commissioners of the land office authority to dispose of lands lying between high and low-water mark along the navigable rivers, but provided that no grant of such lands should be made except to the owners of the adjacent shore. Plaintiff, an ice company, and defendant were owners of adjoining uplands along such a river, and at different dates were granted the lands under water adjoining their respective tracts, defendant's grant being the later. For many years plaintiff had, during the winter months, floated ice along defendant's water front to its ice-houses. Held, that as plaintiff could not, by grant, acquire the lands under water adjoining defendant's uplands, it could acquire no prescriptive rights thereto, and injunction would not lie to restrain defendant from building a dyke on such lands, on the ground that it interfered with plaintiff's right to float ice over them. A nuisance in such a case as this must be an injury to the common right of the public to navigate the waters. People v. Vanderbilt, 26 N. Y. 293. And these questions can only be tested in an action at the suit of the people. 2 Eden Inj., chap. 9, p. 259; Lansing v. Smith, 8 Cow. 151; People v. Vanderbilt, supra; People v. Ferry Co., 68 N. Y. 71. Second Division, Oct. 29, 1889. Knickerbocker Ice Co. v. Shultz. Opinion by Parker, J. Affirming 41 Hun, 458.

-

Judgment reversed, new trial granted, costs to abide event-Cleanthus S. Wilcox, as administrator, respondent, v. Susan M. Corwin and another, as executors, appellants.- Appeal dismissed with costsIn re the goods and chattels of John Waack, deceased. Judgment affirmed with costs Ellen A. Couse, as administratrix, appellant, v. New York, Lake Erie and Western Railroad Company, respondent.--Judgment affirmed with costs-Francis Glavin, an infant, etc., respondent, v. Vincenzo Sararese and others, appellants. Judgment affirmed with costs-Michael Fitzgerald, as administrator, respondent, v. Long Island Railroad Company, appellant.-Judgment reversed, new trial granted, costs to abide event-Fraucis J. McCann, as guardian, appellant, v. Sixth Avenue Railroad Company.. Judgment affirmed with costs

-Harriet M. Wait, as executrix, and others, respondents, v. Sarah A. Cerqua and another, appellants.Judgment affirmed with costs-Joseph E. West, as administrator, respondent, v. George A. Reynolds and another, appellants.--Dismissed on argument-Davis Sewing Machine Company of Watertown, respondent, v. Wm. J. Best, as receiver of the National Trust Company of New York,'appellant.-Appeal dismissed with costs-In re claim of Stephen F. Chaphe, appellant, v. State of New York, respondent.- Judgment reversed, new trial granted, costs to abide eventJames Dorman, as administrator, respondent, v. Broadway Railroad Company of Brooklyn, appellant. -Judgment affirmed with costs - Horace H. Chittenden, as assignee, appellant, v. Charles O. Morris and others, respondents: In re judicial setHE members of the New York State Bar Associatlement of accounts of John S. Woodward and tion are respectfully notified that its thirteenth another, as executors; Alice Gray 'and others, appelannual meeting will take place at Albany, N. Y., on lants, v. John S. Woodward and another, respondents. the third Tuesday and Wednesday of January next. -Motion to dismiss granted with costs to the reMr. Ingersoll's address, to be delivered on the first spondent and $10 costs of motion-John I. Tilton, re"Crime day, on a subject novel and of vast interestspondent, v. Susan M. Vail and others, appellants.Eliza Against Criminals "-and his acknowledged accomMotion for reargument denied with $10 costs plishments as an orator and lawyer, and the other exSelluter, as administratrix, appellant, v. Bowery Savceedingly interesting exercises of the meeting, renderings Bank.-Motion to amend remittitur. Ordered it necessary to hold it in the

TO THE MEMBERS OF THE NEW YORK
STATE BAR ASSOCIATION.

THE

NEW HARMANUS BLEECKER HALL, Washington avenue, instead of the Assembly Chamber, as heretofore announced. The second day's meeting will take place in the General Term court-room, City Hall, at 9:30 A. м The proceedings of the second day's meeting will of course be interesting only to lawyers, but to them matters will be brought forward for consideration in which they are vitally interested. The committee refer with much pleasure to the strong indications already generally manifested that the coming annual meeting will be the largest and most limportant of any yet held by the association.

