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The question presented is whether an action can its method of estimate and judgment are not what be maintained against the authorities of a village they were and happily so. The spirit of criticism or municipality who have acted in good faith, with-to-day would not justify the “Who killed John out malice, in the arrest and punishment of com- Keats?” epigram of Byron. A contrast between mercial travelers. A great many authorities have the reviews of the early Scotch magazines and the been cited on this proposition, but the weight of work of our best critics of to-day measures the authority, it seems to me, is against plaintiff's degree of this change. Too often the criticisms contention. In 34 Ark. 105, in the case of Tram- of those days knew no limitation other than the mell v. Town of Russellville, the Supreme Court prejudices or idiosyncrasies of the reviewer. It squarely hold that such an action cannot be main- was the personal method wholly. Now, our crititained. The court says:

cism, except when it deals with subject matter “ It is a universally recognized principle that one which is the expression of personality, is rather acting judicially in a matter within the scope of his non-personal and based on those broad principles jurisdiction is not liable to an action for his con- which underlie all great literature. Instead of the duct. Judge Cooley says: 'Whenever the State , scorpion stings and viper tongues of an “Edinconfers judicial powers upon an individual, it con- burgh Review," we have the no less brilliant fers them with full immunity from private suit' and vigorous and infinitely more fair and just (Cooley, Torts, 408). In effect, the State says to Appreciations,” “ The Personal Equation ” and the officer that those duties are confided to his Obiter Dicta.” Surely a commendable change judgment: that he is to exercise his judgment in the method and spirit of literary criticism. fully, freely, and without favor, and he may exer- Likewise the day of captious criticism has gone cise it without fear; that his duties concern indi- by and books are not measured on the exact scale viduals, but they concern more especially the wel- of a Rene le Bossu, as Sterne measured the epic. fare of the State, and the peace and happiness of A critic who would now object to Akenside viewsociety; that, if he shall fail in the faithful dis

ing “ The Ganges from Alpine heights" would be charge of them, he shall be called to account as a a self-invited subject for ridicule, an “admirable criminal, l'ut that, in order that he may not be connoisseur” who knew not the "pleasures of the annoyed, disturbed, and impeded in the perform- imagination.” And a reviewer who would seriance of these high functions, a dissatisfied individ- ously criticise Cervantes for giving the party at ual shall not be suffered to call in question hi the Crescent two suppers in one evening, would official action in a suit for damages. This is what probably be condemned to dine with the crossthe State, speaking by the mouth of the common legged host ever after. Errors like these should law, says to the judicial officer.”

not come within the purview of serious criticism; This declaration is quoted with approval by they do not mar the logic of truth. The mediæval Judge Cooley in his work on Torts. It seems,

Cycles are a melange of anachronisms, but this from the authorities, to make no difference whether fact in no way lessened the influence of those the ordinance under which the arrest and punish

romances on subsequent literature and Tristram ment were made was valid or invalid. In this

and Isolt, Launcelot and Elaine are typical forcase, therefore, it is not necessary to determine whether the ordinance is valid or not. Cities and

There is not a great work of genius invulnerable towns incur no liability to persons who may be

in this regard. The sublimating and refining proinjured by acts of their officers in the discharge of

cess necessary to eradicate all error would emascutheir duties in their public capacity. The opinion

late a great work. Perhaps later years have not of the court. therefore, is, that the demurrer to the

produced a more precise or perfect work than petition should be sustained, and the petition dis

Pater's “Marius the Epicurean," yet who would missed.

nct wish that its rare delicacy were marred by

some error that might give it energy and enable LAWAND LAWYERS IN MODERN FICTION it to take hold of the heart and soul. Certainly

the absolutely perfect is quite intolerable. Whether BY OTTO ERICKSON.

we agree with Schopenhauer or with the famous

dictum of Leibnitz, we all rejoice that this world The Epic poein your lordship bade me look at,

is not perfectly perfect. While as for its inhabit

very upon taking the length, breadth, height and depth ants — would not the perfect man be a

mediocre man? And as for woman - but man of it, and trying them at home upon an exact scale

embraces woman. of Bossu's. 'tis out, my lord, in every one of its

Sterne. dimensions. Admirable Connoseur!

