children. By doing an unlawful act appellant became liable for the natural and proximate consequences. It was not error for the court to charge that a sale of cartridges in violation of a criminal statute of the State was of itself an act of negligence. -In People v. McKay, 46 Mich. 439, it was held that a railway station keeper may be convicted of assault and battery for forcibly ejecting one from the station because he spit on the floor. In Seaton v. Swem, Iowa Supreme Court, it was held that a bet of twenty-five cents by a juror upon a probable verdict would avoid the verdict. So, in Essex v. McPherson, 64 Ill. 349, of a bet of a neck-tie. In State v. Poe, 8 Lea, 644, it was held that to charge the jury that "defendant cannot gouge the plaintiff out of their property in no such way," while inelegant and not in good taste, is not reversible error, although the meaning might have been conveyed more "mildly" and yet as "firmly". and more grammatically, it might have been added.

In Davis v. Sawyer, Massachusetts Supreme Court, January, 1882, 15 Cent. L. J. 251, it was held that the ringing of a factory bell, weighing about 2,000 pounds, before half past six o'clock in the morning, within from 300 to 1,000 feet of the residences of the plaintiffs, awakening and disturbing them, was a nuisance, and should be enjoined, although a large majority of persons living nearer were not annoyed. The court said: "Noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinary comfort of life and impair the reasonable enjoyment of his habitation, is a nuisance as to him." "The fact that some persons may have had such associations connected with the sound that it may have been to them a pleasure rather than an annoyance, or that the sensibility of others to the sound may have become so deadened that it ceased to disturb them, shows that the noise was not a nuisance to them, but does not change its character as to others. Many persons can, by habit, lose to some extent their sensibility to a disturbing noise as they can, to a disagreeable taste or odor or sight, or their susceptibility to a particular poison; but it is because they become less than ordinarily susceptible to the particular impression. In this case the evidence shows that persons were awakened and disturbed by the bell, until they had lost ordinary sensibility to its sound." "The custom in other places cannot affect the rights of the plaintiffs." As to church bells, see 15 Alb. Law Jour. 248; Humorous Phases of the Law, 299, "Nuisance."

In Neilson v. Brown, Rhode Island Supreme Court, May, 1882, the complainant claimed damages because the defendants'had enticed away his wife, detained her, slandered him and reviled the marriage, thus causing her death; and also because they had refused to allow him to attend the funeral and view her body. On the first point the court said: "We do not think this action can be maintained under

the statute. We understand the statute to give a right of action in those cases in which at common law an action might have been maintained for the injury from which the death resulted; but death could result from no injury unless an injury to the deceased person, and for such injury only the deceased person could have maintained an action. It follows therefore that no action can be maintained under this statute except in cases where the deceased person, had he lived, would have had an action." On the other point they said: "In order to sustain this count we must hold that the husband has the right thus to see the body of his wife and to attend the funeral services. We find no ground, either in reason or authority, for holding that any person has a right to enter the possessions of another without his consent for attending a funeral. It is suggested that the public nature of funeral ceremonies implies a license; but such license, if one arose in this case, was revocable and was clearly revoked by the subsequent conduct of the defendant as set out in the count. It is also suggested that the wrong doing of the defendants in enticing away the wife raises a license of which the plaintiff may avail himself under this count; but we think that the right of the husband in this regard was at most a right to have the custody of the body of his wife and to order the funeral ceremonies himself in his own possessions, and that the license, if any was implied, was to enter the premises of the defendants for the purpose of assuming such custody and But in this removing the body for that purpose. case there is no allegation of demand for the body or refusal to deliver the same."

The 46th volume of Michigan Reports contains several very novel and interesting cases. Mann v. White River, etc., Co., p. 38.-A log-driving and booming company is not a common carrier. De Moss v. Robinson, p. 62. — An oral promise to devise is revocable, although for value. Kellogg v. Lovely, p.