A full programme of the meeting and the banquet will soon be published and sent to every member of the association.

that remittitur be so amended as to give leave to the plaintiff to withdraw his demurrer to the second defense of defendant Lunt, on payment to defendant's attorney, within twenty days, of all costs since the demurrer-Ludlow W. Valentine, an infant, respondent, v. Elizabeth H. Lunt, impleaded, etc., appellant.Motion for reargument denied with $10 costs-Horace Secor, Jr., and others, respondents, v. Mary J. Clark, as executrix, appellant.-Motion to dismiss granted with costs-Fred. N. Hamlin, appellant, v. Elisha R. Wheelock, respondent.

SECOND DIVISION.

Motion for reargument denied with $10 costs-Elmer J. Albert, respondent, v. Elnathan Sweet, Jr., and James R. Young, appellant.- Motion denied with $10 costs, but without determining whether William Radford acquired any title to the premises by the deed given to him by the sheriff, and with leave to said Radford to file a brief on the argument in this appeal, provided he serves a printed copy thereof on the plaintiff's attorney five days before the argument-Levi P. Rose, appellant, v. David Hawley and others, respondents. Judgment reversed, new trial granted, costs to abide event-Wilhelmina Haack, appellant, v. John H. Weicken and another, executors, respondents. Judgment affirmed with costs-William M. Alberts, respondent, v. New York, Lake Erie and Western Railroad Company, appellant.Order affirmed with costs and judgment absolute ordered upon stipulation against the appellant - Maria Frederichs, respondent, v. Alexander Davidson, as sheriff, appellant. - Judgment affirmed with costs -- Abraham Davis, respondent, v. Peter Bowe, as sheriff, appellant.

The Albany Law Journal.

THE

ALBANY, DECEMBER 28, 1889.

CURRENT TOPICS.

law, for its sin against Bryant in Bloss v. Tobey, in which he was assured that he did not know enough law to draw a common-law declaration in slander, and thus driven out of the profession, owes him the duty of doing what it can to perpetuate his memory as a poet. Not so prolific, but much less common-place, than Longfellow, he seems to us. "Thanatopsis," "The Water-Fowl" and "Green River seem to us far nobler and more beautiful than the Psalm of Life," "Excelsior" and "Hiawatha." Longfellow's finest work is his least known and least popular, such as "My Lost Youth," "The Two Angels" and " Sandalphon." The most exquisite compliment ever paid by one poet to another was Fitz Greene Halleck's to Bryant, in The Recorder - addressed to Richard Riker, recorder of New York, and not much known to this generation of Browningites and Swinburnians, but doubtless known to Lord Coleridge, who knows all literature. It is as follows:

"Bryant, whose songs are thoughts that bless
The heart, its teachers and its joy,
As mothers blend with their caress
Lessons of truth and gentleness

And virtue for the listening boy.
Spring's lovelier flowers for many a day
Have blossomed on his wandering way-
Being of beauty and decay,

They slumber in their autumn tomb;
But those which graced his own Green River,
And wreathed the lattice of his home,
Charmed by his song from mortal doom,
Bloom on, and will bloom on forever."

HE centenary of the establishment of the Federal Supreme Court is certainly worthy of a solemn celebration, and we are glad to observe that Mr. President Arnoux, of our State Bar Association, has got the matter well in train, and has made an assured success of it. But soon the energetic president ought to turn his own attention and direct the minds of the members of the association to a matter of present pressing necessity connected with our own Supreme Court. By the help of this celebration the Federal court will probably get along another century. "The past at least is secure," especially where there are a hundred years of it, but our own Supreme Court is in present trouble and has need of very present help. Here is an excellent opportunity for the association to do a little live and practical work, by proposing to the Legislature a proper constitutional amendment for the permanent enlargement of our Court of Appeals, and the consequent enabling of the Supreme Court to catch up with its arrears and keep abreast of its business. If all the Supreme Court judges were where they ought to be, they would be sufficient for the busiIn respect to prose, Lord Coleridge gives Erskine ness. There is no need of any more. But with high and Bolingbroke the very highest praise. We seven of them commissioned to help the Court of admit the excellencies of both, but is not Burke Appeals, the Supreme Court is seriously crippled in finer than either? He had what neither of the forevery district but the first, and the arrears are accumer had, imagination, and a comprehension hardly mulating at a fearful rate. Even if this "commis-surpassed by any man. It occurs to us also that sion" is, as its members seem fondly to hope, only temporary, yet as they admit that their work will not be over for two years, what will be the condition of our Circuit calendars at the end of that time? But if, as we believe inevitable, the Court of Appeals' accumulations in two years, and always in the future, will be so great that the original court cannot, and never again can, keep up with its business, these judges, under the present arrangement, will be forced to stay there, and the Supreme Court will still be in the lurch. Now, good Mr. President, after you recover from the speech-making, and the bowings-down to the chief justices, and the grand music, and the sight of the beautiful women, and the taste of the banquet, at the centenary celebration, do start up the tremendous enginery of the State Bar Association, and try to give the suitors of this State some help. Matters are now in a shame

