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stood to be otherwise." This was, of course, a playful exaggeration; but it is true that the novelty of a proposition did not furnish to his mind a prima facie presumption against its adoption. He not unfrequently advanced theories which, at the time, struck the profession as heretical. But not a few of these heresies ultimately came to be regarded as "orthodoxies." In more than one instance where he originally stood alone as a dissenter, the entire Court subsequently adopted his views. From the multitude of his opinions it is difficult to select any single one which will give an adequate idea of his power. Some of his most forcible sentences are to be found in that part of the dissenting opinion in Boardman v. Woodman, 47 N. H. 120 (see especially pp. 148 and 150), where he combats the prevailing theory that delusion is the legal test of insanity. His strong sense of humor crops out in the opinion in De Lancey v. Ins. Co., 52 N. H. pp. 587 to 591. A few years ago, when the arguments and influence of the insurance companies seemed certain to defeat a bill pending in the Massachusetts Legislature, a member rose, with "Fifty-second New Hampshire" in his hand, and said that he should like to read to his colleagues the opinion expressed by the Supreme Court of New Hampshire relative to insurance companies. Before the reading had progressed far the House was convulsed with laughter, and there was no effective opposition to the passage of the bill.

During Judge Doe's long term of service, a great revolution took place in the legal procedure of the State; a change which was due to him more than to any other one man (although great credit must also be given to his colleague, the late Chief Justice Bell, who drew up the admirable "Rules for Regulating the Practice in Chancery," 38 N. H. 605-624). Instead of waiting for the legislature to enact a poorly drawn code, the New Hampshire Court proceeded to simplify practice by their decisions; not merely by discouraging formal objections, but by boldly declaring that "parties are entitled to the most just and convenient procedure that can be invented," and by distinctly recognizing "the judicial duty of allowing a convenient procedure as a necessary instrument of the administration of the law of rights." (See the very able opinions in Metcalf v. Gilmore, 59 N. H. pp. 431 to 435; and in Owen v. Weston, 63 N. H. pp. 600 to 605.) The result is a flexibility of remedies in New Hampshire not surpassed by any of the so-called "Code States." But more than all this was the general tone imparted to legal proceedings by Judge Doe's strong personality. Until his memory is forgotten, cases in New Hampshire will be tried expeditiously and upon their merits; justice will not be "strangled in the net of form "; and witnesses will not be subjected to insulting and abusive treatment at the hands of cross-examiners. His mode of living and all his habits were democratic and simple in the extreme; and his love of simplicity led him, when presiding alone at nisi prius, to go far towards abolishing the mere forms and ceremonies which are usually observed in the court-room. But there was no omission of any incident of procedure which was really essential to the rights of suitors. Socially, Judge Doe was one of the most delightful of men. He did not reserve himself for great occasions, but always abounded in good sayings. Few persons have ever spent an hour in his company without carrying away something to remember him by. His intimate friends of many years are now like men" from whose day the light has departed."

J. S.

THE GETTYSBURG RESERVATION. In one of his first opinions at Washington Mr. Justice Peckham has had an opportunity of showing how he deals with cases which call for a decision as to the constitutionality of a statute. At the present day when there seems to be a tendency to forget that the courts have only a limited power in dealing with acts of the legislature, it is a matter of some significance that the latest member of the Supreme Court should assume a conservative, discriminating attitude, and should declare, as did the earliest interpreters of the Constitution, that the court should interfere only in a clear case. The duty and the discretion of making laws has been intrusted to the legislature, and an act, said Mr. Justice Peckham, " is presumed to be valid unless its invalidity is plain and apparent. No presumption of invalidity can be indulged It must be shown clearly and unmistakably." (United States v. Gettysburg Electric Ry. Co., 16 Sup. Ct. Rep. 427.)

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The question before the court concerned the constitutionality of an Act of Congress providing for the condemnation of portions of the battlefield at Gettysburg and for the erection of tablets to mark the lines of the battle "with reference to the study and correct understanding of the battle." It was objected that there was no clause in the Constitution which gave Congress the right to condemn land for such a purpose, but the court decided that express authority was not necessary. "The power," it was said, "to condemn for this purpose need not be plainly and unmistakably deduced from any one of the particularly specified powers. Any number of these powers may be grouped together, and an inference from them all may be drawn that the power claimed has been conferred." While the result is acceptable, it would seem that the court might have avoided this somewhat unfortunate appearance of making something out of a sum of nothings; the case, it is submitted, might have been put on the broad ground that this falls within those powers which belong to the national government by the very reason of its being a government. In creating the national government, the Constitution necessarily conferred those powers which governments generally possess for their administration and self-protection; and it may well be said that the fostering of a national spirit is a proper function for a government whose strength lies in the loyalty of its citizens. If, however, a specific authority from the Constitution were still called for, the power "to raise and support armies" might well, as the court intimates, include the power to cultivate patriotism and to aid the study of military tactics.

