The one element in the School that does not increase, and probably will not increase, is the element that stays longest, the contingent of Harvard men from Massachusetts. The recent growth has been chiefly among those who normally leave early. This indicates that the school is enlarging its field. There is every reason for being glad that the Harvard graduates, for two successive years, have been outnumbered on their own ground by men from other colleges; but this also means that the third year cannot with any reason be expected to increase proportionately.

A further step has been taken toward stiffening the requirements of the School, and, incidentally, toward diminishing its numbers. As the rules stood at the beginning of 1891-92, no special student could return to the School who had not passed in at least three subjects at the end of his first year. Last spring this was amended; no one, whether regular or special, was allowed to return unless he had passed in three subjects at the end of his first year. But if a man stood the test then, there was nothing to prevent him (if a regular student) from remaining a member of the second year as long as he liked. The restriction has now been made general. No student whatever, in any class, can come back unless he passed in at least three subjects at the preceding examinations. This cuts off men who make a bad failure in the third year, but return to try again for the degree.

By this change, not only the same requirements for entrance,' but the same rules as regards remaining apply to regular and special students throughout. Henceforth, therefore, no particular reference will be made in the catalogue to the latter, and, for all practical purposes, they will disappear. If a man who is qualified to join a regular class prefers to call himself a special, and be registered as such, he can do so, but he will gain by it no advantage whatever.

The New York Court of Appeals has adopted a new rule in regard to candidates for admission to the New York Bar. Time spent at a law school will not be accepted in lieu of any part of the three required years of clerkship, unless a certificate is presented from the school stating that the student's attendance has been regular throughout the entire period covered.

This has necessitated an arrangement by which men who intend to apply for admission in New York, register every day at the office in order to qualify themselves for a certificate, a decided innovation.

The Law School Association prize for 1891-92 was not awarded. In consequence, the same three subjects are offered again, namely:

(1) The rights and remedies of a corporation or its stockholders in respect to contracts ultra vires.

(2) To what extent is equity a system, not merely of remedies, but of rights ?

(3) The fictions of the law: have they proved useful or detrimental to its growth?

The competition is open to members of the present third-year class, or graduates of last June. No essay is expected to contain more than fifty pages of manuscript of legal quarto size, and none will be received after

1 See 6 Harvard Law Review, 99, May, 1892.

April 15. The address of the Secretary of the Association is 220 Devonshire Street, Boston.

The report has been widely circulated that the Harvard Law School tried and failed to secure the entire library of the late N. C. Moak, Esq., which is to go to Cornell. There is no truth in this. The School did not make any such effort, because by far the greater part of Mr. Moak's library in particular the foreign and colonial reports would have duplicated what is either already on the shelves at Cambridge, or is to be there very shortly.

Among the acquisitions picked up in England this summer by Mr. Arnold is a set of English, Scotch, and Irish peerage reports, which, with one exception, is probably the most complete in existence. It numbers about three hundred volumes, many of them in manuscript.

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DAMAGES FOR MENTAL SUFFERING. In view of the progress that has been made in recent years in clarifying the subject of damages for mental suffering and extending their scope, it is a disappointment to find the latest case (Chapman v. Western Union Tel. Co., 46 Alb. Law J. 409) losing sight of fundamental distinctions which seemed to be at last clearly established. The plaintiff in this Georgia case is the sendee of a telegram which informed him of the desperate illness of his brother, and requested him to come. The message was delayed, in consequence of which the brother died before the plaintiff's arrival, and this action is for the statutory penalty plus damages for mental suffering. To so much of the petition as relates to damages for mental suffering the defendant demurs, and the Supreme Court holds that the demurrer was rightly sustained, — properly enough, since in Georgia failure to deliver a telegram is not in itself, apart from the statutory penalty, a cause of action for the sendee; and mere suffering, whether mental, physical, or pecuniary, gives no right to recompense unless some right is infringed.

But the court is not satisfied merely to decide the case. They go on to deny the existence of any general rule allowing damages for mental suffering. They explain the cases where such damages were allowed by the old law, such as assault and false imprisonment without contact, on the ground that the offence in these cases is wilful, and the damages punitive. They then cite cases denying the right to recover for mental suffering in cases much like the one at bar. Undoubtedly the old law would have precluded damages for mental suffering in such a case, even if there had been a right of action, as there would have been if the plaintiff and

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sufferer had been the sendor. If they had followed this older rule with a clear understanding of the ground on which the rule that is now so widely adopted rests, we could find fault only with their judgment.