131. A purchase-money mortgage on a pregnant mare covers the colt unless it is weaned before default. De May v. Roberts, p. 160.—The unique case of intrusion at child-bed. See 24 Alb. Law Jour. 23. Van Horn v. People, p. 183. A dog tax is constitutional. Randall v. Chubb, p. 311. — A lease of land to be worked on shares with the lessor's implements is not assignable. Sullings v. Shakespeare, p. 408. The funny libel case. See 24 Alb. Law Jour. 82. People v. McKay, 46 Mich. 439. A railway station keeper has no right to eject a passenger from the station for spitting on the floor. Raymond v. Leavitt, p. 447. A loan for the purpose of making a "corner" in wheat is not recoverable. Rose v. Vertin, p. 457.- A bishop is not liable for the salary of a priest whom he has engaged. Cuddy v. Horn, p. 596. - A master of a vessel cannot evade responsibility for its safe management by intrusting it to a charterer. Goodsell v. Seeley, p. 623. —A jury came into court and reported that they could not agree, and "stood elever

to one and divided on $200." The judge told them it would be better for one or both sides to yield, and that a disagreement over so small a matter would be unfortunate. Held, error. reporting is well nigh perfection.

W

Mr. Chaney's

COMMON WORDS AND PHRASES.

HILE our little book under this title is slowly making its way through the press, the courts have been making several new and amusing definitions. We subjoin a few of them, and a few other late discoveries.

ABOUT. Four thousand four hundred dollars is not "about" three thousand dollars. Glade v. Germania Fire Insurance Co., 56 Iowa, 400.

ACCIDENT. In Field v. Davis, 27 Kans. 400, an action of damages for personal injuries by negligence, the plaintiff broke his ankle by jumping from a wagon, the mules having become restive and backing into a dangerous position. The court below spoke of the occurrence as an "accident." On review the court said: "Now such word is often used in similar cases, and is probably about the best word that could be used in such cases. It has various shades of meaning; but in such cases as in this, it probably means an event from some cause whose nature and character are yet unknown, but which is submitted to the court and jury upon the evidence for the purpose of having the same duly and legally ascertained and determined. We think it is fair to call such an event an accident, until its nature is legally ascertained, and the event known to be either a culpable consequence of some negligent act or omission, or an innocent, unforeseen, fortuitous casualty, for which no one is culpably responsible. We have heard the word used so often in similar cases, that it does not seem out of place to us, and we do not think the jury could have been misled by it."

APPROPRIATED. In U. S. v. Nicholson, U. S. District Court, Oregon, June 14, 1882, 2 Pac. Coast Law Jour. 692, it was held that a space upon a vessel bringing passengers into the United States, un der the act of March 3, 1855, is not "appropriated" to their use, within the meaning of the term or the object and policy of the statute, unless it is given up to their exclusive use; and therefore the diningsaloon of a steamship carrying Chinese passengers from Hongkong to Portland, Oregon, in which such passengers were allowed to go and come during the day, but to which no number of them were allotted or assigned, and in which they neither ate nor slept, was not a space appropriated to their use.

Ат. "At a tree," in a boundary, does not necessarily mean its center. Stewart v. Patrick, 68 N. Y.

450.

CONVENIENCES. School books are not "proper conveniences and fuel," (although many of them would best be used for fuel.) In re School Directors' Accounts, Pennsylvania Common Pleas, June, 1882. The court said: "The words 'proper conveniences' and 'fuel' in the second clause of the

second section, have reference to the buildings or school-houses, and I believe have generally been construed to authorize the directors to purchase and place in the school-houses globes, charts, maps, etc., which are used by all the scholars in common. It has been said that these are part of the necessary furniture of a school-house, and therefore may be very properly said to be covered by the word 'conveniences.'" The argument was "that as the power is conceded to purchase maps, black-boards, globes, and other apparatus for use in the schools, it necessarily follows that they may purchase books for the use of the scholars individually, because books are necessary to instruction and education; that if not so, then the poor will not receive the benefits of the system because they cannot buy the necessary books. Counsel for appellant cited the opinion of Judge Pearson in Fitting v. Glassbrunner, 1 Pearson, 544, in which he held that school directors had no power to levy a tax for the pur chase of school books to be used in the public schools of the district. This case was decided in 1868. Judge Pearson says: 'Under the power to provide the 'proper conveniences' for the schoolhouses the board has full authority to procure not only the proper seats, desks, stoves and other apparatus to make the scholars and teachers comfortable, but also those articles used by all and necessary for public instruction, such as black-boards, maps, charts, globes, a large dictionary, etc., intended for the benefit of the whole school. But can the directors obtain the school books and stationery for the use of the scholars, and assess and collect taxes from the property of the district to pay for them or make payment out of the school fund? We can find no act of assembly now in force to sustain this item.'"

