failed, and the doctrine of the subrogation of the insurer to the rights of the insured is shown to be independent of the strict liability of the insurer upon the policy.-Solicitor's Journal. Notes of American Decisions. LIFE INSURANCE—MISREPRESENTATIONS IN APPLICATION. A statutory provision that no immaterial misrepresentation in the application shall avoid the policy unless it is made "in bad faith," means with an actual intent to mislead or deceive, and does not include a misstatement, honestly made, through inadvertence, or even gross forget fulness or carelessness. (Penn Mut. Life Ins. Co. v. Mechanics' Savings Bank & Trust Co. [U. S. C. C. of App.], 73 Fed. Rep. 653.) MASTER AND SERVANT-DUTY TO EMPLOY COMPETENT SERVANTS.-In an action against a railroad company for damages for personal injuries sustained by an employe of the company in an accident which some of the evidence tends to show was caused by the drunken condition of the engineer of the train, it is entirely competent to prove the engineer's general reputation for drunkenness and consequent incompetency, for the purpose of showing that the railroad company was negligent in retaining him in its employ. (Baltimore & O. R. Co. v. Henthorne [U. S. C. C. of App.], 73 Fed. Rep. 634.) PUBLIC LANDS - VALIDITY OF PATENT.-Under Rev. St. §§ 2258, 2289, excluding from preemption and homestead "lands included within the limits of any incorporated town or selected as the site of a city or town," a patent issued by the land department for lands within the limits of a city incorporated, by public act, two years before the patentee's application to enter the land, is void. (Burfenning v. Chicago, St. P. M. & O. Ry. Co. [U. S. S. C,], 16 S. C. Rep. 1018.) RAILROAD COMPANY INJURY CONTRIBUTORY NEGLIGENCE.—Where the jury are told that they must look at all the circumstances in determining whether plaintiff acted with due care; that if he attempted to cross the railroad, or approached so near to it that injury might have resulted, he was under a duty to use such care as was proportionate to the danger; and, generally, that all persons acting under dangerous circumstances and conditions must have due regard to the dangers that surround them, and use a greater degree of care where there is much danger than where danger is but little, defendant cannot complain that the court did not charge further as to plaintiff's negligence in driving so close to the railroad as to be injured by passing cars. (Rio Grande W. Ry. Co. v. Leak [U. S. S. C.], 16 S. C. Rep. 1020.) RAILROAD MORTGAGES-PAYMENTS TO PRESERVE PROPERTY. When third parties, at the request and for the benefit of the trustee in a railroad mortgage, have entered into obligations for the purpose of preserving the mortgaged property for the benefit of the bondholders, and keeping it a going concern and are subjected to a liability arising out of such obligations, such liability may properly be discharged out of the income or corpus of the mortgaged property for the benefit of which it was incurred. (Jones v. Central Trust Co. of New York [U. S. C. C. of App.], 73 Fed. Rep. 568.) REFORMATION OF DEEDS- MISTAKE.- Mistake, though arising from the carelessness of the parties themselves, and not of a scrivener, in drawing and signing the deed, may be proved for the purposes of a reformation. If the proofs of mistake are en. tirely plain, and satisfactory to the court, the relief will be granted, though the mistake is denied and there is a conflict of testimony. (Baldwin v. National Hedge and Wire Fence Co., [U. S. C. C. of App.], 73 Fed. Rep. 574. Notes of English Cases. JOINTURE -POWER.- A will contained a power of jointuring in common form, except that the words "by way of jointure" were omitted. In the following clause of the will the power was referred to as the "said power of jointuring." The will also contained further powers for charging the estates thereby devised with portions for younger children and with the payment of interest thereon by way of maintenance. J., a person entitled to exercise the powers aforesaid, by a revocable deed appointed to his wife during the joint lives of himself and his wife, a rent charge of £1,000 a year, and he further charged the estates with the payment to himself, as the guardian of his children, of the interest on their expectant portions by way of maintenance. Held, that prima facie a jointure was a provision for the wife after the death of her husband, that the power in the will was simply a power of jointuring, and that the exercise of the power in such a manner as to create a rent-charge payable to the wife during the life of her husband was invalid. Held, further, that the appointment of the interest on the expectant portions of the children, being within the terms of the power and for the benefit of the children, was a good appointment, notwithstanding that the instrument by which it was made was a revocable instrument, and that the interest was payable to the appointor. Henty v. Wrey (47 L. T. Rep. 231; 21 Ch. Div. 332) considered and applied. (Chan. Div.; Re De Houghton; De Houghton v. De Houghton, 74 L. T. Rep. 613.) The Albany Law Journal. ALBANY, AUGUST 22, 1896. