In Luther v. Worcester, 97 Mass. 268, the defect causing the injury was snow upon a sidewalk "trodden down so as to make an oval surface, four inches thick, or mere damp snow trodden down and frozen;" this ridge was in the middle of the sidewalk, while on either side the walk was clear. The accident was on Monday, the snow fell on Saturday. The court of first instance ruled that the evidence was insufficient to maintain plaintiff's case and a verdict was ordered for defendant. This ruling the court on appeal reversed and granted a new trial. The court pointed out that Stanton v. Springfield, supra, only went the length of holding that a way properly constructed and kept in such condition as to be reasonably safe and convenient for travel, at all seasons of the year, would not become defective by reason of the fact that it was covered with a smooth and even surface of ice which rendered it slippery. A similar case was Hutchins v. Boston, 97 Mass. 272, where the ice on the sidewalk had been allowed to become uneven and rounded so as to present a narrow surface from three to four inches higher in the center of the strip of ice than at its sides. The court said: "This evidence should have been submitted to the jury with instructions that the defendants would not be liable merely because there was ice on the sidewalk which was smooth and slippery, by reason whereof the plaintiff fell, but that the city could be held liable only in case the jury should find that in addition to the smooth and slippery condition of the ice it was allowed to be in such an uneven and rounded condition on the surface that a person could not walk over it, using due care, without being in danger of falling down." To same effect see Stone v. Hubbardston, 100 Mass. 49. Billings v. Worcester, 102 Mass. 329 (3 Am. Rep. 460), must rest, as in fact it was placed, solely upon the statute under which it was decided. This statute provides that, "if any person shall receive an injury in his person or property by reason of any defect or want of repair which has existed for the space of twenty-four hours in any highway," he may recover compensation therefor. The plaintiff slipped and fell on ice on the sidewalk, which had accumulated from a defective conductor or from the eaves of a building adjacent to that portion of the walk. The court charged in substance the rule laid down in Stanton v. Springfield, and also that smooth ice, "not broken up in unevenness," may be a defect; and that the question of defect or no defect in such case would depend upon the manner in which the result or condition of the street was produced, whether by general causes affecting a whole town or neighborhood alike, or by some special local cause. On appeal, this ruling was held erroneous - Colt and Ames, JJ., dissenting. The court said: "The existence of the defect and the lapse of twenty-four hours, or a less time, with reasonable notice of the defect, complete the conditions of liability. It is of no consequence whether that which constitutes the defect arose from

causes for which the town is responsible and over which it had control, or from natural or general causes."

The case of Mosey v. Troy, 61 Barb. 580, was similar to the above. The ice upon which plaintiff fell was an accumulation from the freezing of water flowing from a house-conductor upon the sidewalk. The evidence tended to show that it had remained there long enough to warrant the jury in attributing negligence to the defendant for its continuance, and at the time of the accident was covered with a light fall of snow, which concealed it from the plaintiff's view. The court held that the question of negligence on the part of the city was properly submitted to the jury, and affirmed the judgment for the plaintiff. See to same effect Mayor v. Marriott, 9 Md. 160.

In Durkin v. Troy, 61 Barb. 437, the plaintiff fell on a patch of glare ice, not extending across the walk, and of inconsiderable extent. He knew of its existence prior to the accident. A verdict in his favor was very properly set aside. See also Landolt v. Norwich, 11 Am. L. Reg. (N. S.) 383.

In Cook v. Milwaukee, 24 Wis. 270 (1 Am. Rep. 183), it was held that mere slipperyness from a smooth surface of snow and ice on a sidewalk was not such a defect as would render a city liable. It was alleged that the walk had been rendered dangerous from the overflowing and freezing of water pumped into the street by one of the defendants' fire engines, and which water the gutter was insufficient to carry off. The court remarked: "It does not appear that the condition of the gutter was such that it would not discharge and carry off all the water flowing or accumulating there from natural causes. If it was in a condition to have done this then, we think, the city ought not to be held responsible for the consequences of such an extraordinary occurrence as the wrongful pumping upon the street of a large quantity of water, or the wrongful accumulation of water there by other artificial means, unless it should appear that it was guilty of some subsequent negligence or default in not repairing the sidewalk which had thus become impassable and dangerous for travelers."