* *

So stereoscopes are not "necessary appendages" to a school-house. School District v. Perkins, 21 Kans. 536; S. C., 30 Am. Rep. 447.

DEPOSIT-EXPOSE. These words are not synony mous, under a statute against exposing poisonous substances. State v. Pratt, 54 Vt. 484. The court said: "They not only do not mean the same thing, but are often, perhaps generally, used to express opposite ideas. Things are often deposited so as not to be exposed, and for that purpose. One word scarcely suggests the other." This is all very well in theory, but practically, if a man "deposits" money in a bank, now-a-days, does he not "ex" it? pose

DISORDERLY HOUSE. In Smalley v. State, 11 Tex. Ct. App. 147, it was held that evidence of a single witness that he had had sexual intercourse with the defendant's daughters several times, but never at her house, would not sustain a conviction of keeping a "disorderly house" for public prostitution. The daughters were disorderly, but the house was

not.

DOMESTIC PURPOSES. The London Law Times says: "What are domestic purposes?' By an act just passed (45 Vict., ch. 22), as soon as a 'boiler' explodes, notice to the board of trade must

sack, budget, trunk or bag, and in connection with the post-office, means the carriage of letters, whether applied to the bag into which they are put, the coach or vehicle by means of which they are transported, or any other means employed for their carriage and delivery by public authority. It came originally into use as referring to the valise which postillions or couriers had behind them, and in which they carried letters, at an early period; and after the establishment of post-offices, post-routes, and post-coaches, it became, as it is now, a general word to express the carriage and delivery of letters by public authority. The carrier in this case carried a bag having two compartments, in one of which letters to be delivered were put, and in the other letters to be sent by mail, the kind of bag such officials were accustomed to carry."

OBSERVATIONS ON THE PARTICULAR
JURISPRUDENCE OF NEW YORK,
XI.

1821 TO 1846.

ONTINUING the observations on the Revised

CONT

Statutes, the subject of the preceding paper, attention may be next directed to the brevity of that part of the revision relating to real property. Within the compass of forty-six ordinary law-book pages, the revisors completely remodeled the entire land law of the State, which until then had been as diffuse as it was ill-arranged. Prior to this revision the real property branch of our particular jurisprudence was largely composed of the case-law of England, applicable to the socage tenure, but somewhat modified either by local statutes, generally of English original, or else by the sole active juridical canon of our political institutions - a very vague one-that it should be suited to the social and political conditions of the new State. Out of this scattered, if not discordant, material, most of which was the product of a people existing under circumstances widely divergent from our own, the revisors attempted to produce a code which should, at least, serve as the basis of a new learning, simpler than that which it superseded and more in harmony with the local surroundings. In this part of their task, the revisors had the advantage of a system of registration much more perfect than that which existed in England. In the latter country, bargains and sales had been required to be enrolled after c. 16, 27 Hen. VIII, and by subsequent registration acts, prior deeds, not filed, were rendered invalid as against bona-fide purchasers for value and without notice (13 Eliz. c. 7; 15 Car. II, c. 17; 2 & 3 Anne, c. 4; 6 Anne, c. 25; 8 Geo. II, c. 6). So the evils attendant upon the non-registration of wills and judgments had been remedied by statutes inflicting virtual forfeitures in proper instances. In New York at an early period these English statutes had been simplified by laws requiring registration in particular offices of the county or State. (See note N. R. L., 1813, pp. 369-372.)

The modifications which the revisors made in legal estates in lands having been to some extent noticed, we may proceed to a consideration of the changes effected in the laws relating to uses and trusts in lands. The revisors undertook not only to revise the statutes relating to this complex subject, but also to codify and alter the pre-existing case-law. The ambiguity of the acts designating the revisors, studious tact, and deference to prejudice permitted

the revisors to accomplish — at a time not ripe for a codification of the entire law-what was unhesitatingly styled by the contemporary judges, a codification of the law of trusts.