Rufus Choate had a pretty good style of his own in
writing, and recollecting that he had something to
say in one of his letters of Burke and Bolingbroke,
we looked it up, and here it is, advising Charles
Sumner to write an article on Burke: "We poor
unidealized democrats do not understand his mar-
vellous English, universal wisdom, illuminated, om-
niscient mind, and are afraid of his principles. What
coxcombical rascal is it that thinks Bolingbroke a
better writer? Take page by page- the allusions,
the felicities, the immortalities of truth, variety,
reason, height, depth, every thing - Bolingbroke
is a voluble prater to Burke!"
In their way, too,
there is nothing in the language finer than Choate's

carefully-prepared discourses the famous passage in his senatorial speech on hatred of England, the welcome to Kossuth, the eulogy on Webster. Great as was his admiration of Burke however, Choate once declared that "on the whole, the most eloquent and mellifluous talk that was ever put together in the English language was the speech of Mr. Standfast in the river." Choate was as great an advocate, and a much greater lawyer than Erskine, and a beautifully accomplished scholar. In fact there seems to us between Bolingbroke and Erskine on the one hand, and Burke and Choate on the other, the difference between talents of the very highest order and the

heaven-born genius which has descended on very few of the sons of men,

the dead." We do not know of anybody who is proposing to compel married people to divulge secrets; but if they are willing, why not let them? As to the other point, a judge of our Court of Appeals said to us a few days ago that he was coming to believe that it is expedient to wipe out the restriction. Nobody has yet satisfactorily answered the oft

unworthy of belief simply because another has died?" "Sacking the Temple" has a fine sound, but the "Temple" is a temple of the sunset clouds,

Rip Van Winkle has apparently waked up at Tazewell Court-House, Virginia, in the person of Mr. S. C. Graham, who emits a mournful sound in a late number of the Virginia Law Journal, in an article entitled “Sacking the Temple." This utter-repeated question, "Why should one suitor become ance seems to have been called out by a recent movement on the part of some progressive Virginia lawyers toward obtaining legislation which shall place the grand old "Mother of Presidents" somewhere near abreast of most of the other States in matters of legal reform. This fervid gentleman outBishops Bishop. Here is a specimen brick: “Hence the cry from these lands that have these code procedures for a codification of the law. The splendid columns, the massive pilasters, that supported the grand temple, have been moved, and the structure is slowly and inevitably crumbling away; modern hands must build a modern structure, but the startling announcement has been made that these icono

clasts must build the structure anew from the rub

bish of the old; soiled, marred, defaced, impaired, scarred and demolished, though it has been from the fall. And where is their architect, and where are their skilled artificers and mechanics? The

acanthus leaves from the Corinthian capital will find a place on the head of the sculptured Centaurs The fluted columns of from the Doric Parthenon.

constantly shifting, and even while the gazer is ad-
miring, disappearing, and leaving not a wrack be-
hind. The Temple has been "sacked" before. It
was done
so the Pharisees complained - when
Christ with his whip drove out the money-changers

and dove-sellers. That is all we propose to reform the temple. After all these lamentings of Carter, Bishop, Graham, Dwight, Hornblower and

J. Bleecker Miller, is it not remarkable that all that we ask or want is to make the temple permanent simply to fix the foundations which the common law has already laid- merely to write down the common law? Let the Tazewell Court-House architectural enthusiast, who apparently derives his figures from Pinckney's celebrated argument in the Neireide Case, turn over now and go comfortably to

sleep again, and wake up again in twenty years, and we will show him a temple worthy his admiration,

NOTES OF CASES.

