, [Decided Oct. 22, 1884.]

but if either should leave children they were to take JURISDICTION-GARNISHMENT NON-RESIDENCE OF

their mother's sharo at her death. If any of testator's PRINCIPAL DEFENDANT- PERSONAL JUDGMENT. -The children died before attaining majority, he provided

on

EIGN

that his or her part of his estate should be divided sons, declared that in case of the death of either of among the survivors. Field, that the trust for the them before him the devise or bequest should not daughters' shares applies to the three shares of his lapse, “but shall go to,and be taken by the heirs, execwife's estate as well as of the testator's own estate. utors, or administrators of said legatees or devisees Rawle's Appeal. Opinion by Trunkey, J.

so dying, in the same manuer as if the same had been [Decided April 21, 1884.]

specifically derised.' He was evidently awaro of the BAILMENT—FRAUD—AGENCY.-A., an insolvent, en

distinction between real and personal estate. IIe has

used throughout his will the words legally appropriate tered into an agreement with B. to carry on his busi

to each. All his legacies of mero personalty are by ness, whioh was that of a currier, as B.'s agent, and so

the words “give and bequeath," but when he comes to held himself out to the world, bought leather, made it ap, sold it, and then paid B. one cent per pouud more

the residuary clause in which he blends both his real than it was bought for. In a contest between a for

and personal estate, he is careful to use the words mer creditor of A. and B. as to the goods, hell, that

“give, devise, and bequeath,'' and adds a limitation to

“heirs, executors, administrators, and assigns." We the question whether A. was B.'s agent was properly

may infer then that in the substituted gift for the submitted to the jury, there being no other evidence

lapsed devise the word “heirs” was used in none of fraud. Spanogle v. Doane. Opinion per Cu

other than its legal technical meaning. Apart howriam. [Decided April 21, 1884.]

ever from this very important assistance at arriving

at the true intention of the author of the disposition, ASSESSMENT - PAYMENT UNDER PROTEST.--Where it is a canon of construction settled in many cases, houses are

erected a private street in the that the word “heirs” shall receive its appropriate city of Philadelphia, which has not been technical sense, unless there is some language or exadopted by the city, and in which no water-pipe has pression which shows that it was used in the broader been laid, the granting of a permit to connect with a and more popular sense.' Other illustrations of this water-main on an adjacent street is discretionary with ruling are found in Ralston v. Walu, 8 Wr. 279; Por the water department, and may be prohibited, unless ter's Appeal, 9 id. 201; and Eby's Appeal in Wisler's a frontage assessment is paid for water-pipe to be after Est., 14 id. 311. Ivini's lppeal. ()pinion by Green, J. ward laid when the street is dedicated. Where under [Decided April 28, 1881.] such circumstances plaintiff paid the frontage tax under protest, and afterward testified that the money was paid as a deposit, to be held in case the city should

FINANCLIL LAI. by ordinance direct a pipe to be laid. Ilelil, this was not such an involuntary payment as would entitle

NEGOTIABLE INSTRUMENT-ASSIGNMENT OF, BY FORplaintiff to recover the money back, until at least the

EXECUTOR-ASSIGNEE MAY SUE.-A party to city has had a reasonable time to lay down the pipe,

whom an executor appointed by a will duly probated in and that demand should have been made to have the

another State, but not probated in this State', has assame laid down prior to the institution of a suit to re signed a promissory note in accordance with a bequest cover the sum paid. Boswell v. City of Philadelphiu.

in such will, may maintain'an action on then ite against Opinion by Sterrett, J.

the payee n this State. It does not appear whether or [Decided Feb. 4, 1881.]

not the clecedent was indebted to any resident of this

State. It is insisted that a foreign executor can W11-IIEIRS AND NEXT OF KIN-HUSBAND.-A tes

not maintain an action in the courts of this State. tator in a will, which was distinguished throughout by strict legal accuracy in the use of terms, devised cer