Could we now stand where the revisors stood when they drew the first section of the revised statutes of uses and trusts in lands (art. 2, ch. 2, part II), abrogating all previous uses and trusts, we should the more readily compreheud the difficulties of any reforms in this department. Uses and trusts had been of the greatest importance in the development of the jurisprudence of England. As then existing, they had almost imperceptibly grown from a species of indirect legislation, sometimes, from its resemblances, termed the praetorian legislation of the English Chancellors, or the English jus honorarium. This decretal or edictal legislation, supplying laws omitted by the legislature proper, and remedying the hardships of inefficient legislation proper, had profoundly influenced even the history of English and sub-English peoples. The revisors disturbed in New York the very conceptions of property; for property had come to have two distinct natures as it were; property viewed from a court of equity was quite distinct from the same property when viewed from a court of law. The revisors, it was feared, might disturb the balance of the whole system of Anglo-American jurisprudence by an illy-adjusted revision. At that time, few common lawyers had any purely scientific notion of abstract jurisprudence: they were in the main, essentially formalists, men of precedent and practice, good mechanics, but poor architects. A few exceptions to the general rule were, however, in England, at that epoch of universal reform, engaged in what we now term, the speculations of the analytical and philosophical jurists. One disciple of the new English school, Mr. Humphreys, of Lincoln's Inn, had already done some practical work in the direction of a real property code, and our revisors availed themselves freely of his labors. Most of the proposed reforms in this department of the Revised Statutes are doubtless attributable to Mr. Humphreys, though in some respects the revisors departed from this gentleman's scheme, revised his language and rejected his suggestions—not always as some may conclude with the happiest results. Despite the felicity of our revisors' expression, and the great merit of their revision as a whole, they went either too far or not far enough in their revision of the real property laws. Either they left some useless things standing, or they rebuilt what they should have destroyed. Whether the legislature would have sanctioned a more radical reform is perhaps another question. But it is a matter for regret that at so opportune a time, a further reform was for any cause neglected.

In the attempted abolition of antecedent conceptions of trusts, our revisors had the advantage of a hostile feeling which had grown up in Chancellor Kent's time, against the purely Anglican notions of that traditional originator of all trusts, the Court of Chancery. Any attempt to engraft the English chancery system on democratical institutions was open to valid objections. The cy pres doctrine of charitable approximation, emanating from a dispenser of the gracious goodness of a parens patriæ, had no earthly relation to this country; aud it was often argued that the whole theory of judicial discretion was, in equity at least, on a wrong foundation, and that the New York chancellor was formulating doctrines which made his office obnoxious. Although our chancellors professed to be free of English precedents, subsequent to the War for Independence (1 Johns. Ch. 531), the evidence that they had travelled via nova was not very strong. Indeed, their power to take a new course, was handicapped by a constitutional limitation and by

the solemu formulæ of their judicial predecessors which prevented any striking originality of thought or language. It was supposed that a code of trustlaws might impart new tendencies and cure old evils. Any perusal of the political utterances of the time demonstrates that the legislature were ready to alter the law of trusts, if for no better reason, for the purpose of circumscribing the judicial power of the chancery.

The Court of Chancery in New York, like its prototype, had always jurisdiction over most trusts; and the law of this forum was purely an English original inherited from the colonial relation. Therefore, in any consideration of the historical growth of our particular law of trusts it is necessary to begin at the fountain head, the English law. The local deviations from the current of authority, and the modifications caused by the new form of government may then be traced in their proper order.

