In England they appear to be much more these ignorant and misguided people, and, particular than we are in this country about therefore, enlisting public sympathy in their the publication of articles in the newspapers behalf. Mr. Purrington's demonstration of which might interfere with the due and proper the dangers of the unrestricted practice of administration of justice. The following from Christian Science by “healers," self-concededly the London Law Journal will serve to empha- and boastfully ignorant of the very laws that size the point: govern the human body, is complete, while his quotations from Mrs. Eddy's book reduce her so-called phuosophy to utter absurdity. To those who are free from prejudice and open to conviction,— it is of course out of the question to think of converting the Eddyites themselves, who are making too good a thing out of their impious cult to drop it,- Mr. Pur- · rington's arguments must be regarded as unThey cannot fail to have an important influence in preventing the spread of this dangerous cult. There has been, during the last week, a gross deviation in certain daily papers from the unwritten but well-established rule against comments on current criminal cases. We refer to what is known as the Yarmouth murder case. Certain journals have been indulging in long articles of an American type, which are calculated to prejudice the defense. It is perhaps well to remind the persons responsible for these productions that the arm of the law is strong enough to deal with such performance, either by indictment for interference with justice (Regina v. Williams, 25 Revised Reports, 624), or by proceedings for contempt of court, such as were taken in Regina v. Madge and Armstrong (29 Law Journal, 311); Times newspaper, May 9, 1894. If the scandal is not discontinued, it is to be hoped that the matter will receive the attention of the attorney-general. Whether the aspersion upon our methods in this respect be justified or not we shall not attempt to argue, although a great many persons who are in a position to know (and these include many eminent occupants of the bench), do not hesitate to declare that the liberty of the press in this country is really license to interfere with the administration of justice. The subject is one well worthy of attention. answerable. Notes of Cases. United States Liability for Torts - Negligence in Operating Elevator Personal Injury. In Bigby v. United States, decided in the U. S. Circuit Court, E. D. New York, in August, 1900, it was held that, while the license extended by the United States to the public to use its passenger elevator in a post-office building imposes upon the government the duty to use ordinary care to see that the facilities offered to its licensees are in a condition of reasonable safety, no implied contract arises from such relation to carry the passenger to his destination which will entitle one who is injured through the incompetence of a person in charge of the elevator to maintain an action against the United States for damages, under act March 3, 1887 (24) Stat. 505), permitting a recovery against the United States for claims founded upon any contract, express or implied, with the government of the United States, or for damages, in cases not sounding in The following is the opinion: tort. We take pleasure in giving to our readers, in this issue of the ALBANY LAW JOURNAL, the masterly address of the Hon. W. A. Purrington, of the New York bar, before the Church Congress at Providence, R. I., on November thirteenth last, on the subject of Eddyism Before the Law." It is, perhaps, no exaggeration to say that no man in the United States is better equipped to expose the fallacies of the so-called "Christian Science,”—an obvious misnomer, because the cult is both unChristian and unscientific,- than is Mr Purrington. He has long been engaged in this exposé, and has devoted much of his valuable energies to the procurement of remedial legislation, a subject which is hedged about by damages, liquidated or unliquidated, in cases not many difficulties, not the least of which is the sounding in tort, in respect of which claims the ever-present danger of making martyrs of party would be entitled to redress against the The demurrer is to a petition stating in effect that the petitioner, while on his way to the marshal's office in the post-office building in the city of Brooklyn, was injured by the incompetence of a person in charge of an elevator in said building, operated by the United States, which was a breach agreed to carry the petitioner safely. The cause of of an implied contract whereby the United States action exists, if at all, under that part of the Tucker act of March 3, 1887 (24 Stat. 505), which permits recovery against the United States for claims founded upon any contract, expressed or implied, with the government of the United States, or for the license is expressed or implied. In the present case the license to enter and use the elevator is implied; hence it would be asserted that there was an implied contract to enter. Here, again, the suggestion is to imply a contract for the purpose of raising a duty, when the law already imposes the duty without implication of a contractual relation. Moreover, the courts and systematic writers have not classed with contracts a mere permission to do or forbear the doing of an act, but have rather regarded such license as authority to do something that otherwise