For the purposes of this case this will be conceded; taiu real estate in fee and bequeathed certain person

and this being done, it is further insisted that for the

samo reason the assignee of such an executor cannot alty absolutely to trustees in trust for his daughters

maintain such an action. Counsel cite and rely on for life, with a testamentary power of appointment to

Thompson v. Wilson, : V. II. 29:2; Stearns v. Burn. each orer her share of his estate. In default of the ex

ham, 5 Mo. 261; Dial v. Gary, 11 S. ('. 573; S. C., 37 ercise of such power he provided that the share of a deceased daughter should go to her children and issue.

Am. Rip. 7:37. These cases sustain the proposition "In default of such will and child and children or ise

above stated. The reasoning upon which they are sue of such, then” the testator directed “the princi

based largely is that the authority of an executor is

limited to the State in which he was appointed, and pal shall go to the heirs or next of kin of the daughter so dying as provided by the intestato laws of Pennsyl, property of an estato until it has been determined

that every State should prevent the removal of the vania.” Ield, that the testator, having in apt and

there are no creditors citizens of the State who are enproper termis devised and bequeathed property to tho

titled to have such property appropriated to the pay" heirs and next of kin" of a daughter dying without

ment of the indebtedness due them in accordance with children or issue, and without exercising her power of appointment, could not be deemed to have meant by

the laws of the State in which they reside. There are those terms distributees under the intestate law, and

authorities which anuounce a different rule, and it has

been beld that a foreign executor ray assign a promthat therefore the husband of a daughter so dying had uo interest in such property. This doctrino is illus

issory note, and that his assignee may maintain an'actrated in various forms and circumstances in Patter

tion thereon in the courts of a State other than that in son v. Hawthorn, 12 S. & R. 112; Buckley v. Reed, 3

which the executor was appointed. Harper v. Butler,

2 Pet. 239; Wilkins r. Ellett, 108 U. S. 256; Rand v. Harr. 83; Gibbons v. Fairlaub, 2 l'as. 217; Eby's Appeal, 3 Norr. 241, and other cases.

Hubbard, 1 Metc. 25?; Peterson s. Chemical Bank, 32

The cases however do not at all conflict with those of the other class

N. Y. 21; (wen v. Moody, 29 Miss. 79; Story ('ouf. which hold that where technical words are used, and

Laws, $ 359. The reason upon which these cases are there is a subject to which they may apply, the tech

based mainly is that the title to promissory notes benical meaning must prevail. Thus in ('lark v. Scott,

longing to an estate vest in the executor, and that he 17 P. F. S. 446, where a testamentary disposition was

can do what the decedent could hare done in his lifemade quite similar to the one we are considering, this

time; that is, assign the note so as to vest the title in rule was strictly applied. On page 451, Sharswood, J.,

his assignee, so as to enable him, os such owner, to said: "The testator, Thomas P. Ash, after devising

maintain an action thereon against the maker in the his residuary estate, real and personal, to several per:

courts of any State in which the latter resides. This seems to us to be the better vicw, and we therefore

THE

adopt it, deeming it unnecessary to state at greater tion is groundless. Before the passing of the Judicalength the reasoning upon which the cited cases are ture Act of 1873, as the Courts of Oyer and Terminer based. Sup. Ct., Iowa, Oct. 8, 1884. Campbell v. and Gaol Delivery were not parts of the Queen's Brown. Opinion by Seevers, J. [20 N. W. Rep. 745; Bench, it was necessary that the Queen's Bench should see 26 Eng. Rep. 16.]

issue its writ bring before it the record, not to its own but to another court. But by the 16th section

of 36 and 37 Vict., ch. 66, these courts are now made LORD CHIEF JUSTICE COLERIDGE'S OPINION IN in it. The order of the court has been made to bring

part of the High Court, and their jurisdiction is vested THE MIGNONETTECASE.

the record from one part of the court into this cham.