The most recent reported decision that has come under our notice is that of Collins v. Council Bluffs, 32 Iowa, 324. The only fact given as to the condition of the walk is this from the opinion: "The snow had not been removed from the pavement when the accident occurred. It was, to some extent, thawed during the day-time, and as there was a great amount of travel along the sidewalk-the street being the principal thoroughfare of the city- the pavement became covered with ice, uneven and irregular upon its surface, thus rendering the locality difficult and unsafe for foot passengers." A verdict for plaintiff was upheld. The court said: "The deposit of snow from natural causes in the streets, if negligently permitted by the city to remain, and damage to one

using the street results therefrom, renders the city liable."

It should be observed that in order to enable one to recover for injuries received in such cases, he must himself be free from fault or negligence. But the fact that a person injured through a defect in a highway had previous knowledge of the defect is not conclusive evidence of negligence on his part. Reed v. Northfield, 13 Peck. 94; but see Hubbard v. Concord, 35 N. H. 52.

It must also be shown that the defendant had notice of the defect, but express notice need not be proved, if facts be shown from which notice may be reasonably inferred, or from which it may appear that the defect ought to have been known and remedied. Dewey v. Detroit, 15 Mich. 307; Mayor v. Sheffield, 4 Wall. 189; Davenport v. Ruckman, 37 N. Y. 568; Colley v. Westbrook, 2 Am. Rep. 30.

In such an action the damages should be compensatory only, not vindictive nor punitive. Chicago v. Douglass, 4 Am. Rep. 603; Chicago v. Martin, 49 Ill. 241. In the case of Collins v. Council Bluffs, supra, the plaintiff had her thigh broken, rendering her a cripple for life, and a verdict for $15,000 was sustained by the court as not excessive compensatory damages.

LAWYERS AND DOCTORS.

The similarities and differences of the legal and medical professions are becoming constantly more important. The lawyer is designed to serve man in his social or relative state, the doctor to serve him in his individual or absolute state. The one includes in his practice commercial law, the other physiological law; the one deals with external and relative ills, commercial diseases, ills interpersonal, interstate, international; the other treats internal and individual ills, bodily diseases, and professes to set right the whole human system when it gets wrong or out of order. While doctors study the science of man as an organic and individual being, lawyers study the science of man as a component part of a great social organism, as a citizen of a State, as a fraction of the great integer of society. The doctor's science is then a simple one, the lawyer's a compound one; for although man is, in himself, a complex being and a wondrous combination of physical, emotional and mental forces, yet that system which we call society and which is the result of an organization of organisms, is still more complex. The whole is always greater than any one of its parts; and the multiplicity and intricacy of the relations of mankind in a civilized and organized state is a necessary consequence of the complex and intricate nature of the individuals which constitute humanity. The lawyer's science is therefore superior to that of the doctor in the abstract; for law is essentially a later and greater development than medicine. Medicine and physiology are but

some of the materials out of which law and jurisprudence are made. Practically, however, the doc

tor's science must be farther advanced than that of the lawyer's, for the materials must be furnished before the building can be constructed, and law, which is the "science of sciences," must have the best and latest results of every other science before it can reach its ideal perfection. But, just as the chief-architect and designer of an edifice is superior to the workmen, who execute the details, and just as the science of the former is grander and broader, more general and more elevated than that of the latter, so is the statesman or the jurist who devises laws for the government of a great humanity, in its political and commercial relations, superior to the mere observer of physical phenomena, the scientist or the physicist, and so is the science of the former greater and more complex than that of the latter. Physical and medical science may be always the more perfected and the more definite, but jurisprudence being conversant about society, the State, commerce, and international intercourse, although necessarily imperfect, is always great in its subject-matter, and, by the law of evolu tion is always progressing toward a perfection, which shall include in itself the perfections of all sciences. The relative greatness of the two professions being thus determined by a reference to their subject-matter, it may be proper to note their relative essentiality. According to the old maxim, which seems to be accepted by all men practically, and by all schools of philosophy theoretically, "self-preservation is the first law of nature." If, therefore, a man is in danger of losing his life, and he needs the assistance of a skillful person, he will employ the members of that profession which is most likely to afford him relief. Now, more men are daily threatened with death by disease and accident, than by operation of law, or from the alleged commission of capital crimes. That profession, therefore, which by its knowledge and skill can save a man from a death to which disease or accident, physiological or mechanical causes, are hurrying him, must be more essential to humanity than that profession which is only occasionally called upon to save an innocent man from the gallows. The doctor deals with life and death, health and sickness, with conditions which are almost universally pre-requisites to human happiness. If he fail to exercise the proper or the possible skill and care which his science would demand in its application, the results may be essentially fatal. And the same may be true if he makes a medical mistake or performs an unnecessary operation. The responsibility of the physician is as great and peculiar as his business is essential. Not so with the lawyer's responsibility or business; in the vast majority of cases, a mistake in judgment, a want of skill, or energy, or care, generally entails, at most, but a loss of property, or liberty, or some other personal inconvenience. The legal profession is not, therefore, an essential in the

physician should take the side of death instead of life, of disease instead of health, in a patient's case. They should tell us, rather, that the conduct of a judge who should decide wrongfully is like that of the physician who administers wrongfully. The likeness is between the judge and the doctor in an ethical point of view.