COLLEGE DEGREES JUDICIAL INTERFERENCE WITH FACULTY ACTION. -The power of college authorities in the matter of granting degrees is generally regarded as absolute. For a disappointed student to take his case to the courts is therefore somewhat surprising. Yet this has occasionally been done, and a comparison of the few decisions is interesting. Curiously enough, the New York Supreme Court has been called upon three times within five years to pass on an application for a mandamus to compel the granting of a degree to a student. In People v. N. Y. Homeopathic Medical College &c., 20 N. Y. Supp. 379, and in People v. N. Y. Law School, 68 Hun, 118, the application was refused, the court remarking, in the latter case, that a college faculty is vested with broad discretion as to the persons to be recommended for a degree, and that the case must be an extraordinary one to justify judicial interference. On

the other hand, in People v. Bellevue Hospital Medical College, 60 Hun, 107, the mandamus was granted, on the ground that the refusal to bestow the degree was arbitrary, and that it was not a case of the exercise of discretion. See 5 HARVARD LAW REVIEW, 205.

The statement of the court in the last named case to the effect that, when a student matriculates according to the terms of the published circular of the college, a contract arises, seems open to objection. That the relation between student and faculty is not contractual has recently been decided in England. In the case of Green v. Master and Fellows of St. Peter's College, Cambridge, reported in 31 Law Journal, 119, the plaintiff, who had been expelled from the defendants' college, brought an action for breach of contract, advancing the proposition that a student, on entering a college, enters into a contract with the college authorities, who agree, in consideration of his obeying all lawful rules and paying fees, to allow him to reside at the college for the length of time necessary for obtaining a degree, and to do all things requisite to enable him to obtain such degree. Mr. Justice Wills held that there was clearly no such contract, and that the case did not justify judicial interference. This decision, which finds some support in the interesting case of Thomson v. University of London, 33 Law J. Rep. Ch. 625, seems eminently sound.

That courts are very loath to interfere with the exercise of discretionary powers by college authorities is shown by several American cases in which aggrieved students have vainly sought relief at law from disciplinary measures adopted by faculties. See People v. Wheaton College, 40 Ill. 186; North v. Trustees of University of Illinois, 137 Ill. 296; Dunn's Case, 9 Pa. Co. Ct. Rep. 417.

People v. Bellevue Hospital Medical College, supra, appears to stand alone. Whether a mandamus should issue even in such a case may perhaps be doubted. And yet it seems only just that the student should have a remedy. Fortunately, the rarity of such arbitrary action on the part of college authorities renders the question one of speculative rather than practical interest.

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JUDICIAL OPINIONS LONG DRAWN OUT. The opinion of the House of Lords in Angus v. Dalton, 6 Ap. Cas. 740, occupies an unusually large space in the reports; but the striking importance of the case is certainly ample justification for such exhaustive treatment. Where, however, without any such justification, some commonplace question is handled at equal length, one may well find fault. Unfortunately a tendency in this direction is only too noticeable in many of our State courts. conspicuous example is furnished by the case of Ry. Co. v. Transportation & Mfg. Co., 27 Fla. 1, which occupies one hundred and sixty-one pages of the report, one hundred and nine of which are given up to the opinions of the two judges. As far as can be gleaned from the paragraphs of the eight-page head-note, the points involved were not of especial importance. Lord Mansfield used to say that he made his opinions long for the benefit of students. That was a century ago. In the midst of the present overwhelming flood of legal literature, the judge who condenses his opinions. as rigorously as is at all consistent with thoroughness is conferring a benefit on the entire profession.

MALICIOUS PROSECUTION OF A CIVIL SUIT WITHOUT ARREST OR ATTACHMENT. — In Savile v. Roberts, 1 Ld. Raym. 374, Lord Holt laid down the proposition that any one of three sorts of damage would support an action for malicious prosecution, namely, damage to a man's fame, to his person, or to his property. That a prosecution for a crime, which involves the first sort of damage, the bringing of a civil suit with arrest of the person, which involves the second, and the bringing of a civil suit with attachment of property, which involves the third, are actionable if induced by malice and without reasonable cause, is universally admitted. But where a civil suit is unaccompanied by arrest of the defendant's person, or attachment of his property, it has often, perhaps generally, been held that the law must regard the costs which the defendant recovers as a sufficient recompense, and that he can bring no action for malicious prosecution. See the opinion of Bowen, L. J., in Quartz Hill Gold Mining Co. v. Eyre, L. R. 11 Q. B. D. 674, 689; Potts v. Imlay, 1 South. 330; Wetmore v. Mellinger, 64 Iowa, 741. On the other hand, in Lipscomb v. Shofner, 33 S. W. Rep. 818, the Tennessee court recently held that an action would lie under such circumstances, and this decision finds considerable support in this country. See Closson v. Staples, 42 Vt. 209; Eastin v. Bank of Stockton, 66 Cal. 123; Woods v. Finnell, 13 Bush, 628.

