author" makes no pretense to originality," he says, and frankly confesses that from Park and Scribner "he has culled to a very considerable extent the matter to be found in his own work." The volume is very well printed. MCCALL ON REAL PROPERTY. The Law of Real Property, with an appendix of Forms of Conveyancing adapted to the law of the State of New York, and to States having similar laws. By Henry S. McCall. Albany, N. Y.. Wm. Gould & Son. 1883. Pp. xix, 482. The author, well known as the learned lecturer on this topic in the Albany Law School, has here furnished a remarkably concise and intelligible monograph, divested of pedantic and burdensome learning, and adapted to the imperative demands of the busy conveyancer. We also deem it especially valuable as a text-book for the elementary student. Mr. McCall has had the intelligence and the industry necessary to make his book short, and it will answer a useful purpose by the side of the voluminous works of Washburn and others. Judgment affirmed with costs - Fox v. Smith, Mahony v. City of Buffalo; Willis v. Smyth; Semel v. New York, New Haven and Hartford Railroad Company; McGuire v. Spence; Kohler v. Adler; Murray v. The Troy and West Troy Bridge Company. Order affirmed with costs- Ramsdem v. Ramsden. Judgment of General Term and decree of the surrogate vacating the decree of Surrogate Suffern, November 10, 1879, reversed, with costs to be paid by the respondent personally In re will of John Hancock.- Order granting new trial affirmed and judgment absolute ordered against the defendant for the plaintiff, damages and costs Bradley V. Mirick. Reargument ordered-Wadsworth v. Lyon, Coleman v. Burr. -Judgment reversed and judgment rendered on the demurrer for the defendants, without costsFarnsworth, receiver, v. Wood, Same v. Dewey; Same v. Wilson.Judgment reversed and new trial granted, costs to abide the event-Miller v. Miller.-Motion to put cause on preferred calendar. Denied, without costs-Dissosway v. Hayward.-Motion to put cause on preferred calendar. Granted, without costsBerttes v. Nunan.--Motion to dismiss appeal. Granted, with costs-Talmage v. Whiton.-Motion to amend order. Order to give leave to appellant to dismiss his appeal upon the payment of costs of appeal and of the motion-Smith v. Cooper, sheriff, etc.- -Motion to dismiss appeal. Denied, without costs-In re will of O'Neill. 61⁄2 days of counsel's speeches, 32% days of evidence, and 93 cases to treat upon-each one a cause in itself; the whole being nothing less than an investigation of ten years of the plaintiff's life.- -At the dinner of the Boston Bar Association on Tuesday evening Dr. Oliver Wendell Holmes was introduced as the father who went in search of a captain, and finding him, presents to us now his son, the judge. Dr. Holmes, on rising, held up a sheet of paper and said: You see before you [referring to the paper] all that you have to fear or hope. For 35 years I have taught anatomy. I have often heard of the roots of the tongue, but I never found them. The danger of a tongue let loose you have had an opportunity to know before, but the danger of a scrap of paper like this is so trivial that I hardly need to apologise for it. [Laughter and loud applause.] He then read as follows: * His Honor's father yet remains His proud paternal posture firm in; The serried bayonet's gleam appalling, THE NOTES. Criminal Law Magazine for January has the following leading articles; Comparative Criminal Jurisprudence, by Francis Wharton; Jury Trial, by John D. Brandon. The latter advocates a verdict of less than twelve. Never in felonies, say we. The C. L. M., under the head of "Humors of Criminal Law," "When a thief steals five cents he don't think says: half the dime that some day perhaps old nickel get him." This shows very bad proof-reading! or a very reprehensible attempt at a joke. The trial of the famous Belt libel suit, just ended in London, involved, according to a statement of the judge, the production of 62 exhibits, 129 busts and drawings, 143 witnesses and depositions, 1,517 pages of closely written notes, "Do right: 'tis naughty not to do it!" The whirligig of time goes round, And changes all things but affection. One blessed comfort may be found In Heaven's broad statute which has bound Each household to its head's protection. If e'er aggrieved, attacked, accused, His offspring's legs for locomotion. You smile. You did not come to weep, The Albany Law Journal. ALBANY, FEBRUARY 17, 1883. laws, and compel the better classes of citizens to perform jury duty, which they so much dislike and so habitually shirk. It is now said that certain employees in the office of the commissioner of juries in the city of New York have been for years receiving large sums from citizens as bribes to enable them to HAT matter of the abnormal increase of lawyers escape from jury duty. It is very convenient for CURRENT TOPICS. Tin recent times has given rise to alarm not only in New Jersey but in England. The London Times has a long article on the subject, and asks: "What is to become of these successive crops of young lawyers, and how are they to live?" It seems from recent statistics that the whole bar of England just a century ago numbered less than 1800. To-day there are some 11,000 or 12,000. (That does not seem very large to us in this State, where, with 5,000,000 of inhabitants, we have 8,000 or 9,000 lawyers.) The population of England has trebled in a century, but the lawyers have increased three times as fast. The Times says: "Since 1800 a vast mass of legal reforms has been carried into