In the second place the illustration of the judicial character of the medical profession is useful to prove that consultation, research, investigation, is essential to doctors; and that association of thought and effort should be oftener practiced among them than at present, both for the sake of themselves and their patients. As it is now, some of the least points of law engage the united attention, research and deliberation of a half a dozen judges or a score of law lords, while some of the most delicate, important and vital points in the diagnosis and cure of diseases, are decided and acted upon by a single physician, who takes his own independent judgment, without calling even a council of neighboring physicians, and from whose individual decision and action there is no appeal, it being either too late or irrevocably executed. The relation of medical science to law, alone, would form the subject of an article sufficiently long for these columns; and the lawyers and doctors in their relation to each other may be the theme for a future paper in the LAW JOURNAL.

CURRENT TOPICS.

John H. Reynolds, of this city, has been appointed and confirmed a commissioner of appeals in place of Judge Leonard, resigned. He is a lawyer of distin

guished ability, and we doubt if one better fitted for the position could have been found in the State. While, as a rule, a good advocate is not apt to make a good judge, yet when, as in the case of Mr. Reynolds, the advocate has confined his attention to, and won his distinction in, the argument of questions of law before courts in banc, the rule is reversed. For years Mr. Reynolds has been recognized as one of the very ablest of the counsel appearing at the bar of the court of appeals, and his great success there has made him a favorite counsel with attorneys from all

parts of the State. His thorough legal knowledge and great logical powers will make him one of the strongest judges on the bench of the commission.

The chief justice of the Sandwich Islands, who is for the present acting as regent, is a YankeeElisha H. Allen by name. He was born in Massachusetts, migrated to Maine, and became a prominent lawyer in Bangor. He at one time represented his district in congress, but was finally defeated by Hannibal Hamlin, and was soon after sent to the Sandwich Islands as United States consul. He was there appointed chief justice, which position he has acceptably filled for many years.

The senate, last week, acquitted Judge Prindle of all but six of the charges against him; and the six being of a venial character, seventeen of the twentyfour senators who voted, voted against his removal. The case of Judge Curtis was then taken up and the final arguments heard, but at the time of going to press, no vote had been taken.

The circuit judges of Michigan held a session at Lansing last week and adopted uniform rules of circuit court practice. One of them is a unique departure from the usual system. It provides that counsel for the defense are to open their case immediately after the plaintiff's opening, and before the evidence is taken on either side.

The Russian World publishes an article on law reform in Russia, including the introduction of trial by jury, from which it appears that a jury is subject to some evils not usually looked for in the "box of peers." It seems, a witness appeared to give evidence in a case on trial at Simbirsk, and on leaving the court, found that his great coat had been removed from the vestibule. After some investigation, it turned out that a juror had purloined it, and pawned it at an inn for his dinner. It is not to be wondered at that Russian juries have proved very lenient with thieves and rascals, for "a fellow-feeling," etc. But it is suggested by the World that peasants be excluded from the panel, unless they are specially recommended for the same.

There is quaint old custom in England, and which has come to have the force of law, to the effect that no one is eligible to a judgeship in the superior courts at Westminster unless he shall first have attained to the rank of sergeant-at-law. Mr. Archibald was lately appointed a judge of the queen's bench, and the London Globe gives an account of his elevation to the sergeantship. Mr. Justice Archibald was made a sergeant according to the ancient custom, and gave gold rings to all kinds of great people, and finally

appeared at the bar of the court of common pleas as counsel for one apocryphal, Ann Winne, widow, who sued out a writ of dower (they call it a real action, though it was only a sham). How a passage was made right through the bar benches; how the new sergeant, in a purple cloth gown of ancient cut, and a full bottomed wig of tremendous proportions, came slowly to the front and addressed their lord- | ships in solemn tone; how their lordships struggled bravely to keep grave, and how Mr. Justice Brett at last gave up gravity as hopeless; how Mr. Sergeant Ballantine and Mr. Sergeant Parry, who had some mystic rights to perform in connection with the proceedings, managed to keep as grave as undertakers, thereby sending half the spectators into fits; to narrate all these things in full would occupy too much space. After this comical ceremony was completed, the new sergeant donned the ermine, and proceeded to the court of queen's bench and took the judges' oath.