'N State v. Moore, Supreme Court of North Caro

lina, November 4, 1889, it was held that where the court proceeds with a murder trial on February 22 without objection, the proceedings on that day public are not void because it is declared to be a " holiday" by statute, where it does not appear that defendant was prejudiced by that fact. The court said: "The statute (Code, § 3784) simply declares that the 22d day of February, and other days therein specified, in each year, shall be public holidays, and prescribes when papers coming due on such days or on Sundays shall be payable. It does not purport, in terms or effect, to prohibit persons from pursuing their usual avocations on such days, nor is there any inhibition upon public officers not to exercise their offices respectively, nor more particularly for the present purpose, is there inhibition upon the courts to sit on such days, and exercise their functions and authority. There is no such statutory inhibition, nor indeed is there any except such as may arise in the application of general principles of law. It has never been understood to be the law in this State that a public holiday is dies non juridicus, except perhaps to a limited extent; it is very certainly not wholly so. The courts, particu

the Roman Parthenon will sustain the gothic gable, instead of the portico. Some mossy boulder from a Teutonic stronghold will be laid upon the volutes of the Græco-Gothic structures of France; and from the ruins of this great fallen structure we will trace the indiscriminate composite of the legal architecture of every civilized nation, placed without form, forbidding, gloomy, mossy, cold; frequented only by the owls of the profession who constructed it; the mausoleum of reason, truth and justice. England has adopted a Code Procedure, and she is huntThe Empire ing a Justinian to complete the ruin. State of this Republic has forced a Code Procedure, and David Dudley Field wants to be her Justinian." It might be expected that this writer would greatly admire Lord Eldon, the Doubter, and so he does, and quotes with applause his famous declaration: "Indulge the appetite for alteration in the law, which we hear so much of nowadays, and in a reign or two more we shall not have a lawyer a wellgrounded lawyer — left." As if laws were designed mainly to keep up lawyers! It would have been fortunate for England if the procrastinating chancellor had been " 'grounded " half a century earlier than he was. Then he praises Bacon, who believed in witches, and insists that it is sacrilegious to discard his system of law, and would fain go back to Cicero, forgetting that he was not a common lawyer.larly the superior courts, very frequently sit on such The particular point of the gentleman's complaint seems to be that Virginia lawyers are proposing "that the modern husband and wife should keep no secrets of their domestic relations, and that any man should be allowed to testify against the insane or

any

days, and hear and try causes and dispatch the business that ordinarily comes before them, especially when there is no objection. Frequently however they do not so sit, and it seems to us that ordinarily it would be better that they should not, and thus

or

take another chew of tobacco or smoke another cigar during the life of the promisor is upon a sufficient consideration. The court said: “There is nothing in such an agreement inconsistent with public policy, or any act required to be done by the plaintiff in violation of law; but on the contrary, the stepgrandmother was desirous of inducing the grandson to abstain from a habit, the indulgence of which she believed created a useless expense, and would likely, if persisted in, be attended with pernicious results. An agreement or promise to reform her grandson in this particular was not repugnant to law or good morals, nor was the use of what the latter deemed a luxury or enjoyment a violation of either; and so there was nothing in the case preventing the parties from making a valid contract in reference to the subject-matter. In the classification of contracts by the elementary writers it is said: 'An agreement by one party to give, in consideration of something to be done or forborne by the other party, or the agreement by one to do or forbear in consideration of something to be given by the other, are such contracts, when not in violation of law, as will be held valid.' Whether the act of forbearance or the act done by the party claiming the money was or not of benefit to him is a question that does not arise in the case. If he has complied with his contract, although its performance may have proved otherwise beneficial, the performance on his part was a sufficient consideration for the promise to pay. The right to use and to enjoy the use of tobacco was