effect. The law of real property, abstruse though it be, is simple as compared with its condition eighty years ago. In every branch of law, endeavors have been made to make us less of a lawyer-ridden people. One however who looks at the length of the lists of those who are called to the bar, or who are admitted as solicitors, will have much difficulty in understanding that these efforts have been attended with much effect. * * * One result will probably be that in the struggle for existence, the maxim 'To him that hath shall be given,' will hold good in these days of competition, and that firms which are wealthy and powerful, which have capital and influence, are likely to flourish still more. The prospects of those who have a moderate amount of business, and are content to move along in a quiet, humdrum fashion, are by no means so good. Such firms are in danger of being swallowed by the Tritons of the profession, or of being driven out of the field by vivacious minnows." We do not see why the public should be so anxious about this matter. There seems to be no similar anxiety about over-crowding in other walks of life. Nor can we understand this fear of being "lawyer-ridden." The public certainly are not bound to support lawyers against the public will, and those who cannot make a living must go to the wall and find other employment. It seems to us that the editorial profession is over-crowded we refer to the secular pressbut we do not complain of being editor-ridden, although we frequently feel as if we would like to be rid of some of the editors. But all this sort of thing will probably regulate itself by the law of demand and supply. Meantime we do not hear that there are more lawyers in the poor-houses than persons of any other occupation, and we cannot conceive any way of preventing people from becoming lawyers, unless we can contrive to kill all the lawyers at nurse. We have long believed and insisted that the true way to reform the jury trial is to enforce the jury VOL. 27-No. 7. men to rail against the hardships and inequalities of taxation, when they themselves are exercising ingenuity and straining their consciences in evading taxes, and to lament the corruption of politics when so many good men persistently shun office; and so it is easy to cry out against the jury system and at the same time pay money and invent plausible excuses to get off from jury duty. A great laugh went the rounds of the press the other day because some coroner - probably as a joke— summoned General Grant, Jay Gould, Roscoe Conkling, and others like them, on a jury. That coroner unconsciously did a very sensible thing. If such men could be persuaded or compelled to do jury duty we should have fewer "insensible" or senseless verdicts, and there would be less excuse for attributing faults to the system which are really only faults in the administration. We are strengthened in this opinion by some remarks of Mr. Austin Abbott, in the Daily Register. He says: "The animadversions of theorists against the jury system have no more efficient support than is afforded by the habitual disposition of intelligent citizens to evade their share of the duty. The corruption which has been going on in the matter is worse than any ordinary official extortion; for it has been not merely a corruption of officers, but the cause of degeneracy in the chief instrument of justice. The virtue of the jury system is dependent on the extent to which its functions are distributed through the community and the universality of the service. All classes of citizens ought to be thus brought in turn into the courts, and to sit there interested though impartial spectators of the manner in which judges, attorneys and officers conduct themselves and perform their duties. The bar cannot afford to lose the inspection which throughout the State is thus given to judicial proceedings; nor can the State itself afford to lose the effect of this constant presence, to say nothing of the service of the jurors in determining particular causes as they arise. The jury is the window through which the country looks in upon the courts; and every citizen not exempt by law should be compelled in turn to take his share of this double duty. Those who pay illegally to get off should be admonished in some effectual way that such evasion is a wrong to others upon whom double duty is thrown, a threat to the administration of justice itself, and a contempt of the court whose summons is thus met with bribery." Senator Koch has introduced in our Senate a bill amending subdivision 5 of section 3251 of the Code of Civil Procedure, in relation to term fees in the Court of Appeals, by providing that a "term," as therein mentioned, shall be deemed each calendar month during which the court shall sit to hear ap NOTES OF CASES. [N McLean v. Brush Electric Light Co., Hamilton peals upon the calendar. The senator is too modest; Common Pleas, Ohio, 5 Cin. L. Bull. 65, it was why not call every week a "term." There is just as much warrant for it. These term fees are understood to be allowed for doing something. When counsel puts his case on the calendar, that is the end of it, as a general thing, until he argues it. He seldom has even to watch it very closely, for the court announce their approach to it. He knows it cannot be reached until about a year, and generally it is then reached. When counsel had to notice his cause three or four times a year, and put it on so many calendars for four years, as was formerly the case, these term fees were reasonable. There is no longer any excuse for