Venus had a mole on her cheek and Helen had

a scar on lier chin, cas amoris to Paris. The sun, The philosophy of literary criticism has within all glorious, has spots on his disc and Homer slept recent years undergone a great change. While while Pegasus ambled in the side paths. If Padeall of its essential principles remain, of course, the rewski cannot express the full power and virility same, its spirit, its “thinking consideration” and of Beethoven, he can sing with divine perfection

evermore.

66

woman.

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the romanticism of Schumann's melodies and never the law that an erasure vitiated a deed if weave with infinite grace and beauty the “airy made when engrossed and no authority from Coke fairy ornamentations of a Chopin sonata.

down ever held so. And yet Mr. Samuel Warren, The icily regular faultily faultless, splendid Q. C., not only makes his blunder but commits it null” is a nuisance and a bore. Kick it out. in the interest of a Tittlebat Titmouse. Shall we say it? Yea, verily. The “ inexpressive Dickens was prolific of lawyers and lawsuits, but she" has always sufficient earth to keep her a while he would send boys out to hoe vegetables

in winter he never was guilty of contumacious conSo, let Angelo give us the bark oi Charon in his tempt of court. His splendid isolation in this re

Last Judgment" and Allison call droit de timbre spect is due in part to his service as an attorney's timber duties. Let Longfellow crown life with clerk and also to his reportorial manner. He deasphodels and death with amaranth. Let Shaks- ¡ scribed what he saw. Nevertheless there is genpeare project Galen six hundred years before his erally an element of caricature in his descriptions time, present the Romans with clocks and Bo- of lawyers and court scenes. The late lamented hemia with a sea coast. Let Socrates, if Spencer Arthur Lockwood, Q. C., declared the speech of says truly, drink a hemlock toast to his dear bel- Sergeant Buzfuz in the cause celebre of Bardell v. amie, and Dido, per Morgla, sigh for a cockney Pickwick to be the greatest in legal annals. Yet dandiprat. These and countless others known to it is, as is much of the art of Dickens, a grotesque every reader, are little things. Faults that become exaggeration. But after all if Dickens did sometheir authors whom we love because of them. times forget fine distinctions, if he sent queen's

It is in this same spirit, mingling with one of counsel into common-law courts with blue bags, intellectual recreation and amusement, that the where is the citizen in the Republic of Letters who writer poin:s out a few of the many mistakes, often can go into court with clean hands and present very ludicrous, into which nearly all authors in- information against him? variably fall when they invoke “ the majesty of the Anthony Trollope and Charles Reade both law.” Of course technical perfection in any sci-studied law, yet in “ Orley Farm” and Griffith ence or art is impossible to the lay mind. Though Gaunt” each respectively ignores every rule of Hall Caine had twenty experts pass on “The evidence. If the giants of other days were not Christain " yet his picture of St. Martha's Hospital immune, how is it with our moderns? Take “A provoked a storm of adverse criticism from the Modern Instance.” Surely William Dean Howells, medical press and the nursing profession in Eng- the American Isaiah and Messiah of Realism will land. Wilkie Collins' staff of consulting doctors describe a thing as it is. What do we find? could not save him from an occasional medical Probably nowhere in fiction has a court's proceedmistake.

ings been so fustianized and made ridiculous as in But there is so much romance, so much tragedy, the divorce case of Hubbard v. Hubbard, reported in the law and its web

by Mr. Howells in "A Modern Instance." It is Seems fair and glitters in the sun," .