would be unlawfully done. Hence it cannot be inferred that congress, by use of the term implied contract,' intended to include mere breaches of duty productive of injury to the licensee upon property of the government. Breach of Marriage Promise - Damages. In Hahn v. Bettingen, an action for breach of promise of marriage, the plaintiff had testified that she was engaged to B. and at the solicitation of the defendant she broke her engagement and promised to marry him. The Trial Court instructed the jury that if the plaintiff broke her engagement with B. at the solicitation of defendant and on account of his promise to marry her, they might consider as an element of her damages her loss of the opportunity to marry B. Such instruction was held reversible error. The court said in part: United States either in a court of law, equity or admiralty, if the United States were suable." The elevator is the usual passenger elevator employed in buildings of the United States, and is devoted solely to the purposes of the government. The United States was not a common carrier in the operation of such elevator, for no one can be considered as a common carrier unless he has in some way held himself out to the public as a carrier in such manner as to render him liable to an action if he should refuse to carry for anyone who wished to employ him' (Allen v. Sackrider, 37 N. Y. 341, 342). Neither did the United States expressly stipulate with the petitioner for his carriage, nor did the law imply such undertaking. The law does not imply a contract to carry even in the case of common carriers. It often happens that a common carrier of goods does make a contract for their transportation. Under existing modes of business such contracts are usually made by such carriers and perhaps less frequently by common carriers of passengers. If an expressed contract to carry exists, the declaration may be upon the contract, although the of fended person may declare upon the duty imposed by law. But when there is a mere refusal to carry, or injury or delay, the declaration should be upon the duty implied by law, and not upon the contract, unless there be some negotiation between the parties tantamount to an agreement; in other words, a contract to carry is not implied. If it exists, it is because it has been expressed; for, where the law imposes the duty to carry, it would be idle to imply a contract to carry. When the law commands something to be done, it need and does not resort to the fiction that the party commanded impliedly contracted to do the act. Hence there is no implied contract for the reasons stated, even if the United States be regarded as a common carrier., But the true relation of the parties in fact and legal theory is this: For the purpose of transacting business with its officials, the United States extended to the petitioner a license to enter its building and to use in connection therewith the facilities for passing from floor to floor. This permission imposed a duty upon the government. The duty respecting its elevator was similar to that relating to the safety of the floors, stairs or any other part of its building., The duty was the same as that imposed upon the owner of any building having a public relation. The duty grew out of a permission to enter and to use the building for the purpose for which it was intended. This permission imposed upon the United States the duty to use ordinary care that the facilities offered to its licensees should be in a state of reasonable safety, and a breach of such duty would constitute culpable negligence. Hence ise. Such, however, was the clear legal effect of the declaration in the present case must be in tort, which brings the case within the exception stated in the Tucker act. The learned counsel for the petitioner urges that a license to enter private premises is a contract, expressed or implied, accordingly as We hold, with some hesitation, that the exception was sufficient. It is impracticable to lay down precise rules for the assessment of damages in an action for a breach of promise of marriage. Within reasonable limits, the measure of damages is a question for the sound discretion of the jury in each particular case. And in assessing the damages they may take into consideration the plaintiff's pecuniary loss, her loss of opportunities during her engagement to the defendant for contracting a suitable marriage with another, the disappointment of her reasonable expectations of material and social advantages resulting from the intended marriage, the injury to her health or feelings, the wounding of her pride, the blighting of her affections and the marring of her prospects in life, by reason of the defendant's promise and his refusal to keep it. Compensatory damages may be awarded for any or all of these causes if the evidence in the particular case warrants it. But no adjudged case, so far as we are advised, has ever gone to the extent of holding that because the plaintiff broke her then existing promise to marry another man, at the solicitation of the defendant, and promised to marry him, the loss of the opportunity to marry her jilted lover might be considered by the jury in assessing her damages for the defendant's breach of his prom the instruction complained of in this case; for it plainly directed the jury that if the plaintiff broke her previous engagement with Mr. Bach at the solicitation of the defendant, and on account of his promise to marry