them, or at least none for splitting the yearly term up into months, and calling each month a term. Such legislation may well warrant people in talking about being "lawyer-ridden." held that the consent of the abutting property owner is necessary to the erection of poles on the street in front of his premises, although the fee of the street may be in the municipality in trust for public uses. The court said: "The foregoing will dispute it, but as it lies at the foundation of proposition seems a simple one, and perhaps no one cases like the one at bar, and as the conclusions which I think must follow may be disputed, I will briefly refer to some of the cases decided by our Supreme Court. In the case of Crawford v. Village of Delaware, 7 Ohio St. 459, the court says, as to the rights of abutting lot-owners, 'the latter have a peculiar interest in the street, which neither the local nor the general public can pretend to claim, a private right of the nature of an incorporeal hereditament, legally attached to their contiguous tle to certain facilities and franchises. This easement, appendant to lots, unlike any right of one lotowner in the lot of another, is as much property as the lot itself.' Applying the above principles, the court held that the plaintiff, who had been injured by the village cutting down the street in front of his premises, was entitled to compensation. Again, in the case of Street Railway v. Cumminsville, 14 Ohio St. 532, applying the same principles, the court en joined a street railroad from laying their track in the street until they had obtained the consent of the abutting lot-owners, or otherwise acquired their interest in the highway; by their meaning of course the interest the abutting lot-owners had in the highway as distinct from the local or general public. In this connection the reasoning of the court on page 458 will be found interesting. Again, in the late case of the Scioto Valley Railway v. Lawrence, 38 Ohio St. applying the same principles, the court refused to disturb the judgment of the court below, enjoining a steam railroad from laying its track in the street until it had obtained the consent Mr. Homer A. Nelson has introduced a bill amend-grounds and the erections thereon, an incidental tiing the Code of Civil Procedure by delegating the power to the judges of the Court of Appeals to supervise the publishing and making of contracts for the publishing of the reports of such courts. There would be no objection to such a bill if it did not warrant interference with or abrogation of exist ing contracts. It is to be hoped that partisanship is not strong enough to work that result under cover of such an innocent and laudable proposal. The bill as proposed authorizes the judges to designate "officers" " of the court to let the contract. This of course means the reporter and clerk. It also authorizes the letting of the contract at a price not exceeding $3 a volume. The present price is $1 a volume. No just fault has ever been or can be found with the execution of the present contract. That contract provides that it shall be deemed abrogated the moment any new law on the subject shall be enacted. This bill therefore is a transparent device, doubtless in the interest of the partisan reporter and his favorite publishers, and the partisan clerk, to abrogate the present contract at $1, and award it to another at $3. Of course the promoters of the bill presume that the judges will not interfere, but will turn the matter over to their "officers." Perhaps the judges would innocently lend themselves to such a scheme, and then again perhaps they would think it their business to see that the people of the State should not be thus defrauded, and that their "officers," kept in power through two years of republican majority in the court, should not be suffered to practice such an injustice on the present publishers, to feather their own nests and those of their favorites. Let us see what a "reform " Legislature will do about it. of the abutting lot owners, or otherwise acquired their interest in the street. In that case the court held that it is immaterial whether the fee is vested in the city or in the abutting lot-owners, so long as it is held upon the same defined uses.' In the State of New York it is held that municipal corporations Own the fee in the streets in the strict sense, and the decisions of their courts have been somewhat at variance with ours, but in the late case of Caro V. Elevated Railway Co., reported in 19 Am. Law Reg., p. 376, the Supreme Court of New York city have adopted the same principle so long maintained by our Supreme Court, and held that railways must compensate the abutting lot-owner for taking from him the quiet enjoyment of his premises to which he is entitled, as between himself and the general public using the street. It seems to me clear, then, from principle and authority, that although the uses to which a street may be put, under a grant for street purposes, may include not only the sewers, water pipes and gas-pipes, as these are all put under the ground, and do not interfere with the abutting lotowner, it is equally clear that this right cannot be extended so as to impose any burden, no matter how slight, on the original proprietor, or his successor in the ownership of the abutting lot, unless a new grant be made; in short without obtaining the consent of the abutting lot-owner, or otherwise acquiring his interest in the highway. * It is contended that a pole of the kind sought to be put by the defendant in front of the plaintiff's premises