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Why go on, however, with objections that have been answered with the greatest clearness, perhaps nowhere more clearly than in a book they quote themselves, only to misunderstand, — Sedgwick on Damages. "In Lynch v. Knight, 9 H. L. Cas. 557, Lord Wensleydale expressed the opinion that when the only injury is to the feelings, the law does not pretend to give redress. Though Mr. Sedgwick (Dam. § 43 et seq.) seeks to restrict this language to the case then before the court, and disputes its accuracy as a general proposition, it may be doubted whether the learned author is

able to cite a single case sustaining his contention. He does refer to a number of cases, but in all of them the pain may be viewed as an accompaniment or part only of some substantial injury entitling the party to compensation.' Of course that is exactly what the text-writer says, if "substantial" be left out; and if that adjective be emphasized, the statement is untrue; as in many of the recent telegraph cases the only large element of damages is mental suffering.

The court then indulges in some more general criticisms. "How much mental suffering shall be necessary to constitute a cause of action? Let some of the courts favoring recovery measure out the quantity." The courts all admit that an infinite quantity of suffering of any kind cannot in itself constitute a cause of action. It seems hopeless to hammer at a distinction so clear as the difference between the proposition that the infringement of an actionable right should be compensated by damages for all the proximate injury of any kind resulting to the person whose right is infringed, and the untenable proposition the court mixes up with it, that suffering alone can constitute a cause of action. The Georgia court seems to have seen this distinction just clearly enough to explain how completely they misunderstood it: "It is said there must be an infraction of some legal right, attended with mental suffering, for this kind of damages to be given. If this be true law, why is not the mental distress always an item to be allowed for in the damages? Why not indeed? That is just what the new rule is. "Throwing away the lame pretence of basing recovery for mental suffering upon an otherwise harmless transgression, and stripping it of all false form and confusing technicality, it is manifest that to allow such a recovery is, in real substance, an effort to protect feeling by legal remedy." Truly it is; but as long as our law is what it has always been, we must grope with such "confusing technicality" as the difference between the presence and the absence of a right infringed. The failure of the court to seize this concept at a time when it is so important, so much noticed, and so clearly explained in the authorities cited by the court itself, is matter for surprise. It is perhaps unlikely that these elaborate dicta will be followed in Georgia. The nearest prior case in the State is one allowing damages for physical suffering. Cooper v. Mullins, 30 Ga. 146.

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THE TRUE LIABILITY OF A MANUFACTURER FOR LATENT DEFECTS. The Supreme Court of Minnesota have recently decided, in the case of Schubert v. F. R. Clark Co., 5 N. W. Rep. 1103, that a manufacturer who, through retail merchants, puts on the market an article which to his knowledge contains latent defects liable to cause injury, must answer fc injury caused by his negligence to one into whose hands the article naturally comes for use, even though there be no contract relation between the latter and the manufacturer.

On this question, both in England and the United States, there is a peculiar conflict between authority and principle. In the much overworked case of Winterbottom v. Wright, 10 M. & W. 139, the Court of Exchequer do not say that if the declaration had stated a breach of duty to the plaintiff, rather than a breach of a contract with a third person, the decision would have been in favor of the defendant. In the case of George v. Skivington, L. R. 6 Exch. 1, the judges simply


extended the right of action for a tort to a stranger, to the contract of sale, provided he was specifically named in the contract. They should either have gone farther, or not so far; the result is sound, but the reasoning illogical.

In the United States, the case of Thomas v. Winchester, 6 N. Y. 397, is a leading one; but in it, as in the English cases, the underlying theory is thoroughly unsatisfactory. The decision proceeds on the ground that the defendant's negligence put human life in imminent danger. This may be advanced as an argument for requiring a greater degree of care than if the article manufactured and sold were not so dangerous, but it certainly is no reason for limiting the class of persons to whom that care is owed.

In this misleading state of authority it has been suggested that the rule of George v. Skivington should be extended to injured persons not specifically in the vendor's mind at the time of sale, provided such persons were members of the class by whom the vendor intended the article to be used, or by whom he might reasonably have contemplated that the article was likely to be used. The decision in Schubert v. Clark will be welcome to those to whom this seems the only reasonable and logical ground on which to rest the cases.