as exaggeratedly unreal and melo

mic as any

thing Mrs Southworth, Mrs. Henry Wood, or the author or other victim is wound in its toils Augusta J. Evans Wilson ever did. Indeed it is before he dreams of danger or mistakes. The if anything more bathetic than the trial scene in most famous of legal novels is Warren's “Ten the latter's “At the Mercy of Tiberius." Mr. Thousand a Year," and though it was written by a Howells' travesty is committed in Tecumseh, Invery distinguished lawyer and law writer, It con- diana, in 1879. Bartley J. Hubbard has sued his tains a very palpable legal error. In the cele- wife Marcia G. Hubbard for divorce. The legal brated trial which was to decide whether Mr. proceedings on his part are all regular, there is no Tittlebat Titmouse was to become a gentleman appearance for the wife and a default judgment is with ten thousand a year or whether his sublime taken. On the day the decree is granted and is soul should be crucified in a linen draper's shop, entered by the clerk, Squire Gaylord, of Equity, a deed is produced and offered in evidence which Equity county, Maine, rushes into the court room would have given the grinning jackanapes his and without every having legally appeared in the quietus and rendered his brilliant array of counsel action moves to open the default, and thereupon, immediately hors de combat. What happens? The as if issuie had been actually joined, delivers a rantlearned counsel, Mr. Subtle, rises (it is a pregnant ing harangue until he collapses in the throes of inoment when counsel rises) and objects to the his own paroxysm. And upon this wild and deed because of an erasure which had been made frenzied delirium the whole matter becomes res by a clerk when he copied it. The honorable adjudicata and Bartley Hubbard is driven into attorney-general argues for the sufficiency of the exile. Not a single legal and necessary formality deed, all the time talking good law, though contra is complied with. Of course such a thing never spem we are told. Lord Widdrington, after con- happened in Indiana or anywhere else. As if sultation with brother Grayley, solemnly sustains realizing the literary crime he was about to comMr. Subtle and declines to allow the deed. It was mit, Mr. Howells, in a sort of anticipatory apology,

us

naively declares that “the administration of justice a sequel to the altogether admirable “Deis everywhere informal with us." There is a scendant." mocking devil in that unconscious sarcasm. Only In “The Voice of the People," her last and her litigants grown gray in the shadow of a court best work, Miss Glasgow has given us several fine "house iully realize how rigidly and eternally formal lawyers, and she treats of law and its next of kin, is the administration of justice.

politics, with a sure and perfect hand. Nevertheless it is a pleasure to know that Mr. Her fine novel is, however, spared absolute perHowells frequently departs widely from his own section by its report oí a miracle. The author is pet theory of fiction and that Squire Gaylord, of describing with brilliant touch the “summer dawns Equity, Equity county, Maine, suffered death (by of Eugenia's childhood.” * There were hours paralysis) ior his flagrant contempt of court. when awaking, wide-eyed, Eugenia would rise on

Then there is that delightful cosmopolite, albeit her elbow and look out to the western horizon an American first, Marion Crawford. He has where the day broke in a cloud of gold.” But it recently been brought to book for an alleged error is all very beautiful, and no mocking bird ever sang in canon law in “ Via Crucis." The point is some- half so exquisitely " the lyric ecstacy of dawn.” what obscure, dealing with an age hardly accurate If an author owes an obligation to his hero, historically. “ The Ralstons " contains an indubi- Paul Leicester Ford more than fulfills his. Pertable error in connection with the extraordinary haps many a young law-student plodding along for will of Robert Lanisdale. It is only a matter of several years and dreaming of that far off time millions, nevertheless there are those who desire when he can chase ambulances for accident cases to break the will and get the cash. The will was and pursue hearses for wills to probate has envied properly executed and the testator had full the Honorable Peter Sterling, of the New York capacity.

bar, who never had to study law or serve a clerkMr. Crawford succeeds in breaking the will on ship. The redoubtable and composite Peter the remarkable theory that it could not be proved sprang a full-armed and admitted lawyer right that a third witness signed the instrument in the from the train of Mr. Ford like Pallas from that presence of the other two, and that such third wit- of Jove. He graduates from a literary college in ness was a probable legatee. Of course this is one State, goes into another, and immediately sets absurd. Such was never the law in New York up there as a lawyer on his own account. No law State the locus in this case. The fact of witnesses reading, no clerkship, no examinations. No flight not having signed in the presence of each other of time, nothing. Friends advise him to go into would not invalidate the will. The absence of the an office. Peter “shakes his head." Perhaps he entire attestation clause would not necessarily do had some secret pull ” with the examining board 4. And the fact of a witness being a legatee or mislead the bench with false affidavits. Ugly would not debar a will from probate. Moreover suspicion. In any event, though the Hon. Peter only two witnesses are required by statute, and Sterling is a brilliant ornament to the bar of which prior to the statute proof by two attesting wit- he is improperly a member, some fine day he may nesses was sufficient. Mr. Crawford's theory of be compelled to show cause why he should not be fiction would be an extenuating circumstance, punished for contempt of court. something which could not be pleaded in behalf