will do no material injury to the plaintiff. Grant that the one pole does not, the city, as it cannot give a monopoly to any one, must give the same right to every company that wishes to put a pole in front of the plaintiff's premises for lawful business purposes, and when the plaintiff is shut in by a picket fence, how can the court say which pole it is that injures the plaintiff, or which pole shall give place to the * * other?" The statement that the fee of streets in this State is in municipal corporations should be limited to the city of New York and a few other localities. In Dusenbury v. Mutual Union Telegraph Co.. 64 How. Pr. 206, it was held, at special term of the Supreme Court, that telegraph companies have no right to set their poles on streets in the city of New York, in front of persons' lands or residences, without first making compensation to such persons. In Murphy v. English, our Supreme Court, in the city of New York, by Justice Larremore, have held that a contract of employment of a public speaker to "stump" Indiana in advocacy of the employer's candidacy for public office, is not void as against public policy. The court observed: "By statute of this State, imposing penalties for violation of election laws, it is a misdemeanor for any candidate for an elective office, with intent to promote his election, or for any other person in his behalf, to furnish entertainment or money, to procure or compensate voters, or to contribute money for any other purpose intended to promote an election of any particular person or ticket, except for defraying the expenses of printing, and the circulation of votes, hand-bills and other papers previous to any such election, or for conveying sick, poor or infirm electors to the polls (1 R. S. 452, § 6, 6th ed.. This statute was the subject of judicial interpretation in Walker v. Jackson, 5 Hill, 27, in which it was held that a 'log cabin' which was used to promote the success of a particular candidate, by furnishing entertainment for voters, was a violation of its provi 387), was followed in Hurley v. Van Wagner, 28 Barb. 109, and Sizer v. Daniels, 66 id. 426, with a distinct utterance that its doctrine should not be extended. No authority has been cited to show that it is an offense at common law for a candidate for a National office, who could not personally present his individual views of National policy over a wide area of constituency, to employ and compensate a person for that purpose. The pleadings do not show where the alleged contract was made, but entirely agree that it was to be fully performed in the State of Indiana. There is no averment in the answer that the alleged contract is void by the law of that State, and that fact cannot be assumed. Penal statutes of this State have no extra territorial jurisdiction. Commonwealth v. Bassford, 6 Hill, 526; Ormes v. Dauchy, 82 N. Y. 443; S. C., 37 Am. Rep. 583. If the contract in question was void under the law of the State of Indiana, that should have been pleaded as a fact, and issue taken thereupon." In Tillett v. Ward, Q. B. Div., 47 L. T. Rep. (N. S.) 546, an ox belonging to the defendant, whilst being driven along a street in a town, suddenly broke away and rushed through the open doorway of the plaintiff's shop, and there did damage. It not having been proved that the animal escaped through any negligence or want of skill on the part of the drover, held, that the defendant was not liable. Coleridge, C. J. said: "In this case the learned County Court judge has favored us with a full statement of the facts, and it is sufficient to say that his finding is a negative one, or rather he does not find affirmatively that there was any negligence on the part of the owner of the ox or of his servant. The plaintiff is bound to make out his case, and so if negligence has any effect on the result, it is for him to prove it. These two propositions are clear: First, as a general rule, a man who owns cattle must keep them from trespassing, and if they do, his neighbour on whose land the trespass is committed has a right of action, whether such trespass was occasioned by negligence or not. Secondly, where the injury is one resulting from a trespass on the high road, where both parties have a legal right to be, it must be shown that that injury was the result of negligence, either on the part of the owner of the cattle, or of his servant. And if the injury is done by an animal in a vicious manner, it is necessary to prove scienter, or knowledge of its inherent vice, on the part of the owner; but the owner of a vicious animal, with knowledge of its inherent vice, is prima facie liable, without any proof of any negligence or neglect to take proper care of such animal. Now in this case the trespass was off the highway; it was committed by an animal off, but immediately adjoining, the highway; so that unless there was the same amount of negligence in the drovers which would make the owner liable, the owner is not liable. If there was negligence on the part of the servants, the master would no doubt be liable. When a trespass is committed upon unfenced land next the highway by cattle without any negli gence whatever, it is a trespass for which the owner is not liable. I find this in the case of Goodwin v. Cheveley, 28 L. J. Ex. 298. It was argued however that this was only an obiter dictum in that case, and was not necessary for the decision; but I think that, so far from its being an obiter dictum, it was the ratio decidendi of the judgment. That view is also adopted by Lord Blackburn, in Exchequer Chamber, in