ber, which is another part of the same court. The reoHE two prisoners, Thomas Dudley and Edwin ord is here in obedience to that order; and we are all

Stephens, were indicted for the murder of Rich-of opinion that the objection fails. It was further obard Parker on the high seas, on the 25th of July in the jected that according to the decision of the majority present year. They were tried before my brother Hud of the judges in the Franconia case there was no jurisdleston at Exeter ou the 6th of November, and under diction in the court at Exeter to try these prisoners. the direction of my learned brother the jur returned | But in that case the prisoner was a German, who had a special verdict, the legal effect of which has been committed the alleged offense as captain of a German argued before us, and on which we are now to pro- ship. These prisoners were English seamen, the crew nounce judgment. The special verdict, after certain of an English yacht cast away in a storm on the high objections by Mr. ('ollins, to which the attorney-gen seas, escaping from her in an open boat. The opinion eral yielded, as it is finally settled before us, is as fol- of the minority in the Franconia case has been since lows: (His lordship then read the finding of the jury, not only declared but enacted by Parliament to have and continued.) From these facts, stated with the been the law, and 17 aud 18 Vict., ch. 104, $ 267, is abcold precision of a special verdict, it appears suffi-solutely fatal to this objection. We are all therefore ciently that the prisoners were subjected to terrible of opinion that this objection likewise must be overtemptation, to sufferings which might break down the ruled. There remains to be considered the real quesbodily powers of the strongest man, and try the con tion in the case, whether killing under the circumscience of the best. Other details yet more harrow stances set forth in the verdict be or be not murder. ing, facts yet more loathsome and appalling, were pre- The contention that it could be any thing else was, to sented to the jury, and are to be found recorded in my the minds of us all, both new and strange, and we learned brother's notes. But this nevertheless is clear stopped the attorney-general in his negative argument --that the prisoners put to death a weak and unof that we might hear what could be said in support of a fending boy upon the chance of preserving their own proposition which appeared to us to be at once danlives by feeding upon his flesh and blood after he was gerous, immoral, and opposed to all legal principle and killed, and with the certainty of depriving him of any analogy. All no doubt that can be said has been urged possible chance of survival. The verdict finds in before us, and we are now to consider and determine terms that if the men bad not fed upon the body of what it amounts to. First, it is said that it follows the boy they probably would not have survived, and from various definitions of murder in books of authorthat the boy being in a much weaker condition, was ity, which definitions imply, if they do not state the likely to have died before them. They might possibly doctrine that in order to save your own life you may have been picked up next day by a passing ship; they lawfully take the life of another when that other is mnight possibly not have been picked up at all; in neither attempting nor threatening yourself, nor is either case it is shown that the killing of the boy guilty of any illegal act whatever. But if these definiwould have been an unnecessary and profitless act. It tions be looked at they will not be found to sustain is found by the verdict that the boy was incapable of that contention. The earliest in point of date is the resistance, and in fact made none. And it is not even passage cited to us from Bracton, who wrote in the suggested that his death was due to any violence on reign of Ilenry III. It was at one time tho fashion to his part, attempted or even so much as feared against discredit Bracton, as Mr. Reeve tells us, because he those who killed him. Under these circumstances, was supposed to minglo too much of the canonist and the jury say they are ignorant whether those who killed civilian with tho common lawyer. There is now no him were guilty of murder, and havo referred it to such feeling, but the passage upon homicide on which this court to say what is the legal consequenco which relianco is placed is a remarkable exanıple of the kind follows from the facts which they'have found. Certain of writing which may explain it. Sin and crime are objections on points of form were taken by Mr. ("ol- spoken of as apparently equally illegal, and the crime lins before he came to argue the main point in the of murder, it is expressly declared, may be committed,

First, it was contended that tho conclusion of lingua vel facto; so that a man, like Ilerothe special verdict as entered on the record, to the ef