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other hounds is possessed of a high degree of intelligence and acuteness of scent, and may be trained to follow human tracks with considerable certainty and success, if put upon a recent trail. In Chambers' Encyclopedia, under the title Bloodhound,' it is said of this dog, that 'it is remarkable for its exquisite scent and for its great sagacity and perseverance in tracking business matters, should be addressed to THE ALBANY LAW any object, to the pursuit of which it has been JOURNAL COMPANY.] AN N interesting question of circumstantial evidence, furnished by the tracking of a dog, has been decided in the case of State of Ohio v. Hall, 3 Ohio Legal News, 147. In this case the State called as a witness one Britton and offered to prove by him that he was the owner of a bloodhound about nine years old; that the dog had carefully been trained to follow the scent of human tracks; that it had been previously tested and found to follow such tracks with success and certainty; that such tests had been made by putting the dog on the trail of persons who had started out on foot from twenty to forty hours ahead of the hound to see if it could follow them; that it had also been tested in following tracks from places where crimes had been committed and that persons thus trailed by the dog had, in a number of cases, confessed their guilt; that in the case on trial, on Sunday evening, after the burglary on Saturday night, a basket filled with a part of the stolen property had been found under a freight car, about 200 yards from the place of the burglary; that the dog had been taken to the spot where the basket was found and had trailed from that place. trained; that it has been frequently used for the pursuit of felons and deer slayers, and, in America, for the capture of fugitive slaves;' and the writer refers to the use of these dogs in border warfare, and to their importation into Jamaica in 1706 to be used in suppressing the Maroon insurrection, but the terror occasioned by their arrival produced the effect without their actual employment.' The Encyclopedia Britannica (9th ed.), under the title Dog,' bears this testimony to the well-known traits of this animal: The bloodhound is remarkable for its acuteness of scent, its discrimination in keeping to the particular scent on which it is first laid, and the intelligence and pertinacity with which it pursues its object to a successful issue. These qualities have been taken advantage of not only in the chase, but also in the pursuit of felons and fugitives of every kind. According to Strabo, these dogs were used in an attack upon the Gauls. In the clan feuds of the Scottish Highlands, and in the frequent wars between England and Scotland, they were regularly employed in tracking fugitive warriors, and were thus employed, according to early chroniclers, in pursuit of Wallace and Bruce. The former is said to have put the hound off the scent by killing a suspected follower, on whose corpse the hound stood. For a similiar purpose captives were often killed. Bruce is said to have baffled his dogged pursuer as effectually, though less cruelly, by wading some distance down a stream, and then ascending a tree by a branch which overhung the water, and thus breaking the scent. In the history of border feuds these dogs constantly appear as employed in the pursuit of enemies, and the renown of the warrior was great, who, The defendant objected to admitting as evidence anything concerning the training and testing of the dog and as to its alleged tracking or trailing to the house. The court held that the evidence was competent to go to the jury with other testimony as a circumstance tending to connect the accused with the crime, and cites the case of Hodge v. State, 39 Am. St. Rep. 17. There are many important questions involved in the admissibility of such evidence and it is interesting to note how the court treats this point concerning the admission of evidence as to the dog. In the opinion, the court says: "It is a matter of common knowledge, and, therefore, a matter of which courts will take notice, that the breed of dogs known as blood- | time of Queen Elizabeth, the Earl of Essex had, "By wily turns and desperate bounds, VOL. 54 No. 8. * it is said, 800 of these animals accompanying The accused was thereupon placed under medithe army. * * The employment of cal observation, as a result of which a report bloodhounds in the capture of runaway slaves, was made by a medico-legal expert engaged, and in the cruelties connected with the sup-declaring that she had probably committed the pression of negro insurrection, has brought the crime laid to her charge while suffering from animal into the evil repute which more prop- the psychological equivalent of epilepsy. erly belongs to the inhuman masters, who thus cording to this evidence the woman, while under prostituted the courage, sagacity and pertinacity observation, frequently suffered from such comof this noble dog to such revolting pur-plete absences that she did not recognize those poses.' "Both history, therefore, and natural history testify to the exceptional keenness of scent and capacity for training of this variety of hound. Whatever may be said of the wisdom or humanity of resorting to this means of detecting and securing the apprehension of criminals, there can be no doubt that where a well trained dog is set upon a recent track and follows it, in the usual manner of such dogs in following a trail, up to the person or home of the accused, these facts may, on the plain principles governing circumstantial evidence, be shown as tending to connect him with the crime charged." around her, and in these instances there was a demnation. attachment On an application recently made to the Queen's Bench Division for an against the publisher of a newspaper, for contempt of court in publishing certain articles relative to a cause then pending, it appeared that the applicant, who had been sub-editor and manager of the paper, had been charged with an attempt to commit arson, and had been remanded for a further hearing. An article was then published in the paper, alluding to the fact that the property of the newspaper company was for sale, that the applicant had been arrested, and that the charge of arson was still pending. That charge was afterwards dismissed, but others were preferred, on two of which the applicant was committed for trial. While he was awaiting trial another article was published, stating that the paper had been purchased by one of the respondents and asking for support, and also alluding to the charges against the applicant; and shortly afterwards a A curious case in medico-legal jurisprudence recently occurred in Russia and the circumstances thereof are most interesting. In the village of Essende-Kassy a general dealer named Antonoff was found murdered in a summer