It is generally admitted that some action of this nature lay at common law. But since the Statute of Marlbridge (52 Hen. III.), which allowed costs to successful defendants pro falso clamore, no such action has been sustained by the English courts. Those costs apparently include "the attorney's charges for preparing the case for trial in all its parts, the fees of the witnesses and the court officials, and even the honorarium of the barrister who conducted the case in court." 21 Am. Law Reg. N. s. 370. In this country costs are much more sparingly allowed, and are often far from a recompense for the damage sustained. It is on this ground that many of the American courts have allowed the action. Their conclusion certainly seems logical, and in accord with the general principle on which the action for malicious prosecution is based. Manifestly, in the expense to which he is put the defendant suffers damage of a sort covered by Lord Holt's analysis; and if that damage, resulting as a natural consequence of the plaintiff's malicious act, exceeds the amount of costs given under a system which makes no attempt at complete compensation, the defendant should be allowed to make good the loss by another action. The main argument against allowing it, that it would encourage interminable litigation, hardly seems conclusive. See, for a full discussion of the subject, 21 Am. Law. Reg. N. S. 281, 353.

GENERIC AND SPECIFIC PATENTS. - A recent case decided by Judge Townsend in the second circuit, Thomson-Houston Electric Co. v. Winchester Ave. Ry. Co., 71 Fed. Rep. 192, brings up the question how far an inventor is bound by the acts of the patent office in delaying an application filed by him. This point was passed upon in Miller v. Eagle Mfg. Co., 151 U. S. 186, where the facts were as follows: An application for a patent being put into interference by the office was divided by the applicant. A patent was granted on the divisional application for a part of the invention. Subsequently the interference was decided in favor of the applicant, and a second patent was granted him for the rest of the invention. The drawings of both patents were identical and the specifi

cations similar; the claims of the first patent covered one function of a combination, those of the second patent another function of the same combination. The Supreme Court in an opinion delivered by Mr. Justice Jackson held that the entire invention was disclosed by the first patent, and the second patent was void for lack of novelty.

The injustice of a decision which deprives an inventor of the fruits of his genius on account of delay by the Patent Office has been generally recognized. In the case first cited Judge Townsend refused to follow Miller v. Eagle Mfg. Co. The patent in suit was the one covering the overhead trolley system of electric railways which has gone into such general use in this country. The inventor filed an application covering the invention broadly, and while this was pending he took out a patent for a special form of trolley. The broad patent granted afterward was attacked for lack of novelty, but the court upheld it. The patents covered different devices so that the precise question of the Miller case did not arise, but the opinion is interesting as showing a tendency to restrict the scope of that decision. A similar decision was reached by Judge Coxe in Thomson-Houston Co. v. E. & H. Ry. Co., 69 Fed. Rep. 257, which involved the same patent.

In the following cases Miller v. Eagle Mfg. Co. was distinguished or cited for a narrow doctrine: Gamewell Co. v. Signal Co., 61 Fed. Rep. 948; U. S. v. Bell Tel. Co., 65 Fed. Rep. 86; Reynolds v. Paint Co., 68 Fed. Rep. 483; Bell Tel. Co. v. U. S., 68 Fed. Rep. 542. The case has been followed only once, in Fasset v. Ewart Mfg. Co., 62 Fed. Rep. 404, where the facts were similar, and there was the additional circumstance that the inventor attempted by the second patent to prolong his monopoly.

On the whole it may be said that the case will be followed only when the facts are similar or when the inventor has not acted in good faith, and that no attempt to extend the scope of the doctrine will be favored by the courts. This view is supported by the opinion of the Court of Appeals for the Second Circuit in Thomson-Houston Co. v. E. & H. Ry. Co., 71 Fed. Rep. 396, on appeal from the decision of Judge Coxe. The court, Wallace, J., at p. 405, says: "Some observations in Miller v. Mfg. Co. seem to have created some misapprehension of the scope of that decision on the part of the profession, but the principles enunciated in the opinion are so plainly stated that those observations when considered in their application to the case before the court, ought not to be misconceived. The court decided in that case that the two patents . . . were in fact for the same invention, and consequently the later patent was void." This is the latest expression of opinion on the subject, and, coming from such a high authority, may be taken as conclusive.

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A MODIFICATION OF LAWRENCE v. FOX BANK CHECKS. That inconsistencies are pretty sure to follow when courts adopt a rule fundamentally wrong in principle is well illustrated by the difficulties which are being experienced by those courts which have adopted the rule of Lawrence v. Fox (20 N. Y. 268), namely, that a promise by A. to B. to meet B.'s debt to C. will support an action by C. against A., although C. was not a party to the contract. Such an action would not have been tolerated by the old common law, but the doctrine has gained a foothold in many of our jurisdictions. (See 8 HARVARD LAW REVIEW, 93; 9 HAR

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