Page:The Green Bag (1889–1914), Volume 08.pdf/514

 Rh Mileage Books. — In Eaton v. Mclntire, 88 Me. 578, it is decided that a railway conductor may de tach coupons from any part of a mileage book that he chooses, and is not bound to heed the request of the passenger to take them from the back. The Court regards the evidence of the custom to detach them from the front as conclusive. " What is customary is generally lawful. Custom makes law," say the Court. It is difficult to conceive of a man so fond of law that he would sue a railroad company for conver sion of his mileage book in such circumstances. His love of mathematical order must have cost him a snug sum of money.

Christianity in the Law. — In Mayer v. Frobe, 40 W. Va. 246, the Court overrule their former deci sions in 31 W. Va., and restore their precedent hold ing that exemplary damages are recoverable in certain cases. The judge who writes the chief opinion puts this on the somewhat fantastic ground that such dam ages are recognized by the Mosaic law, " in propor tion to the evil intent of the wrongdoer." The judge regards this as " a more valid, ancient and sacred rea son," and adds that " the common law is not agnostical, atheistical, or even deistical, but is unswerv ingly theistical. As its crowning glory and chief excel lence, it believes in the God of Moses." In answer to this, four of the judges file a memorandum disclaim ing their intention to assert for the law " any particu lar, distinctive, Christian creed or dogma"; deny ing that it is the duty of the Court " to expound re ligious principles, or expressly or impliedly disparage any man's belief"; professing " the highest respect and regard for Christianity," but deeming it improper, in a judicial opinion," to appear to espouse or enforce any particular or distinctive Christian creed." So the red-hot topic of exemplary damages has even burned its way into theology! Judge Dent pronounces a very pious and edifying opinion, but if his reason ing were followed into other channels, an imitation of the Mosaic code would result in some queer conse quences. This action was by a wife, under the civil damage act, and she had a verdict of $750. We have no disposition to quarrel with any law or deci sion that renders a drunken husband worth $750 to his wife.

"Guest." — It is said that a justice of the New York Supreme Court recently charged the grand jury that a person, living in the place where the hotel is conducted, who boards during the week at some other premises and only takes a meal or a lunch at the hotel on Sunday, is not a " guest " within the meaning of the Raines law. He declared that this practice was clearly an evasion of the law. As upon

47*

this ruling an indictment was found against a hotel proprietor, the question may be taken before a higher court. It is not altogether clear that the judge is right. It has been held that purchasing liquor at an inn constitutes one a guest. McDonald v. Edgerton, 5 Barb. 560. The contrary was held in Queen v. Rymer, 2 Q. B. Div. 136, the bar being part of the hotel, but having a separate street entrance, and the drinker living within twelve hundred yards.

Running at Large. — In Briscoe v. Alfrey, Ar kansas Supreme Court, 30 L. R. A. 607, it was held that a jackass, which escaped .from its enclosure, without the negligence of its owner, was " not running at large," within the meaning of a statute charging the owners of animals running at large with all injuries inflicted by them. The Court said : " It is the inten tional or negligent permission of the owner for his animal to run at large which subjects him to the civil arid penal consequences prescribed by the statute. Whether the owner has exercised such care as the law requires if the facts are disputed is a question for the jury. The following authorities are cited to sup port the views we have expressed. Bishop, NonCont. L. §§ 1220 et seq.; Wolf v. Nicholson, 1 Ind. App. 222; McBride v. Hicklin, 124 Ind, 499; Rutter v. Henry, 46 Ohio St. 272; Leavenworth T. & S. F. R. Co. v. Forbes, 37 Kan. 448; Fallon v. O'Brien, 12 R. I. 518, 34 Am. Rep. 713; Presnall v. Raley (Tex.) 27 S. W. Rep. 200; Klenberg v. Rus sell, 125 Ind. 531; Mcllvaine v. Lantz, 100 Pa. 586, 45 Am. Rep. 400, — all cited by appellee's counsel." Add Wright v. Clark, 50 Vermont, 130; 28 Am. Rep. 496. There a hound kept for the chase, and chained when not hunting, was pursuing a fox, fol lowed by his master and S., a fellow huntsman. While out of sight of his master, but near to S., the defendant accidentally shot him in firing at the fox. Held, that the dog was not "running at large" within the meaning of a statute authorizing the killing, of animals. The Court dwell on the tractability of the dog, and avow that this dog was no more running at large " than a boy while going on an errand at his master's command." In Jennings v. Wayne, 63 Maine, 468, the owner of a mare and colt turned them out to water Sunday afternoon, on the high way of the defendant town. The colt ran away, and the plaintiff mounted the mare, took a turn in the halter around her nose, and pursued. While so doing, the mare broke through a culvert and was injured. It was held that the animals were not "at large without a keeper." In Amstein v. Gardner, 132 Mass. 28; 42 Am. Rep. 421, a horse led on the highway escaped with out his keeper's fault, and was injured by a train on