Ione to death by slanderous tongues, fect “that this jury find their verdict in accordance would, it seems, in the opinion of Bracton, be a person with the judgment of this court,” was not put to them in respect of whom might bo grounded a legal indictby my learned brother, and that its forming part of ment for murder. But in that very passage, as to the the verdict on the record invalidated tho whole ver necessity on which reliance has been placed, it is clear dict. But the answer is twofold-first, that it is that Bracton is speaking of necessity in the ordinary really what the jury meant, and that it is the clothing sense, the repelling by violence, justified, so far as it in legal phraseology of that which is already contained was necessary for the object, any illegal violence used by necessary implication in their unquestioned find toward oneself. It is, is possible, yet clearer that the ing; and secondly, that it is a matter of the purest | doctrino contended for receives no support from the form, and that it appears from the precedents with great authority of Lord Hale. It is plain that in his which we have been furnished from the ("rown Office view the necessity which justified homicide is that that this has been the form of special verdicts in which has always been and is now considered justificacrown cases for upwards of a century at least. Next tion. “In all these cases,” says he,“ of homicide by it was objected that the record should be brought into necessity, as in the pursuit of a felon, in killing him this court by certiorari, and that in this caso no writ that assaults to rob, or comes to burn or break the of certiorari had issued. The fact is so, but the objec- house, or tho liko, which aro in themselves no felony."

case.

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1 Hale P. C. 4 aud 91. Again he says, “that the neces or his goods. In the 22d section wo are told again of sity which justifies homicide is of two kinds-first, the the case of two shipwrecked meu ou a single plank, necessity which is of a private nature; second, the with this significant declaration from a careful writer, necessity which relates to the public justice and safety. “It is said to be justifiable.” So too Dalton clearly The first is that necessity which obligeth a man to his considers necessity and self-defense, in Sir Michael own defense and safeguard, and this takes in inquir- Foster's sense of that expression, to be convertible ies, first, what may be done for the safeguarding of a terms, though he gives without comment Lord Baman's own life?” Then follow threo other heads, dot con's instance of two men on one plauk, as a quotanecessary to pursue. Lord Hale proceeds:

“As

tion from Lord Bacon, adding nothing. Again Stauntouching the first of these, namely, homicide in de forde says the necessity to justify homicide nust be fense of a man's own life, which is usually styled se inevitable, and the example he gave to illustrate his defendendo,” it is not possible to use words more clear meaning is the very same which is stated by Dalton, to show that Lord Hale regarded the private necessity showing that the necessity he was speaking of was a whioh justifies, and alone justifies, the taking the life physical necessity and self-defense and defense of another for the safeguarding of one's own to be what against physical violence. Russell on Crimes merely is commonly called self-defense. But if this could be repeats the language of the oldest books, and adds no even doubtful upon Lord Falo's words, Lord Ilale new authority or fresh considerations. Is there then himself has made it ciear. For first, in the chapter in any authority for the proposition presented to us? which he deals with the exemption created by com Among decided cases there is nono. The case of the pulsion or necessity, be thus expresses himself: “If seven Englisb sailors referred to by the commentator a man be desperately assaulted and in peril of death, of Grotius and Puffendorf bas been discovered by a and cannot otherwise escape, unless to satisfy his as gentleman of the bar, who has communicated with sailant's fury he will kill an innocent person then my brother Huddleston, to convey, if it conveys so present, the fear and actual force will not acquit of the much, the judgment of a single judge of the Island of crime and punishment of murder if he commit the act, St. Kitts, when it was possessed partly by France and for he ought rather to die himself than to kill an in partly by this country, somewhere about 1641. It is an nocent. But if he cannot otherwise save his own life, event mentioned in a medical treatise published at the law permits him in his own defense to kill the as. Amsterdam, and altogether as au authority in an Eugsailant, for by the violence of the assault and the of lish court is as unsatisfactory as possible. The Ameri fense committed upon him by the assailant himself, can case stated by my brother Stephen in his digest the law of nature and necessity hath made him his own from Wharton on Homicide, in which it was decided, protector—" cum debito moderumine inculpatie tutela." correctly indeed, that sailors had no right to throw Hale P. C. 51. But further still, Lord Ilalo in the fol passengers overboard to save themselves, but on the lowing chapter deals with the position asserted by the ground that the proper mode of determining who was casuists and sanctioned, as he says, by Grotius and to be sacrificed was to vote on the subject by ballot, Puffendorf, that in a case of extremno necessity either can hardly, as my brother Stephen says, be an authorof hunger or clothing, theft is no theft, or at least not ity satisfactory to a court in this country. The obserpunishable as theft, and some even of our own lawyers vations of Lord Mansfield in Rex F. Strullon, have asserted the same. “But, says Lord Hale, “I striking and excellent as they are, were delivtake it that here in England that rule, at least by the ered in a political trial where the question was laws of England, is false; and therefore if a person be whether a political necessity had arisen for deposing ing under necessity for want of victuals or clothes

