testimony of experts is a question to be determined by the jury; that such testimony should be considered by them as other testi mony is considered, and such importance should be attached to it as the testimony itself seems to warrant, when viewed in con nection with all the facts and circumstances developed upon the trial; that while jurors should never surrender their judgment to that of the expert or give a controlling influ ence to the opinions of the scientific witness simply because they are the opinions of such a witness, they should not, on the other hand, dismiss such testimony without considera tion, as belonging to a suspicious class and as being rarely entitled to credit; that it is the duty of the jury to consider carefully all the testimony submitted, both ordinary and expert, keeping in mind that the object of the latter is to furnish to them aid in their delib erations by informing them in regard to matters that lie outside the domain of ordi nary experience. A charge embodying the substance of the foregoing would probably, according to the general concensus of opin ion, be proper, and some such instructions should usually be given. It is also proper for the trial court to advise the jury that in estimating the value of expert testimony, the standing of the expert, his opportunities for becoming proficient in the field of investiga tion that he claims as his specialty, and the means that have been open to him for gain ing knowledge in regard to the case upon trial, should be taken into consideration. CONCERNING "Malice as Ground for Civil Action," the May number of Case and Com ment, after mentioning certain recent cases, annotated in L. R. A., says: The exhaustive annotation accompanying these cases reviews the decisions bearing •on the subject, and, out of their chaotic con dition, evolves the rule that one's motive in •exercising an absolute right cannot be ques tioned; but that, where the right is correl ative, it must be exercised with due regard to like rights of others; and hence, one who exercises such .a right for the sole purpose of injuring another is liable for the damage
inflicted. The malice must be what has been denominated as "unmixed malice,"—that is, it must be the sole and exclusive motive that actuated the person committing the act com plained of. If he receives any benefit from the exercise of the right other than the grati fication of his malicious desires, he is not lia ble for the resulting damage. There is a third class of cases, in which the offending person is not engaged in the exercise of a right. Such conduct is clearly actionable. . . . From the standpoint of reason, it seems right that the courts should regard malice as an important element in questions of tort. In the greater wrongs, which constitute crimes, malice is often the element of chief importance. If "malice aforethought" is to be considered a chief factor in a capital crime, what reason can there be why in the lesser wrongs, for which the only remedy is by civil actions, the element of malice should not be taken into account? Indeed, in a variety of cases this has always been done, as in cases of malicious prosecution, the malice that authorizes punitive damages, that which defeats a claim of privilege in libel, and in various other instances. It is equally false to say that malice will always make an act unlawful. The difficulty is to find a rule by which to determine when this will, and when it will not, be so. The rules stated above seem to be as definite as any that can yet be formulated. THE address on "Constitutional Law of the United States as moulded by Daniel Webster," delivered by Everett P. Wheeler, of the New York Bar, before the recent meet ing of the New York State Bar Association, is printed in the Yale Law Journal for May and in The American Lawyer for April and May. After reviewing the cases involving im portant constitutional questions which Webster argued before the Supreme Court, Mr. Wheeler closed his address in these words: In every one of these leading cases, U ebster successfully advocated the adoption of vital principles of constitutional law against
