to its brakemen to take ordinary care that the ends of freight cars be furnished with such handles, ladders or safeguards as are in common ordinary use on railroads. (Donner v. D. & H. Canal Co. [Penn.], 30 Atl. Rep. 269.)

RAILROAD RECEIVERS-LEASED LINES.-Receivers who take possession of and operate leased lines for more than a year, and receive the earnings thereof, are bound to disburse the same in accordance with the terms of the lease; and where they apply such earnings to the payment of interest on the bonds, when the lease requires that the taxes shall be first paid, the court will require them, even after the leased roads have been surrendered, to restore the diverted money by paying the taxes in question. (Clyde v. Richmond & D. R. Co., U. S. C. C. [S Car.], 63 Fed. Rep. 21.

SPECIFIC PERFORMANCE--SALE OF LAND.-A contract for the sale of land to plaintiff provided for a deed containing full covenants with warranty, but before the delivery thereof a lis pendens in ejectment was filed against defendant, whereupon plaintiff refused to accept the deed. Held, in a suit for specific performance, pending which defendant's title was cleared by a judgment in his favor in the ejectment suit, that plaintiff was entitled to a decree. (Haffey v. Lynch [N. Y.], 38 N. E. Rep. 298.)

WHITE ON CORPORATIONS - BY FRANK WHITE. This work is without doubt the most complete and comprehensive work on New York corporations that has ever been made. The author has had years of experience in corporate matters in the office of the secretary of state, has for the last three years been engaged in this work, which has just been published, and is the author of White's Manual of Corporation Laws and White's Manual for Foreign Corporations. The work is of great value, as it is a strictly practical book, if nothing else, and at the same time has the advantage of containing all the matter which such a work should have, and yet which we so seldom nowadays find in many of the leading text-books. The work contains the General Corporation Law, which is followed by a schedule of laws repealed; then it has the Organization Tax Law, the Stock Corporation Law, the Federal Anti-Trust Law, the Transportation Corporation

Law, Miscellaneous Acts, Railroad Law, New York Rapid Transit Act, Miscellaneous Railroad Laws, Interstate Commerce Act, Penal and Criminal Code Provisions, Civil Code Provisions, the Condemnation Law, Dissolution and Receivers, Constitutional Provisions, Statutory Construction Law, Taxation of Corporations, United States Income Tax Act, Joint-Stock Association Law, Forms, Index to Forms and General Index. From this summary of the contents of the work it can be readily seen that many elements essential to a good book exist in the treatise. The annotations are full and brought down to date, and the forms are complete and well arranged, while the index is compiled with great care and is very practical. We trust and feel sure that the profession will recognize the value of the work, and that it will fill the need which has existed for a terse, practical and complete work on New York corporations. Published by the White Law-Book Company, Albany, N. Y.

THIS

Notes.

HIS is the way a Kentucky judge charged the jury the other day: "If you believe what the counsel for the plaintiff has told you, your verdict will be for the plaintiff; but if, on the other hand, you believe what the defendant's counsel has told you, you will give your verdict for the defendant. But if you are like me, and don't believe what either of them said, I don't know what you will do." The jury disagreed. — Chicago Legal News.

Ephraim Flint, the veteran lawyer of Dover, Me., who died recently, was once fined by a country justice of the peace for contempt of court in telling the magistrate too bluntly what he thought of one of his decisions. Mr. Flint was not taken back by the justice's order to his clerk. "All right," he said, "I have got a note in my pocket against you which I have been trying to collect for the past ten years, and I'll endorse the fine on it. I never expected to get that much," and suiting the action to the words, pulled out the note and made the endorsement.-Legal Adviser.

A Dakota schoolmarm sued three young men for breach of promise. Counsel for one of the defendants moved for a nonsuit, on the ground that she was too promiscuous. The court seemed disposed to grant the motion, whereupon the plaintiff asked: "Judge, did you ever go out duck shooting?" His honor's eyes lighted up with the pride of a sportsman as he answered, "Well, I should say so! and many's the time that I've brought down a dozen at a shot." "I knew it," eagerly added the fair plaintiff. "That's just the case with me, judge. A flock of these fellows besieged me and I winged three of them." The motion for nonsuit was denied.-Exchange.

The Albany Law Journal.

ALBANY, DECEMBER 22, 1894.

Current Topics.

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dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other

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A

FTER years of service of great value and importance to the law, the legal profession and the people, Judge Earl retires from a seat on the bench of the court of last resort. The arbitrary rule which compels the retirement of this distinguished jurist from taking an active and valuable part in the judicature of the State might in some cases prove necessary and beneficial, but in the present instance Judge Earl is almost a vital necessity to the determinations of the Court of Appeals, and if he could continue he would be, as he has been, one of the greatest justices who has ever honored the bench of this learned court. It would be an honor, a privilege and a pleasure if we could add our humble words to the encomiums of his associate justices and the bench and bar of this State, but we feel that the truest signs of the appreciation of his work is the high respect and favor in which he is held by his fellow-men. True worth is never sung by the vulgar paens of the shouting multitude, but is evinced in its highest form in the quiet esteem and gentle respect of good men, and so we feel that even in retirement, his life work will still be felt in the welfare of the State and the best interests of the legal profession. Judge Earl was born in Herkimer in 1824, and graduated from Union College in 1845. He then began the study of law in Herkimer, and was admitted at the General Term at Fonda in 1848, and commenced the practice of his profession in his old home at Herkimer. In 1855 he was elected county judge and surrogate, and served one term of four years.