house adjoining his residence. His skull was battered and his body lay in a pool of blood. Beside him lay his clothes in disorder, but the fact that several things, among them his purse, were missing, led to the suspicion that robbery was the motive for the crime. Antonoff's young wife declared that she had been with him when he fell asleep, but that she had then left him and gone to her room for the night. No one for a moment supposed that she had any thing to do with his death. Shortly afterwards, how-report was published of the proceedings of a ever, the missing effects were discovered concealed in the garden. Thereupon the wife became confused and admitted that she had murdered her husband. On being questioned On being questioned as to her motives she gave such indefinite and extraordinary answers that suspicion was aroused as to her sanity. meeting of a county council committee, at which a resolution was carried that the action of the chief constable in obtaining legal assistance for the police in the case of the pending prosecution against the applicant should be confirmed. The application was, however, refused on the ground that it did not apThe most remarkable point developed was pear that the articles referred to in any that Mrs. Antonoff's sister, who had married way, tended or were designed to prejudice previously, had evinced a like sudden aversion the fair trial of the charges against the applito her husband on the night of her marriage. I cant. INTERNATIONAL LAW. The Annual Address before the American Bar ience, of justice and of Association. BY THE RIGHT HON. LORD RUSSELL OF KILLOWEN, LL.D., MR. PRESIDENT: portant to them, that the rules which govern the relations of States inter se should be well understood and should rest on the solid bases of convenreason. One other consideration has prompted the selection of my subject. I knew it was one which could not fail, however imperfectly treated, to interest you. You regard with just pride the part which the judges and writers of the United States have played in the Story, Kent, Marshall, Wheaton, Dana, Woolsey, Halleck and Wharton, amongst others, compare not unfavorably with the workers of any age, in this province of jurisprudence. The My first words must be in acknowledgment of the development of international law. honor done me, by inviting me to address you on this interesting occasion. You are a congress of lawyers of the United States met together to take counsel, in no narrow spirit, on questions affecting the interests of your profession; to consider necessary amendments in the law which experience and time develop; and to examine the current of judicial decision and of legislation, State and Federal, and whither that current tends. I, on the other hand, come from the judicial bench of a distant land, and yet I do not feel that I am a stranger amongst you, nor do you, I think, regard me as a stranger. Though we represent political communities which differ widely in many respects, in the structure of their constitutions and otherwise, we yet have many things in common. International law, then, is my subject. necessities of my position restrict me to, at best, a cursory and perfunctory treatment of it. We speak the same language; we administer laws based on the same juridical conceptions; we are coheirs in the rich traditions of political freedom long established, and, we enjoy in common a literature, the noblest and the purest the world has knownan accumulated store of centuries to which you, on your part, have made generous contribution. Beyond this, the unseen "crimson thread" of kinship, stretching from the mother Islands to your great Continent, unites us, and reminds us always that we belong to the same, though a mixed, racial family. Indeed the spectacle which we, to-day, present is unique. We represent the great English-speaking communities-communities occuping a large space of the surface of the earth--made up of races wherein the blood of Celt and Saxon, of Dane and Norman, of Pict and Scot, are mingled and fused into an aggregate power held together by the nexus of a common speech-combining at once territorial dominion, political influence and intellectual force greater than history records in the case of any other people. This consideration is prominent amongst those which suggest the theme on which I desire to address you-namely, international law. The English-speaking peoples, masters not alone of extended territory, but also of a mighty commerce, the energy and enterprise of whose sons have made them the great travellers and colonizers of the world-have interests to safeguard in every quarter of it, and, therefore, in an especial manner it is im I propose briefly to consider what is international law; its sources; the standard-the ethical standard-to which it ought to conform; the characteristics of its modern tendencies and developments, and then to add some (I think) needful words on the question, lately so much discussed, of international arbitration. I call the rules which civilized nations have agreed shall bind them in their conduct inter se, by the Benthamite title, "International Law." And here, Mr. President, on the threshold of my subject I find an obstacle in my way. My right so to describe them is challenged. It is said by some that there is no international law, that there is only a bundle, more or less confused, of rules to which nations more or less conform, but that international law there is none. The late Sir James F. Stephens takes this view in his "History of the Criminal Law of England," and in the celebrated "Franconia" case (to which I shall hereafter have occasion to allude), the late Lord Coleridge speaks in the same sense. He says: "Strictly speaking, 'International Law' is an inexact expression and it is apt to mislead if its inexactness is not kept in mind. Law implies a lawgiver and a tribunal capable of enforcing it and coering its transgressors." Indeed it may be said that with few exceptions the same note is sounded throughout the