EDITORIAL DEPARTMENT

put by the defendant in a situation where he is only suffering inconvenience and to avoid that he voluntarily runs into danger, he can not recover, though if the situation had been one of alternative dangers he may recover.

317

applies one principle to one class of litigants and the opposite principle to another class, though the circumstances are the same; form ulates affirmative rules of right and remedy for special kinds of property or business; changes the statute law radically because in its judgment the legislature has been illadvised, or tardy in heeding the voice of re PRACTICE (District Attorney) form; then certainly it may be said that the AN entertaining and instructive account of province of the legislature has been usurped. the work "In the District Attorney's Office" The disposition of the respective departments in New York, by Charles C. Nott, Jr., appears of an American government to self-aggran in the Atlantic Monthly for April. dizement by encroachment upon the rightful domain of other departments is well recog nized, and, on the whole, the legislative depart PRACTICE (Judicial Legislation) ment has been the chief aggressor. But in THE impossibility of continuing indefinitely the broad field of boundless opportunity our present system of case law with the modern afforded by the litigation of New York, its multiplication of authorities is the inspiration judiciary may be seen to have manifested the of an article on "Judicial Legislation in New same tendency on quite an elaborate scale." York" in the April Yale Law Review (V. xiv, p. 312) by Wilbur Larremore. After quoting extensively from Mr. Whitney's article on TORTS (Insanity. Negligence) the subject, reviewed in our January number, WILLIAM B. HORNBLOWER contributes an art he submits that "We are not living under icle on "Insanity and the Law of Negligence" a system of scientific exposition and develop to the April Columbia Law Review (V. v, p. ment of abstract principles, but, to a large 278). He submits that though text-writers degree, under one of judicial arbitration in have declared the lunatic liable for his torts which the courts do what is just in the case just as a sane person, "it may be questioned at bar and cite the nearest favorable previous whether there is any sufficient authority in decisions as pretexts." He calls attention the reported cases for the proposition." to the recent startling decision of the New "The reasons assigned by the text-writers York Court of Appeals in the "Transfer for the rule that an insane person can be held Cases" where the court expressly disregarded liable civilly for damages for tort, although not the intent of the Legislature in interpreting liable criminally for the same act, are based a plain statute. entirely on expediency." "It is question "While none of the attempted definitions able whether any one of these reasons is logi of judicial law-making power may be satis cally satisfactory. The analogy between an factory, its general nature is well understood. infant and a lunatic is only partially correct." The courts constantly are required to make "The other reasons assigned for holding a luna new law, but in so doing they should proceed tic responsible in tort are also open to serious by development and extension of settled prin question." "Without, however, going into a discus ciples. Radical departures from existing rules, abrupt changes of law, arbitrary discrimina sion of the general proposition that an action tion between substantially analogous states will lie against a lunatic in tort, and assuming of facts, should be made only by a legislature; that this is the rule of law, whether rightly or and constitutions forbid special legislation wrongly so, it is, nevertheless, subject to cer even by the representatives of the people un tain qualifications. Thus, it is well estab less some legitimate basis of class distinction lished that where actual malice is an essential is made to appear. When — as has been ingredient in the tort, the defendant, if shown to have been done in New York — a insane, cannot be held liable, and even in court lays down broad rules of public policy; cases where he may be held liable without