It would hardly be expected that the accurate of Mr. Howells.

and precise “Scholar in Politics,” Senator Henry There are now no black patches in the dark Cabot Lodge, would lapse not only in the descripnight of the American literary firmanent. At tion of a trial but in the statement of a fact conleast in the Zodiacal sign of fiction all is stellar nected with it. He has certainly done the former glory. And one of the serenest and brightest of and apparently the latter in his excellent biography new-born stars is Miss Ellen Glasgow. Her first of Alexander Hamilton. He describes a murder book, “ The Descendant,” though dealing with a trial in which Hamilton appears for the defense. dangerous theme, is remarkable for its balance, its The chief witness for the prosecution was sanity and concreteness, but her almost scientific pected by the counsel of the murder. In order to precision did not prevent her falling into a techni- confound the witness and demonstrate his guilt, cal legal error.

candles were brought in and so placed as to throw Michael Akershem, an iconoclastic hero, com- their light on the suspected person's face. Then mits homicide. He is tried by a jury and con- Hamilton cross-examined him and called the victed. When the jury report he is in his cell and attention of the jury to his guilty countenance. the verdict is brought to him there by his counsel. The witness rushed from the room covered with Now, as a matter of law, when a defendant is triei the calumny of guilt. So, in substance says the on an indictment for felony such defendant must Senator. appear in person when the verdict is received. Now it is true that such a coup de theatre was Were ir not that Miss Glasgow killed off her hero successfully resorted to in that case.

But it was she might be persuaded to have the verdict set not the ingenious device of Hamilton. The credit aside or the ground of this irregularity and give belongs to his associate counsel for the defense,

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Aaron Burr. It was Burr who cross-examined the the premises be in such a condition that they will witness and who, in closing for the prisoner, seized naturally become dangerous, if not repaired. two candles, held them so as to throw their glare (Deller v. Hofferberth, 127 Ind. 414; Miller v. on the face of the witness, and exclaimed, Be- Rinaldo, 47 N. Y. Sup. 636; Dowling v. Nuebling, hold the murderer, gentlemen.”

97 Wis. 359, 72 N. W. R. 871.) Even the landIn the recent discussion as to the comparative lord's promise to repair, made after the lease was merits of Hugh Wynne, Richard Carvel and Janice entered into, is held not to bind him, as lacking a Meredith, a fine trilogy of Revolutionary fiction, legal consideration to support it. (Taylor v. Lehthe statement has frequently been made that every man, 17 Ind. App. 585; Purcell v. English, 86 Ind. incident in the first of these can be verified. 34; Dowling v. Nuebling, 97 Wis. 350, 72 N. W. R. Hardly. For the accomplished Doctor Mitchell | 871; Hall v. Berton, 38 N. Y. Sup. 979.) And, if has broken the neck of Pegasus at least once.

the landlord should voluntarily make sonie Perhaps it will be sufficiently a propos to the gen- pairs, that fact would create no liability on his eral subject to point this out. The author is part to make others. (Matler v. Strangmeier, i picturing beautifully the gathering of the first Ind. App. 556.) Even where the landlord covenContinental Congress which convened in Phila- anted to repair a building at a certain time, but delphia, September 5, 1774. Among the well-resused to do so, it was held to be the tenant's known figures mentioned he speaks of the “lean, duty to make the repairs himself, and offset the bent form of Mr. Jefferson, deep in talk with costs against the rent, and he was denied the Roger Sherman.” Thomas Jefferson was not a right to recover the damage to his goods occadelegate to this Congress and did not attend it. sioned by the lack of repairs. (Hendry v. Squier, Of course Jefferson was there in spirit, so perhaps 126 Ind. 19.) the doctor saw the lean, bent form ” subjectively.