the governor of Madras; but they have little applicashall upon that account clandestinely and animo tion to the caso before us, which must be decided on furundi steal another man's goods, it is a felony and a very different considerations. The one real authority crime by the laws of England punishable with death. of former times is Lord Bacou, who lays down the law Hale P. C. 1 and 54, If Lord Hale therefore is clear as follows: “Necessity carries privilege in itself. Neas he is—that the extreme necessity of hunger does not cessity is of three sorts necessity of conservation of justify larceny, what would he have said to the doc life, necessity of obedience, and necessity of the act of trine that it would have justified murder? It is sat God, the stronger. First, of the conservation of life, isfactory to find that another great authority, second if a man steals viands to satisfy his hunger, there is no probably only to Lord Hale, speaks with the same un felony or larceny; so if divers be in danger of drownhesitatiug clearness in this matter. Sir Michael Foster, ing by the casting away of some boat, and one of them in the third chapter of his discourse on homicide, gets on the same plank to keep himself abore water, deals with the subject of homicide founded in and another, to save his life, thrust him from it, necessity, and the whole chapter implies—and is in whereby he was drowned, this is neither se defendendo sensible unless it does imply—that in the view of the nor misadventure, but is justifiable.” Ou this it is to be writer necessity and self-defense, which he defines-as observed that Lord Bacon's proposition, that stealing opposing force to force even to the death, are con to satisfy hunger is no larceny is hardly supported by vertible terms. There is no hint, no trace of the doc Staunforde, whom he cites for it, and is expressly contrine now contended for. The whole reasoning of the tradicted by Lord Hale in the passage already cited; chapter is entirely inconsistent with it. In 1 East the and as for the proposition as to the plank and boat, it whole chapter on “Homicide by Necessity” is taken is said to be derived from the canonists. At ary rate. up with an elaborate discussion of the limits within he cites no authority for it, and it must stand upon which necessity, in Sir M. Foster's sense, is a justifica his own. Lord Bacon was great, even as a lawyer; tion or excuse for homicide. There is a short section but it is permissible to much smaller men, relying at the end (very generally and doubtfully expressed), upon principle and upou the authority of others, the in which the only instance discussed is the well-kuown equals and even the superiors of Lord Bacon as lawone of shipwrecked men on a plank able to sustain yers, to question the soundness of his dictum. There only one of them; and the conclusion left by Sir E. are many conceivable states of things in which it may East is entirely undetermined. What is true of Sir possibly be true, that if Lord Bacon meant to lay down E. East is also true of Mr. Serjeant Ilawkins. The the broad proposition that a man may save his own life whole of his chapter on “Justifiable Homicide" as by killing, if necessary, an innocent and unoffending sumes that the only justifiable homicide of a private neighbor, it certainly is not law at the present day. nature is in defense against force upon a man's person There remains the high authority of my brother Ste

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