her, they might consider as an element of her damages the loss of the opportunity stable, but not including any person or persons to marry Mr. Bach. This proposition is ethically and legally unsound; for it enables the plaintiff to take advantage of her own perfidy and recover damages for her own breach of her engagement with Mr. Bach. TESTAMENTARY TRUSTEES. DESIGNATION BY OFFICIAL TITLES ONLY. NEW YORK COURT OF APPEALS. In the Matter of the Judicial Settlement of the Trustee Under the Last Will and Testament of The naming of trustees in a will to administer a charitable trust, who are designated by their official titles only, viz., “the selectmen or other municipal authorities of the East Parish of my native town, Barnstable," is a sufficient designation to render them competent to take and administer the trust, as individuals. When such a trust is valid by the laws of the State where it is to be executed the provision will be carried out and the fund paid over to the trustees designated. Appeal from an order of the Appellate Division, First Department, affirming a decree of the Surrogate's Court of New York county. wholly dependent upon the said town or parish for their support; and such appropriation and distribution to be so made to such respectable poor persons without distinction of age, relation or color, but to be only made to such persons as are native-born citizens of the United States or the descendants of such native-born citizens." The testatrix died in 1881, and her sister, Esther Frances, received the income of this fund until her death in 1896. The Surrogate's Court found, as a fact, “that by the law of Massachusetts the trust so attempted to be created would there be a valid trust, and the court there would have the power to appoint a trustee on its appearing that the testatrix had failed to disclose such a trustee competent to act." It further found "that there was in the will of said testatrix no trustee designated competent to take and administer the trust attempted to be created by the eighth paragraph of her will.” As a conclusion of law, the court found that the bequest in the eighth paragraph of said will is void, and that the property thereby attempted to be disposed of passed to the residuary legatee. The Appellate Division affirmed, with a divided court, on the opinion of the surrogate. We thus have the single question presented whether this testatrix succeeded in naming trustees competent to carry out the provisions of a trust concededly valid under the laws of Massachusetts. It is further found by the Surrogate's Court that the town of Barnstable was incorporated in 1639; E. Countryman, for appellants; James McKeen, that in 1717 the town was divided into two parishes, for respondents. BARTLETT, J.-This appeal involves the validity of the eighth clause of the will of Catharine Sturgis, deceased. By the seventh clause of her will she gave to her sister, Esther Frances Sturgis, the income on the sum of $6,000 during the term of her natural life. to wit, the East and West Parishes; that distinct municipal officers have never been chosen for either parish; that the selectmen, who were also assessors and overseers of the poor, are chosen for the whole town, and, as such, exercise the duties of said officers throughout the several villages making up the town; that the parish lines are recognized by the assessors in the assessment of taxes; that by the law By the eighth clause she gave and bequeathed of Massachusetts towns were not entitled to take 'to the selectmen or other municipal authorities of by bequest money in trust, the income to be applied the East Parish of my native town, Barnstable, for the benefit of a portion of the inhabitants of a in the county of Barnstable and State of Massachu- territorial subdivision of the town for the purposes setts, or their successors forever by what name and limitations set forth in the will of said testatrix. soever such municipal authorities may at any time It seems to us that there is no difficulty in dealbe known, the said sum of $6,000 after the death of ing with the phraseology of the eighth clause of my said sister, Esther Frances, in trust, neverthe- the will which describes the selectmen or other less, that the said selectmen, or other municipal municipal authorities as of the East Parish of the authorities, shall keep the same on deposit with the town of Barnstable. The fact that the town is said Massachusetts Hospital Insurance Company, | divided into two parishes and the selectmen and and shall appropriate the annual interest, income municipal authorities are chosen for the entire town or profits thereof in sums of not less than ten dol- of Barnstable, but discharge their duties in both lars or more than fifty dollars to any one person parishes, is sufficient to satisfy the language of the in any one year, in the discretion of said selectmen will. or other municipal authorities, so as to do the most possible good for the relief and benefit of respectable persons in reduced circumstances of either sex in the said East Parish of the said town of Barn As we read this will, the act of the testatrix in selecting trustees was most natural and effectual under the circumstances. The testatrix found herself in this situation: the fund she proposed to have invested, devoting the income to charity, was first is no uncertainty, with respect to the individuals to be enjoyed by her sister for life. This life estate