It is also held that there is no implied warranty Only on that theory - a touch of the new sym

that a leased house or storeroom is or shall con bolism in fiction perhaps can the statement betinue to be fit for the purpose for which it is let. verified.

The tenant must determine for himself the safety The perfect picture of a trial and court scene and fitness of the premises. (Lucas v. Colter, 104 which Thomas Nelson Page has given us in his Ind. 81; Murray v. Albertson, 50 N. J. Law, 167; Red Rock is but a single characteristic of the judi- Jaffe v. Harteau, 56 N. Y. 398.) cial spirit which animates and pervades that mag- Under these rules it is held that a landlord is nificent novel. However the titles cited here, not ordinarily liable for injuries to the person or especially the newer fiction suggest not so much property of the tenant caused by the dangerous opportunities for captious criticism as the magnifi- condition of the leased premises. (Purcell v. cent use that is being made of the opportunities English, 86 Ind. 34; Dean v. Brock, 11 Ind. App.; the novelist may find in our history and our Hendry v. Squier, 126 Ind. 19.) But where there national life.

is a defect in the premises known to the landlord. Our colonial, revolutionary and reconstruction which is not apparent on inspection, but which periods, heroic all, afford the richest material as is would make their occupation dangerous (Holton now being demonstrated, for a series of novels v. Waller, 95 Iowa, 545, 64 N. W. 663; Coke v. that will be the glory of prose fiction and furnish Gotkese, 80 Ky. 598; Stenberg v. Wilcox, 96 wealth for another world epic. Assuredly a

Tenn. 163 and 328; Hines v. Wilcox, 96 Tenn. 148 Wizard of the West will arise to mould and and 328), the rule is different. Thus a landlord is fashion it, breathe into it the divine afflatus and liable for injuries from falling into concealed pitusher in the Golden Age of our National Litera

falls by the imperfect filling up or covering over ture.

of old wells (Hamilton v. Feary, 8 Ind. App. 624; Holton v. Waller, 95 lowa, 545, 64 N. W. 663), or

the improper construction of floors and stairway. LIABILITY OF A LANDLORD FOR LEAS

(Coke v. Gotkese, 80 Ky. 598; Stenberg v. Wilcox, ING PREMISES INFECTED WITH DISEASE

96 Tenn. 163 and 328; Hines v. Wilcox, 96 Tenn.

148 and 328.) And where the landlord knows of T is well settled that in the absence of a special some danger to the life or health of a person who

agreement a landlord is not bound to make may occupy his house, but rents it to a tenant any repairs on leased premises. (Harry v. Harry, without notifying him of the danger, he is liable 127 Ind. 91; Petz v. Voigt Brewery Co., (Mich.) for resulting damages. Thus, where a house 74 N. W. R. 651; Harper v. Fall, 63 Minn. 520, (Minor v. Sharon, 112 Mass. 476) or apartments 65 N. W. R. 913; Clyne v. Holmes, (N. J.) 39 Atl. in a building (Ceser v. Karutz, 60 N. Y. 229) had R. 767; Wynne v. Haight, 50 N. Y. Sup. 187.1 been occupied by persons sick with the small-pox, Nor to pay for repairs or improvements made by and the landlord, without causing the rooms to be the tenant. (Harry v. Harry, 127 Ind. 91; Mull v. disinfected, leased them to a tenant who did not Graham, 7 Ind. App. 561. See Sheehan v. Win- know that persons having the small-pox had occhill, 18 Wash. 447, 51 Pac. R. 1064.) Even though cupied them, and members of the tenant's family

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contracted the disease, the landlord was held liable for damages where sickness is caused by the confor damages. (Ceser v. Karutz, 60 N. Y. 229; tamination of the water in the well on leased premMinor v. Sharon, 112 Mass. 487. See Hamilton v. ises from a cause of which the landlord knew, but Feary, 8 Ind. App. 624.)