At the annual meeting of the New York Bar Association most of the officers of the past year were re-elected, including the president, Mr. W. M. Evarts. The reports showed the following: Receipts for general fund, $24,787; for the Judiciary Investigation fund, $27,870, deficiency in latter fund, $1,038; number of volumes in library, 6,025; amount expended by library committee, $19,254. A committee was appointed to urge the passage of the code amendments devised by the Association. Mr. J. M. Van Cott made some very ill-tempered and undignified remarks if the report does not belie him cerning the fact that the speech which Mr. Field had attempted to deliver some weeks ago, amid the confusion and cat-calls of the Association, had been

con

been obtained by fraud, was held to be no bar to an action in a State court, notwithstanding it had not been set aside in proceedings for that purpose. In Batchelder v. Low, 5 Am. Rep. 311 (43 Vt. 662), it was held that a discharge in bankruptcy, obtained after the commencement of an action on a promissory note provable as a debt under the bankrupt act, when pleaded in bar of such action, may be attacked therein.

In Houghton v. The First National Bank, 26 Wis. 663 (to appear in 7 Am. Rep.), the cashier of the bank, for the accommodation of the payee or prior indorser, indorsed his name upon a note not belonging to the bank, as "A. B. Cas.," and the court held that the indorsement was official, not personal, and sufficient in form to bind the bank. So in Means v. Swormstedt, 2 Am. Rep. 330 (32 Ind. 87), where the secretary of an incorporated company gave a promissory note, using the words "we promise to pay," and signed it with his own name with "sec'y" affixed, and impressed thereon the seal of the corporation, he was held not to be personally liable. And in Hale v. Peirce, 3 Am. Rep. 139 (32 Md. 327), in an action on a note made by the officers of a railroad company, reading, "We, the president and directors of," etc., "promise to pay," and signed C., "president," H. and D., "directors," and S., "secretary," it was held that parol evidence was admissible to show that the drawers of the note signed it as agents of the company, and not as individuals. In accordance with these decisions are Lafayette Bank v. State Bank, 4 McLean, 208; Bank of Genesee v. Patchen Bank, 13 N. Y. 309; Burnham v. Webster, 19 Me. 232; Mechanics' Bank v. White Lead Co., 35 N. Y. 505, and a number of other cases which we have not room to cite. But the authorities are not harmonious. The

NOTES OF CASES.

In Ocean National Bank v. Glcott, 46 N. Y. 12, it was held that a discharge in bankruptcy cannot be impeached in a State court on the ground that it had been improperly granted, and to the same effect is Corey v. Ripley, 2 Am. Rep. 19 (57 Me. 69), wherein it was alleged that the discharged in bankruptcy pleaded by the defendant was invalid for the reasons set forth in section 29 of the bankrupt act of 1867. The court said: "The authority conferred by the bankrupt act of 1867 upon the United States courts, to set aside and annul a discharge in bankruptcy, is incompatible with the exercise of the same power by a State court." On the other side, it was held by the superior court of Cincinnati, at general term, in Perkins v. Gay, 3 B. R. 189, that a fraudulent concealment of his property by the bankrupt could be set up against his certificate of discharge in whatever court he may plead it. In Beardsley v. Hall, 4 Am. Rep. 74 (36 Conn. 270), a discharge, which it appeared had

Albany Law Journal, 71.

In Houghton v. Ely, 26 Wis. 181, a person not a party to a non-negotiable note, indorsed it in blank at the time it was made and delivered to the payee. It was held that such person was liable on the note as a joint maker, and that his contract was not void under the statute of frauds. This decision is in conflict with Brewster v. Silence, 8 N. Y. 207, wherein the defendant had guaranteed a negotiable promissory note, to which he was not a party, in these words: "I hereby guarantee the payment of the above note." The court held that the guarantor was not a joint maker and that the guaranty was void under the statute of frauds, no consideration being expressed. In Church v. Brown, 21 N. Y. 315, Comstock, C. J., expressly disapproved of the decision in Brewster v. Silence, but four of the judges agreed with Wright, J., who thought the two cases distinguishable, and in the first case cited, Dixon, C. J., held, after an elaborate examiination of the authorities, that Brewster v. Silence was unsupported either by principle or authority.