Page:The Green Bag (1889–1914), Volume 04.pdf/425

 396

The Grien Bag.

suffering would be spared wild game if sportsmen were better trained. "It is conceded that the sportsman in the woods may test his skill by shooting at wild birds. Why, then, may he not do the same with a bird confined in a cage and let out for that purpose? Is the bird in the cage any better, or has it any higher rights, than the bird in the woods? Both were placed there by the Almighty for the use of man. They were not given to him to be needlessly tortured. Was there anything in the finding of the jury to show that the object of this association was to torture pigeons, we would not hesitate to sustain the judgment of the court below. But no such purpose appears, nor is there any finding that the defendant was guilty of needless and wanton cruelty. The bird was immediately killed as soon as its condition was discovered. "A distinction was pressed upon the argument between the case of a captive bird and one at large in the woods. In the latter case there is a necessity to shoot it in order to capture it for food or any other lawful purpose; and if wounding results, it is an unavoidable incident, — while in the case of a captive bird, no necessity exists for putting it to death in this way. Some force may be conceded to this as an ab stract proposition, but we do not see its application to the facts of the case. The right to kill the pigeon was and must be conceded; and there is no finding ,of the jury that its suffering was greater because of the manner of its death than if it had been killed in some other way. We do not say there might not be a violation of the Act of 1869 at a shooting-match, but in our view the facts found by the jury do not bring this case within it. The judgment is reversed." Our jury trial, requiring the unanimous verdict of twelve men, is time-honored, inherited from our English ancestors; yet every lawyer and judge knows its uncertainty, and its value has become very questionable. In a recent case in Massachu setts, involving quite an amount, and where to out siders there seemed to be but little doubt what the verdict should be, there were three disagreements. At the last trial one of the jurors stated that during their deliberations they varied all the way from eleven to one for the plaintiff to eleven to one for the defendant. It was remarked that the one juror who refused to agree against the plaintiff was from the same town. Is or is not the French rule, permitting a verdict by eight out of twelve, the better way? In New Hampshire cases in volving less than one hundred dollars can be referred to judges; and the result has been very

satisfactory. It has certainly largely diminished litigation and legal expenses.

A LAWYER'S VALENTINE. This year of 1892, Saint Valentine's the date. Now this indenture witnesseth : — That of my whole estate, To her I love the best I give, to have and hold forever In full fee simple absolute, the true love of the giver. But lest the grantee in this deed should ever wish to alienate To others, from herself, the whole or any part of this estate, Unless she first shall have obtained from the said grantor his permission, And do the same with his consent, now, therefore, This express condition Is unto this said gift attached, That if she any part of this Conveyed estate, however small, shall give away, she owes a kiss To the said grantor in this deed, unless the said grantor relents; But if he does not, he may claim the penalty for each offence. And the said grantor herein named, in testimony of his love, Has set hereto his hand and seal, the day and year first named above. James G. Burnett, in Puck.

From the case of Stewart v. Benninger (27 Weekly Notes of Cases, p. 381) the following extract is made : — "According to the statement of the plaintiff, the defendant kept a very voracious set of hogs. They were suffered to run at large without rings or yokes. They were of the slab-sided, long-snooted breed, against whose daily and nocturnal visits there is no barrier. They were of an exceedingly rapacious na ture; and six of them at one sitting devoured fifty pounds of paint, thirty gallons of soft soap, four bushels of apples, and five bushels of potatoes, the property of the plaintiff. They raided the plaintiff's spring-house, upset his milk-crocks, and wallowed in his spring, and for several years foraged upon his farm, having resort to his corn, potatoes, rye and oats crops, to his garden, and to his orchard and meadow. They obtained an entrance by rooting out the fencechunks and going under, or by throwing down the fences, or by working the combination on the gate.