concealed from the tenant. (Maywood v. Logan, In the Massachusetts case cited it was insisted 78 Michigan, 135.) that the plaintiff's failure to have the members of In the case last cited the plaintiff notified the his family vaccinated immediately before moving landlord that there was something wrong with into the house deprive him of the right to recover, the well before he took possession of the leased but the court held that, as the members of his premises. The landlord made examination family had been vaccinated some time before, it and found the putrid carcass of a dog floating in was for the jury to say whether the plaintiff's own the well. He did not remove it, but concealed negligence had contributed to cause them to take from the plaintiff the fact that it was there. The the disease.

plaintiff and his whole family were made sick by In the New York case the plaintiff icased apart- | using the water. The court said: “ The acts of the ments in which a child had recently died of small- | plaintiff, his examination of the well and concealpox. The landlord knew this fact. but leased ment and denial of the cause of the pollution of them to the plaintiff without having them disin- the water, permitting the defendant and his famifected or notifying her of the facts. The plaintiff ily to remain there, conclusively show that his contracted the disease by living in those rooms. understanding was that the property was to be put The charge to the jury, “ that if a landlord lets and kept in a healthful condition as a part of his premises to a tenant and they are infected, and he contract to lease, and he therefore becane liable knows it, it is his duty to let the tenant know it," for all damaes traceable to his acts and misreprebut unless the landlord knew or had reasonable sentations. The defendant and his family would notice that the premises were infected the plaintiff have suffered no greater wrong if the plaintiff, could not recover, was approved by the Court of when he uncovered the well and made the examiAppeals.

ination, had actually polluted the water by placing It has also been held that where a house which the animal there." The Supreme Court affirmed was infected with diphtheria was leased to a tenant the judgment with $50 damages on account of the who was ignorant of that fact the landlord was

vexatious appeal. liable for damages caused by the tenant's children

The landlord's liability in such cases arises from taking the disease. (Snyder v. Gorden, 46 Hun his concealment of the dangerous condition of the (N. Y.) 538; Cutter v. Hamlen, 147 Mass. 471.)

property by reason of defects not apparent on In the Massachusetts case last cited, the child casual inspection. (Bоwe v. Hunking, 135 Mass of a former tenant had died of diphtheria in the 384; Daily v. Wise, 132 N. Y. 311.) leased house eight nionths before the plaintiff This principle has been applied in cases where moved into it. Soon after the death the house was the landlord's act in fraudulently representing a fumigated under direction of the board of health house to be in good condition when it was delec to its satisfaction, but it was shown that the land

tive, or his fraudulent concealment from the tenant lord knew that the drains were in such a defective of known defects, has been held to excuse the condition as to make the danger of infection from latter from the obligation to pay rent after he has a disease with which a former tenant was afflicted abandoned the house on account of such defects. especially great; and it was shown that he caused | (Daily v. Wise, 132 N. Y. 306; Jackson v. Odell, them to be repaired soon after plaintiff and his 12 Daly, (N. Y.) 345.) family were taken sick. The landlord was held It has been held that actual notice to the landliable in an action for deceit. (Cutter v. Hamlen lord is not necessary to fix upon him liability for 147 Mass. 471.)

injuries resulting from defects in the premises In the New York case cited the plaintiff was

but that notice to his representative, who had thu informed that the house was infected with diph

oversight and care of the building and the collectheria from a child then sick in one of the rooms

tion of the rents, was sufficient to charge him with and inquired of the landlord as to the truth of the knowledge and the duty of putting the premises in statement. The landlord assured him that there

a safe condition. (Evers v. Weil, 17 N. Y. Sup. was no scarlet fever or diphtheria in the house.

29.) But soon after he took the rooms one of the chil- The authorities, and especially those which foldren died of the disease, which it had taken from low the English cases, all hold that the obligation the sick child of another tenant. The court said is greater on the part of a landlord who leases that it was no part of the duty of the plaintiff to furnished apartments than if the rooms are unfursearch or inquire who was the doctor that had nished, as there is then an implied undertaking treated the sick child in order to ascertain from that they are in habitable condition. But it is held him the nature of the disease with which it suf- that a man who has let part of his house as furfered, and held the landlord liable in damages. nished lodgings is under no obligation to notify

It has also been held that the landlord is liable his lodgers upon a member of his family becoming

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