judgments in that case. These views, it will at once be seen, are based on the definition of law by Austin in his "Province of Jurisprudence Determined," namely, that a law is the command of a superior who has coercive power to compel obedience and punish disbedience. But this definition is too narrow; it relies too much on force as the governing idea. If the development of law is historically considered, it will be found to exclude that body of customary law which in early stages of society precedes law which assumes, definitely, the character of positive command coupled with punitive sanctions. But even in societies in which the machinery exists for the making of law in the Austinian sense, rules or customs grow up which are laws in every real sense of the word, as for example, the law merchant. Under later developments of arbitrary power laws may be regarded as the command of a superior with a coercive power in Austin's sense: Quod placuit principi legis vigorem habet. In stages later still, as government became more frankly democratic, resting broadly on the popular will, laws bear less and less the character of commands imposed by a coercive authority, and acquire more and more the character of customary law founded on consent. Savigny, indeed, says of all law, that it is first developed by usage and popular faith, then by legislation and always by internal silently-operating powers, and not mainly by the arbitrary will of the lawgiver. I claim, then, that the aggregate of the rules to which nations have agreed to conform in their conduct towards one another are properly to be designated International Law." The celebrated author of "Ecclesiastical Polity," the "judicious" Hooker, speaking of the Austinians of his time, says: "They who are thus accustomed to speak apply the name of law unto that only rule of working which superior authority imposeth, whereas we, somewhat more enlarging the sense thereof, term every kind of rule or cannon whereby actions are framed a law." I think it cannot be doubted that this is nearer to the true and scientiffe meaning of law. What, then, is international law? I know no better definition of it than that it is the sum of the rules or usages which civilized States have agreed shall be binding upon them in | their dealings with one another. Is this accurate and exhaustive? Is there any a priori rule of right or of reason or of morality which, apart from and independent of the consent of nations, is part of the law of nations? Is there a law which nature teaches, and which, by its own force, forms a component part of the law of nations? Was Grotius wrong when to international law he applied the test "placuit-ne Gentibus"? These were points somewhat in controversy between my learned friend, Mr. Carter, and myself before the Paris Tribunal of Arbitration in 1893, and I have recently received from him a friendly invitation again to approach them — this time in a judicial rather than in a forensic spirit. I have reconsidered the matter, and, after the best considera- | tion which I can give to the subject, I stand by the proposition which in 1893 I sought to establish. That proposition was that international law was neither more nor less than what civilized nations have agreed shall be bsnding on one another as international law. Appeals are made to the law of nature and the law of morals, sometimes as if they were the same things, sometimes as if they were different things, sometimes as if they were in themselves international law, and sometimes as if they enshrined immutable principles which were to be deemed to be not only part of international law, but, if I may so say, to have been preordained. I do not stop to point out in detail how many different meanings have been given to these phrases-the law of nature and the law of morals. Hardly any two writers speak of them in the same sense. No doubt appeals to both are to be found scattered loosely here and there in the opinions of continental writers. Let us examine them. What is the law of nature ? Moralists tell us that for the individual man life is a struggle to overcome nature, and in early and what we call natural or barbarous states of society the arbitrary rule of force and not of abstract right or justice is the first to assert itself. In truth, the initial difficulty is to fix what is meant by the law of nature. Gaius speaks of it as being the same thing as the Jus Gentium of the Romans, which, I need not remind you, is not the same thing as Jus inter Gentes. Ulpian speaks of the Jus naturale as that in which men and animals agree. Grotius uses the term as equivalent to the Jus stricte dictum, to be completed in the action of a good man or state by a higher morality, but suggesting the standard to which law ought to conform. Pufen dorf in effect treats his view of the rules of abstract propriety, resting merely on unauthorized speculations, as constituting international law and acquiring no additional authority from the usage of nations, so that he cuts off much of what Grotius regards as law. Ortolan, in his "Diplomatie de la Mer," cites with approval the following incisive passage from Bentham, speaking of so-called natural rights springing from so-called natural law: "Natural right is often employed in a sense opposed to law, as when it is said, for example, that law cannot be opposed to natural right, the word 'right' is employed in a sense superior to law, a right is recognized which attacks laws, upsets and annuls it. In this sense, which is antagonistic to law, the word 'droit' is the greatest enemy of reason and the most terrible destroyer of governments. "We cannot reason with fanatics armed with a natural right, which each one understands as he pleases, applies as it suits him, of which he will yield nothing, withdraw nothing, which is inflexible, at the same time that it is unintelligible, which is consecrated in his eyes like a dogma and which he cannot discard without a cry. Instead of examining laws by their results, instead of judging them |