encourage the spirit and purpose of them. It may be that suitors, jurors, witnesses and others are not bound to attend court on legal holidays, but if they do, and the court proceeds with the business before it, it is not unlawful to do so, nor is it error in the court, in any particular case or matter, to so hear and dispose of it, unless it shall appear that a party thereby suffered injustice or prejudice. Inasmuch as business of all kinds is generally suspended on such days, and the law so allows and permits, it may not be lawful then to sue out or execute civil process, notices and the like; but if that be so, it is otherwise as to cases and business pending before the courts, if the court proceeds in the same without prejudice to parties interested; and this is so because the statute simply permits such suspension of business, but does not make it unlawful to do and transact official business, whether judicial otherwise. The correctness of what we have thus said is made the more manifest by reference to the statute (Code, §§ 3782, 3783) in respect to Sunday, and decisions of this court as to judicial proceedings in certain cases on that day. That statute positively forbids every person, whether on land or water, to do or exercise any labor, business or work of his ordinary calling, works of necessity or charity alone excepted,' on Sunday. In view of this statutory provision, and the nature and purposes of Sunday, this court, while holding that it is for many purposes dies non juridicus, has repeatedly decided that it is not assignable as error that the Superior Court sat on Sunday pending the trial of capi-a right that belonged to the plaintiff, and not forbidtal and other cases continued from Saturday next before that day. Thus in State v. Ricketts, 74 N. C. 187, the defendant was indicted for perjury. The trial began on Saturday, and the jury did not render their verdict of guilty until the next day, Sunday. It was contended for the defendant that the verdict and proceedings of the latter day were void. This court held otherwise, that the verdict was valid. Afterward, in State v. Mc Gimsey, 80 N. C. 381, which was a capital case, the court said: 'We think there is nothing in the objection raised that the court was held on Sunday for the purpose of this trial under the circumstances;' citing State v. Ricketts, supra. These cases were afterward recognized in State v. Howard, 83 N. C. 623. See also Bland v. Whitfield, 1 Jones, 122; Branch v. Railroad Co., 77 N. C. 347; Devries v. Summit, 86 id. 126. It does not appear - it is not suggested that the prisoner in this case suffered the slightest prejudice because the jury rendered their verdict of guilty and the court gave judgment against him on a holiday. He had every advantage, every safeguard, about him then that he could have had on any other day; and as we have seen, there was neither principle, nor statute, nor precedent, nor practice in this State that made it unlawful for the court to sit as it did do on the holiday mentioned."

In Talbott v. Stemmons' Er'r, Court of Appeals of Kentucky, October 24, 1889, it was held that an agreement to pay the promisee $500 if he would never

den by law. The abandonment of its use may have saved him money or contributed to his health; nevertheless the surrender of that right caused the promise, and having the right to contract with reference to the subject-matter, the abandonment of the use was a sufficient consideration to support the promise. Mr. Parsons, in his work on Contracts (vol. 1 [7th ed.], *489), says: 'The subject-matter of every contract is something which is to be done, or which is to be omitted;' and where the consideration is valuable it need not be adequate. If therefore one parts with that he has the right to use and enjoy, the question of injury or benefit to the party seeking a recovery by reason of a full performance on his part will not be inquired into, because if he had the legal right to use that which he has ceased to use by reason of the promise, the law attaches a pecuniary value to it. If this was an action to recover such damages as the party had sustained by reason of the violation of the covenant or promise, the verdict or judgment would doubtless be nominal only; but where the parties have agreed on the amount to be paid on the performance of certain conditions, when a compliance with those conditions has been alleged and shown, the sum agreed on must be paid."

In Kenney v. New York Cent., etc., R. Co., 55 Hun, 143, it was held that an agreement between an express company and the defendant that the latter should not be liable for negligence resulting in