Fletcher v. Rylands, L. R., 1 Ex. 296. I could not interfere with that decision, even if disposed to do so, which I am not. But it was also argued on behalf of the respondent that there is a distinction between highways in the country and streets in a town; I confess I can see none. Those persons who have shops or houses in the streets of a market-town, no doubt run certain risks from cattle being driven to and from market, and they must protect and guard their houses and shops from the possibility of cattle running into them as best they can." A somewhat similar case is Buckley v. Fitzgerald," Humorous Phases of the Law," 122. It seems that while it is not arson for a wife to burn her husband's house, it may be arson for a husband to burn his wife's house. The London Law Journal says: "The case of Regina v. Trusler, tried at Winchester assizes, before Mr. Justice Grove, is of some interest at a time when the proprietary relations of husband and wife are entering upon a new phase. The prisoner was convicted of the arson of his wife's house, in which his wife and children were at the time. The house was mortgaged, and also insured; but the intent proved was spite toward the wife, and that only. The case of Regina v. Child, 40 L. J. Rep. M. C. 127, was cited by the prisoner's counsel; but Rex v. March, 1 Mood. C. C. 182, seems more in point. That case was the exact converse of Regina v. Trusler, the wife having, out of spite to her husband, put a lighted candle in the thatch of her husband's house, while amiably declaring her intention to burn him, and the house, too. The judges to whom the matter was referred, including Chief Justices Abbott and Best, and Chief Baron Alexander, held, that the husband was so identified with the wife, that for her to set fire to his property was not injuring another person. If the wife is identified with the husband, the husband must be identified with the wife; so that if Rex v. March is still law, neither husband nor wife can be guilty of arson toward the property of the other. There may be a distinction between the two cases on the ground that March was charged with the statutory offense of setting fire to a house 'with intent to injure or defraud any person,' while Trusler was probably (the exact fact does not appear) charged with unlawfully and maliciously setting fire to a house, any person being therein, or with setting fire to the furniture under circumstances which would have amounted to that felony if the house had caught fire. Another distinction may be that in Trusler's case there were the mortgagee and the insurance office capable of being injured, while in March's there was only the husband. Still, the same circumstances as in March's case may easily arise again, and the question is whether the Married Women's Property Act abrogates the authority of that case. The wife may, by section 12, have all such criminal remedies against the husband, 'for the protection and security of her own separate property, as if such property belonged to her as a feme sole.' Does this destroy the 'identity' asserted by Lord Tenterden? The word is somewhat loosely used; but in this connection, it probably means identity of property, and this is clearly destroyed by the new Act." A wife is not an "other person" from her husband, within the meaning of a statute forbidding malicious damage of the property of "any other person." So a husband may smash his wife's sewing-machine with impunity. So held in State v. Nugent, New Jersey. RECENT JUDICIAL ELOQUENCE. THE judges in the south and west seem lately to be striving to atone for the conceded decline of eloquence at the bar by an unwonted degree of manuscript eloquence from the bench. Speaking of an extract which we recently gave from a Georgia judicial opinion (ante, 41), the Canada Law Journal remarks: "Where the judiciary is elective and a man is one day a judge and the next an advocate, it is necessary, we presume, that the temporary occupant of the judicial chair should, so to speak, 'keep his hand in by an occasional rhetorical flight such as is known to be dear to the average American citizen. It is also a comfort to a precedent-abiding profession to know that though they may throw themselves away by going on the Bench, they have still 'authority' for such bursts of eloquence as that," etc. Under the heading of "Flowery Judgments," the Canada Legal News, speaking of the same opinion, says: "We propose to go to Georgia when the sober reason of our northern courts ceases to content us. Georgia is (or was) the home of Judge Bleckley, whose poetic effusion In the Matter of Rest' is to be found on page 185 of our third volume. And Georgia, too, is the favored abode of another justice — a justice of the Supreme Court - who clothes an opinion, on a question of taking private property by the exercise of the delegated right of eminent domain, in the following glowing colors: * * * That a judge should have a turn for poetry is not surprising. Better judges than Sir William Jones have been devoted to it. But, in Georgia, apparently, some of the judges carry their poetic mood to the Bench. They cannot con the accustomed task, but like the urchin in 'The Schoolmistress,' their eyes stray from the prosaic brief to the work so gay that on their back is seen.' However, if judges give us poetry from the judgment seat they should not put us off with false coin. It is too excruciatingly charming to have the 'iron steed' trotted out in a judgment. If these be the deliverances from the Bench what must the harangues at the bar be like?" 6 |