might cover a very considerable period of time, which proved to be the case, and the trust for charitable uses was to remain in force indefinitely, as was permitted by the law of Massachusetts. In this emergency, what was more natural than for the testatrix to appoint individual trustees; but, by official description, that was quite definite. In this manner she selected trustees and a line of successors apparently unbroken for an indefinite period corresponding with the duration of the trust. There was no appointment of these officers in their official capacity to the position of trustees, nor was the bequest, in any legal sense, a gift to the town of Barnstable. The trustees appointed are private citizens and are to act as such, but by reason of their official position are likely to have a knowledge of local affairs that will aid them in the discharge of their duties. In this State, where the suspension of the power to alienate real estate and the absolute ownership of personal property is measured by lives in being, testators are not often called upon to act under the circumstances presented in the case before us. A very instructive case in the Supreme Court of the United States bearing on the right of a testator to select individual trustees by their official titles originated in this State (Inglis v. The Trustees of the Sailors' Snug Harbor, 3 Peters, 99). In this case, in 1830, certain provisions of the will of Robert Richard Randall were under review. He gave and devised the residue of his estate, which consisted of a large amount of real and personal property, to the chancellor of the State of New York, the mayor and recorder of the city of New York (and several other persons by their official descriptions only) and their successors forever, in trust, to erect and build on the lands devised, out of the rents and profits, an asylum or marine hospital, to be called "The Sailors' Snug Harbour," for the purpose of supporting aged, decrepit and worn-out sailors, etc. who were to execute the trust. The designation of the trustees, by their official character, is equivalent to naming them by their proper names. Each office referred to was filled by a single individual, and the naming of them by their official distinction was a mere designatio personae. They are appointed executors by the same description, and no objection could lie to their qualifying and acting as such. The trust was not to be executed by them in their official character, but in their private and individual capacities." The court, in an elaborate opinion, sustained the devise, holding it divested the heir of his legal estate or charged it in his hands with the trust declared in the will. In Wells v. Heath (10 Gray, 17) the Supreme Judicial Court of Massachusetts held that a devise to the selectmen of a town and their successors in office forever," in trust to pay certain rents and profits to charitable uses, took as individuals. Merrick, J., said (p. 24): “The devise to the selectmen of the town of Topsfield was a good and sufficient description of the persons who were to take the estate as devisees. It is clear that any words which are sufficient to denote the persons meant by the testator and to distinguish them from all others will secure to them the property or estate which may be given them in a will (6 Cruise Dig., tit. 38, chap. 10, § 27 et seq.)." We are of opinion that Catharine Sturgis, the testatrix, designated competent trustees to administer the trust created by the eighth subdivision of her will, and, as that trust is valid under the laws of Massachusetts, the fund involved and its accumulations, if any, should be paid over to the said trustees. The order of the Appellate Division and the surrogate's decree should be reversed, with costs in all the courts, and the case remitted to the Surrogate's Court, with direction to modify the decree so as to direct the surviving executor to surrender the fund to the appellants, as trustees under the eighth subdivision of the will of Catharine Sturgis, deceased. PARKER, Ch. J.; O'BRIEN, MARTIN, VANN and The will further provided that if his intention, as above expressed, could not legally be carried out LANDON, JJ., concur; HAIGHT, J., not voting. without an act of the legislature, he directed his trustees to secure it and to incorporate under it for the purposes he had specified. A few years after testator's death this legislation was secured, and the corporation of "The Trustees Order reversed. of the Sailors' Snug Harbour in the City of New CON York" has ever since been managed by a board of trustees acting individually, although described by their official titles only, consisting of the mayor, the recorder, the rector of Trinity Church, the president of the Chamber of Commerce and one or two others. Mr. Justice Thompson said, in the course of his opinion: "In the case now before the court there LITERATURE AND THE LAW. COMMENTING on the exceedingly dry character of most legal works, Literature says: The average barrister in practice, if he possesses any literary taste, dissimulates it and lets it wither for lack of nourishment. Seldom is his address in court characterized by any literary grace; rarely, indeed, in his speech brightened even by some illustration drawn from the masters of English literature. Sixty or more years ago we know that even a another, before the Court of Appeal (15 Times L. Rep. 231), the Lord Chief Justice takes "judicial notice of