injury to the express company's agents, was not bind-
ing on such agents in the absence of proof of their
assent to. Dwight, J., said: "There was no evi-
dence of any agreement on the part of the deceased,
nor of any knowledge on his part of the agreement
of his employer which assumed to grant immunity
to the defendant for injuries done to him. The
question, so far as we know, is a new one, and it
has not been much discussed upon this appeal, but
we are not able to see how it was competent for the
express company, without the consent of the de-
ceased, to bargain away his right to the protection
of the law. That the defendant owed him the duty
to exercise a reasonable care for his safety is a propo-
sition which does not admit of dispute. The con-
tract of his employer did not assume to discharge
the defendant from that duty, but only from liabil-
ity for its violation. The stipulation in this case,
that the death of the deceased was caused by negli-
gence of the defendant, implies that the latter owed
a duty to the former, because negligence consists of
the omission of care which is due. This duty did
not depend upon contract, express or implied. The
deceased was not a trespasser on the cars or
the lines of the defendant. He was rightfully
there with the consent of the defendant, and being
so, the defendant was bound to exercise a reason-
able care for his safety. It is true, the case contains
a statement to the effect that proof was made 'that
he (the deceased) paid no fare, and that such rights
as he had in the car where he was killed were de-
rived by him under the terms of the agreement'
above mentioned. But it cannot be intended by
this that proof was made that the deceased had in
any way forfeited or surrendered his natural and
inalienable rights, among which was his right to
life. The proof referred to must have been limited,
as the statement is, to his rights in the car,' that
is, his right to be in the express or baggage-car, and
to be transported therein with the goods in his
charge; to have the custody and control of those
goods; to put off goods at stations to which they
were consigned, and to take on goods at stations at
which they were offered for transportation. These
were his rights in the car as the agent of the express
company, and these were the rights which the ex-
press company contracted for and might limit by
its contract. But he had besides these the rights
which belonged to himself as an individual, and
among them was the right to safety of life and limb
as against the wrongful or negligent acts of the de-
fendant, its agents or servants. He had never waived
that right nor released the defendant from the lia-
bility which sprung from its violation. The express
company could not waive a right which did not be-
long to it, nor release a liability which accrued to
another. The obligation to carry the deceased and
give him the necessary facilities for doing his work
was an obligation to his employer by virtue of the
contract with the latter. The obligation not to do
him a personal injury through negligence was a per-
sonal obligation which the defendant owed to him
in common with all persons who were so situated as

to be liable to such injury, without fault or wrong on their own part. The liability which sprung from the violation of this obligation did not rest in contract any more than if the deceased had been negligently run over by the defendant's train at a crossing of its road, or if his house, contiguous to the defendant's track, had been negligently burned by fire from the defendant's engine. In no aspect of the case was it competent for the express company to waive or compromise the right of the intestate to protection against negligent wrong at the hands of the defendant, or to discharge the defendant from a cause of action which belonged only to the intestate or his personal representative. Indeed, it would seem that the railroad company did not altogether rely upon the agreement of the express company to release it from the liability in question, for it proceeded to take an agreement to guarantee it against such liability. This latter was a contract which it was competent for the express company to make and prudent for the railroad company to require. In effect, it recognized the existence of the liability on the part of the railroad company to the person injured, and shifted the final responsibility therefor by giving to the railroad company an action over for such damages as it should be compelled to pay."

CONSTITUTIONAL LAW - POLICE POWER –
ELEVATOR CHARGES.

NEW YORK COURT OF APPEALS, OCT. 8, 1889.
PEOPLE V. Budd.

Act of New York, 1888, chapter 581, section 1, fixes the maxi-
mum charge for receiving, weighing, and discharging
grain by means of elevators at five-eighths of a cent a
bushel, and for trimming and shovelling grain to the leg of
the elevator, "the actual cost," and a violation of the act
is made a misdemeanor. The act is restricted to cities of
not less than a certain population, which includes only
three cities. A large proportion of the surplus cereals
of the country passes from the great lakes through the
elevators of one of these cities, from whence it passes
through the Erie canal and Hudson river to the seaboard.
The area on which elevators may be erected in that city
is limited, they are expensive, and are indispensable in
trans-shipping grain, thus affording great facility for a
monopoly. Held, that the business of elevating grain is
so affected with a public interest that the act is within
the police power of the State, and is not unconstitutional
as depriving elevator owners of property without due pro-
cess of law.

A

PPEAL from Supreme Court, General Term, Fifth
Department.

Spencer Clinton, for appellant.

George T. Quinby, for people.

ANDREWS, J. The main question upon this record is, whether the legislation fixing the maximum charge for elevating grain, contained in the act (chap. 581, Laws 1888), is valid and constitutional. The act in its first section, fixes the maximum charge for receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses in this State at five-eighths of one cent a bushel, and for trimming and shovelling to the leg of the elevator, in the process of handling grain by means of elevators, "lake vessels, or propellers, the ocean vessels or steamships, and canal-boats," shall, the section declares, only be required to pay the actual cost. The second section