He continued the practice of his profession in Herkimer after he finished his term as county judge until 1869, when he was elected judge of the Court of Appeals. In January, 1870, he first took his seat on the bench of the old Court of Appeals, and on July 1, 1870, when the new Court of Appeals came VOL. 50 No. 25.

into existence Judge Earl became a member of the Commission of Appeal, and served for five years, until July 1, 1875. During his term in the old Court of Appeals he served as chief judge. In August, 1875, Judge Grover died, and in November of that year Judge Earl was appointed to the Court of Appeals by Governor Tilden, and served under that appointment during the remainder of 1875 and during the year 1876. In the fall of 1876 he was elected judge of the Court of Appeals, his opponent being Judge Danforth, who subsequently sat

on the bench of the court of last resort.

In

1890 he was again elected judge of the Court of Appeals, and now retires by reason of the constitutional provision requiring such action when a judge reaches the age of seventy. In 1890 Judge Earl was honored by the nomination for judge by both the Democrats and Republicans, and on the death of Judge Ruger, was appointed chief judge of the court of last resort. Judge Earl was married in the year 1852, and has received the degree of LL. D., from both Union and Columbia colleges. He is the last surviving judge elected to the old Court of Appeals and has served, including his service on the old Court of Appeals, longer than any judge who has ever sat on the bench of the highest appellate court in this State. But one judicial officer, Judge Dwight of Auburn, has served continuously as a judge since 1870. As judge of the highest appellate court he has written over 1,400 opinions, the opinions appearing first in volume 41 N. Y., and ending with 144. His opinions if published by themselves would make about eighteen volumes of the Court of Appeals Reports. As a judge, Robert Earl has had vast experience and has written many important decisions, which were partly or wholly new to the law of this State. In looking over the New York Reports one is struck with the clear and concise way in which Judge Earl is able to distinguish rules of law, as given in some cases, from those which are determined here and in other States. The first case which strikes our attention is that of Losee v. Buchanan, et al. (51 N. Y. 476). The defendant in this case owned a boiler which he had purchased from reputable manufacturers and which, without any fault or negligence on his part, exploded and injured the plaintiff's property.

The com

missioners of appeal, Judge Earl writing the opinion, held that a party is not liable for damages occasioned by the explosion of a boiler where he has operated the same with care and skill and in the absence of proof of negligence on his part. He distinguishes the case of Hay v. Cohoes Co. (2 N. Y. 159), and questions the case of Fletcher v. Ryland (3 H. L. Law R. 330.) The latter case is where an owner who had constructed a reservoir over five shafts leading to mines and owned by another was held liable for an injury caused by the water bursting in the shafts under the reservoir. Judge Earl distinguishes the rules of law applicable to such a case where the injury was caused by animals and inaminate property, and by his determination in the case under discussion holds that there must be negligence or fault on the part of the owner of the property to make him liable for injuries resulting therefrom where such property is inaminate. The next cases which we notice involve questions of constitutional law and statutory construction determined in the Matter of New York Ele

vated R. Co. (70 N. Y. 376), and People, ex rel. Murphy, v. Kelly (76 N. Y. 473) In the former case Judge Earl writes the opinion of the Court of Appeals and in the latter case the opinion of the majority of the court, while the late Judge Folger writes the dissenting opinion, in which Ch. J. Church and Judge Miller concur. In Stewart v. Palmer et. al. (74 N. Y. 183), Judge Earl writes the opinion of the Court of Appeals, and holds that the law imposing an assessment for local improvements without a notice to, and a hearing on the part of the owners of the property to be assessed so as to deprive him of his property without due process of law is unconstituJudge Earl says: "I am of opinion that the Constitution sanctions no law imposing an assessment without notice to and a hearing by the owners of the property to be assessed. It is not enough that the owner might by chance have notice or that they may as a matter of favor have a hearing. The law must require notice to them and give them the right to a hearing and an opportunity to be heard. It matters not upon the question of the constitutionality of such a law that the assessment has in fact been fairly apportioned. The constitutional validity of the law is to be decided not

tional.

by what has been done under it, but by what may, by its authority, be done. The Legislature may prescribe the kind of notice and the mode in which it should be given, but it cannot dispense with all notice." Another interesting opinion of Judge Earl is that of Crooke v. County of Kings (97 N. Y. 421), which determines that it is immaterial whether the two designated lives during whose duration a trust is to be created and beyond which the power of alienation may not be suspended were strangers or beneficiaries, and that where the devise was to a trustee during his life to receive the rents and profits and to apply them at his discretion to the support and education of the children of the testatrix, with remainder to them, that the devise was valid. Judge Earl writes the opinion of the majority of the court in the case of Steck v. Colorado Iron and Fuel Co. (142 N. Y. 236), where the majority of the court held that the question as to whether an action is referable without consent of both parties, is to be determined from the complaint alone. If the cause of action in the complaint is not referable without consent, and the same is put in issue, defendant is entitled to a trial by jury, and the action is not referable by any thing set forth in the answer. The contention of the plaintiff was, that as a counter-claim was set up which involved a long account, that therefore a reference was possible and did not violate the constitutional right of the defendant. Judge Earl gives the history of references, and says that, prior to the Code practice, notice of matter in defense could not be given, except in connection with some plea, and at no time in this State prior to 1801 could there be more than one plea to a declaration. The pleadings, therefore, on both sides were required to be such as to present for trial a single issue, and a pleading tendering several issues was bad for duplicity. Judge Earl denies that it should be asserted that the right of trial by jury had, by the practice and usage of the courts, became curtailed prior to any of the modern revisions of the Constitution so as to give the meaning of the guaranty as to jury trial a more limited scope than it had in the Constitution of 1777. He distinguishes, and says that where the plaintiff sets up a cause of action which is not referable, and which is not denied by the de