A WIFE'S RIGHT TO BE MISTRESS OF A HOME. -The case of Shinn v. Shinn, 24 Atl. Rep. 1022, has a head-note suited to interfere with the hopes of young lawyers of larger heart than practice. Mary B. Shinn filed, in the New Jersey Court of Chancery, a bill for support against her husband. Two weeks after his marriage Mr. Shinn had imported his bride into the home of his parents, a house already equipped with his father, mother, brother, sister, nephew, and niece. In this dwelling the young couple had a well-appointed bedroom, a piano in the parlor, and two seats at the family board. After a year's experience the wife removed herself and child to the home of her aged grandfather, alleging ill-treatment by her husband and family. There is no proof of this; and the result of the slight evidence seems to be that there was nothing beyond a general unpleasantness, in which the husband sympathized with his family. In the wife's brief correspondence with her husband after her departure, her only complaint is that she is not mistress of the house. Her husband offers, with natural coolness, to take her back; which she refuses, unless he will furnish her a house of her own, even if it consists of no more than two rooms.

After the complainant had rested her case, Mr. Shinn expressed willingness to provide a home. The further hearing was suspended; but when the Vice-Chancellor examined the new dwelling he decided that such a barely furnished shanty was a mere subterfuge, in the case of a man with circumstances as comfortable as those of Mr. Shinn. So Mr. Shinn is to pay alimony.

The head-note reads: "1. Every wife is entitled to a home corresponding with the circumstances and condition of her husband, over which she shall be permitted to preside as such wife, and it is the duty of the husband to furnish such home.

2. A house over which others have entire control, and in which the husband and wife reside as boarders simply, is not such home."


The second part of this is startling enough. The notion that every wife has a right to keep house is one of which the general recognition would work a revolution in the domestic history of the race.

Its effect on

life in New York city, for instance, is rather hard to conceive. However, there is less ground for panic than one thinks at first, for the Vice-Chancellor's words are less sweeping than those of the maker of the headnote. "The correspondence shows that all Mrs. Shinn desired was a home in which she could be mistress. This every wife is entitled to." Mr. Shinn, however, "insisted upon the condition that she must either come back to him and live with him as a boarder, in the home of another," or in the shanty above referred to. There is nothing here to show that a suite in a Fifth Avenue boarding-house, where the landlady was no relative of the husband, might not have been a home over which the wife could satisfactorily preside as mistress. Still, the language is absurd enough, and the court does not mention an authority in the whole case. Surely none could be found for the proposition that the single fact that the husband forced his wife to "live with him as a boarder in the house of another" is ground for separate maintenance. Very possibly there may be facts in the case making the decree justifiable; but the language of the court, and still more that of the maker of the head-note, needs revision.


AGENCY-ASSAULT ON SEAMAN BY CAPTAIN. - The owners of a vessel are not liable, even under the maritime law, for a wilful and malicious assault by the captain of the vessel on a seaman who refuses to obey a command on the plea of sickness; since, in committing the assault, he exceeds his authority. His command does not extend over the persons of the seamen beyond the infliction of usual and necessary punishment in case of disobedience or infraction of rules. 14 N. Y. Supp. 125, and 15 N. Y. Supp. 976, reversed. Maynard, Finch, and O'Brien, JJ., dissent. Gabrielson v. Waydell et al., 31 N. E. Rep. 969 (N. Y.).


PRINCIPAL AS Preferred CreDITOR. — Held, reversing the decision of the lower court, that when money of A, the principal, is mingled with that of B, the fiduciary, and A cannot identify his property in some form, mere enrichment of B's estate does not entitle A to be made a preferred creditor. Northern Dakota Elevator Co. v. Clark, 53 N. W. R. 175 (N. D.).

The case and the language of the court seem wrong. For if A, who trusted, not to B's solvency, but to his honor, can prove the fund for distribution is larger because of B's misappropriation, there is no reason why the general creditors should get the benefit of it at A's expense. Cf. Peak v. Ellicott, 30 Kan. 156; Harrison v. Smith, 83 Mo. 210; Bowers v. Evans, 71 Wis. 133.

CARRIERS-LIABILITY AS Warehousemen PROXIMATE Cause. Goods transported by defendant, a common carrier, were placed in its depot on arriving at their destination. The consignee inquired for them on the following day but was told they had not arrived. While in the depot they were destroyed by fire. Held, that the company was liable for the value of the goods, as it was owing to its negligence in not delivering them, when demanded, that they were there to be destroyed. East Tennessee, V. & G. Ry. Co. v. Kelly, 20 S. W. Rep. 312 (Tenn.).

Compare 54 N. Y. 500, and 13 Gray 481. The latter case, representing the weight of authority, held that the defendant was not liable on facts similar to the above.

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CONSTITUTIONAL LAW APPORTIONMENT OF STATE INTO LEgislative DISTRICTS. The Constitution of New York provides that, on a legislative apportionment, "each senate district shall contain, as nearly as may be, an equal number of inhabitants, and shall at all times consist of contiguous territory; and no county shall be divided in the formation of a senatorial district except such county shall be

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