the fat boy in Pickwick. Sometimes a mere name in a report will awaken pleasant fancies, remote enough from the "dusty purlieus of the law." Looking through volume 4 of Bingham's Reports (Common Pleas) for the year 1828 the reader, familiar with his Dickens, when he chances at page 218 upon the case of Brooke v. Pickwick gets a pleasant shock, for the defendant there was none other than the famous coach proprietor whose name was appropriated for the work we know and love so well. Like his fictitious namesake, this Mr. Pickwick was unfortunate in his defense. Mr. Justice Gaselee was concerned in both cases, although in Bardell v. Pickwick he appears as Mr. Justice Stareleigh. The real Mr. Pickwick, however, was not sued by any Mrs. Bardell for damages in respect of wounded affections, but by a prosaic traveler for the loss of his trunk. in the murky regions of the Bankruptcy Court Basil from Carey's play "Chrononhotonthologos," the Montagu would now and then "enliven the discus- well-known lines: sion of a point of law by citing some weighty Go call a coach, and let a coach be called, aphorism, or brilliant illustration from the De And let the man who calleth it be the caller, Augmentis or the Novum Organum "- a descrip- And in his calling let him nothing call tion, which, it is amusing to recall, was only Mac- But coach! coach! coach! O, for a coach ye gods. aulay's full-dress account of an incident which he While more recently still in a suit before Mr. Jusrelates in a letter to his sister written from Basing-tice Kekewich, as to the validity of an old custom hall street: "Basil Montagu is haranguing about (L. Rep. [1898], 2 Ch. 120) we find allusions to Lord Verulam and the way of inoculating one's the classic pages of Tristram Shandy; and in mind with truth; and all this apropos of a lying bankrupt's balance-sheet!" Now, alas! there are few at the bar who quote either Milton or Bacon, or, indeed, anything but dreary statutes and musty cases. But the great mass of law books are not only dull, they are absolutely repellent. This may account for the fact that so few lawyers evince an enthusiasm for their science equal to that exhibited by Baron Parke, who is reported to have taken beautiful demurrer" to the bedside of a sick friend to comfort him in his illness, or by the old conveyancer who admitted that it would be somewhat irksome to pore continually over abstracts of title, were it not that now and then he met with "a brilliant deed" which rewarded him for all his labors. But there are exceptions to most rules, and a few modern law books can be read, not only with profit, but with real pleasure. Mr. Birrell's short sketch of the Duties and Liabilities of Trustees, and his more recent volume on the Law of Copyright, are almost as fascinating as Obiter Dicta. Or, take Sir Frederick Pollock's important works on Torts or Contracts, or Mr. Edward Manson's delightful little book on Dog Law a work which, probably, has the unique distinction of being the only English law book provided with a pictorial frontispiece, a reproduction of Landseer's Laying Down the Law or some of the articles in the recentlyissued Encyclopedia of English Law, and they will dissipate the notion that legal text-books must necessarily be mere dull compilations. Occasionally, too, an unattractive work may be enlivened by some interesting literary reference which falls upon the stream of dreary narrative like a glint of summer sunshine. To find Sam Weller's evidence in Bardell v. Pickwick set out in Pitt-Taylor on Evidence as an apposite illustration of the working of one of our evidential rules is delightful. In reported decisions we sometimes light upon equally pleasant surprises. In one of Lord Campbell's Reports (vol. 3, p. 539) we have a passage from Boswell relating to Jack Ellis, the last of the profession of money scriveners, set out in a note; in a Scotch report for 1829 (7 Shaw & Dunlop, pp. 159, 160) almost a page is devoted to an extract from the Antiquary; in volume 33 of the Law Journal Reports (Q. B.), p. 149 is plentifully dotted with poetical quotations to illustrate the use of the word "team;" in a recent case (14 Times L. Rep. 532) the Lord Chancellor breaks the continuity of a prose narrative by quoting from Shakespeare, and These may be small matters, but to find the prevailing dulness of law publications enlivened in any way, and to discover that not all lawyers and writers on legal subjects have vowed exclusive devotion to the shrine of the Annual Practice and kindred works, are, in the circumstances, matters for congratulation. EDDYISM BEFORE THE LAW.* * Spoken under appointment before the Church Congress at Providence, R. I., November 13, 1900, lecturer on the Relation of Law to Medical Pracby W. A. Purrington, Esq., of the New York bar, tice in the University and Bellevue Hospital Medical College and the New York College of Dentistry, and counsel to the New York State Medical Association and State Dental Society. Printed from advance sheets of the proceedings, by permission of the publisher, Thos. Whittaker, Esq. I assume that in honoring me by your invitation to address this congress, in association with learned doctors of divinity and medicine, you desire me to discuss from the standpoint of the law the strange madness, soi disant Christian Science, which we may better speak of as Eddyism, since it is neither Christian nor scientific. This brings up for consideration two questions: |