A few trite historical facts, inseparably associated with the English law of trusts, enable one to observe more distinctly the changes made by the Revised Statutes. The clerical chancellors, versed in the civil law, and acting on the analogies of the fidei-commissary trusts of the Romans, first, as the historical jurists agree, assumed a jurisdiction over uses or over those purely equitable property interests, of which the ruder English law had no definite conceptionfor the purpose of enabling the monasteries to evade the laws against mortmain. In foro conscientice these chancellors decreed that the true owners of property should have justice done them by the apparent owner• A jurisdiction thus acquired, over the persons of monastic trustees, soon extended to a control over all persons seized to uses. Some jurists think that trusts had a definite place in English jurisprudence before uses proper were conceived of. But, be this as it may, there is little doubt that both uses and trusts grew from the civil law doctrine, promulgated in England by the clerical chancellors, and that originally they were quite identical in character. Prior to the Statute of Uses (27 Hen, 8) a use was a species of permanent trust in lands. By the medium of uses important modifications of property, quite at variance with the rigorous rules of the Feudal law were enabled to be made. But flourishing too unrestrictedly, the system finally became rank from the abuse of secret and purely formal uses. The Statute of Uses designed to cure the multi-form evils by which the responsibilities of property were evaded, converted the beneficial owner of the use into the legal owner, or rather it annexed the titular ownership to the beneficial ownership. The proper owner thus became the responsible owner of real property. It was soon perceived that unless chancery interfered to prevent a complete annihilation of all uses, hardships as well as benefits would be occasioned by this statute. A recourse to chancery now excepted secondary uses, or the use limited upon a prior use, from the operation of the statute. Other like constructions again excepted other former uses, and the uses thus excepted, by a process of equitable construction, ultimately developed, under the auspices of the chancellors, into the modern law of trusts. The Statute of Frauds (29, Car. II), shortly prior to the English conquest of the New Netherlands put an end to secret trusts of a certain common character and required all trusts in lands to be manifested by some writing. Subsequent to this statute, trusts became fairly systematic, and the peculiar learning long associated with the systematic trusts composed a notable chapter in English jurisprudence. It was the extension of principles founded on trusts and called constructive trusts, which enabled courts of equity to penetrate the very labyrinth of fraud, and to ameliorate the conditions of society.

Subsequent to the English conquest of New Netherlands, the Statute of Uses, as part of the laws of England set in force here by the conquerors, became the foundation of our law of conveyancing; for the most primitive law courts of New York seem at once to have taken cognizance of executed uses. Later on, and by processes well understood, the local court of equity assumed that jurisdiction over certain uses which, in England, courts of equity theu exercised over secondary uses, temporary active uses, both called after the Statute of Uses, trusts, trust assignments of terms for years, and trusts in personalty (32 N. Y. 53). Although prior to the Revised Statutes, as fortunes in New York were small and tastes correspondingly simple, limitations in trust were not frequent, yet it was generally regarded that for all the purposes of revision, the New York law of trusts was almost identical with that of England, and indeed, that it included absolutely some stages of the development of that law in England. This was a fair presumption even in cases undecided here, for our chancellors, following about the same processes of reasoning from not dissimilar premises, generally reached the law laid down in like cases in England. Thus by a sort of fiction our peculiar law of trusts was, at the time of the Revised Statutes, supposed to be at about that stage of development then attained by the law, of England. It was in consequence open to the same objections urged against the trust law of England.

Having reference only to the duty to be performed by the trustee, there were said to be, prior to the Revised Statutes, two species of trusts, naked or passive, and active or special. The first species the revisors thought it needless to retain; they were in reality what most permanent uses were before the Statute of Uses, and therefore open to like objections. In reference to the manner of their creation, trusts were then divided by text-writers into trusts by act of the parties and trusts by operation of law, a division obviously faulty, for "implied" trusts belonged on both sides of the division. Implied trusts were those trusts by act of the parties, which, while defective in technical expression, the courts, by an exegesis, or operation of law, determined to have been intended as trusts by the responsible authors of the language. A better term for them would have been exegetical trusts. In order to briefly group the changes effected by the Revised Statutes, it may be well to recall the classification of trusts, then as now, generally accepted. Special trusts by act of the parties were such as under the revision we term the active express trusts, being those lawful trusts which were active in their nature and expressed in the writing of the settler as required by the Statute of Frauds. Trusts by operation of law were variously subdivided according to the slightly different processes, evidential and mental, by which the decree in chancery was arrived at, into presumptive, resulting and constructive. The main distinction between resulting trusts and constructive trusts, was that the latter arose ex maleficio. Resulting trusts, on the other hand, resulted from lawful circumstances which forbade the conclusion that a particular gift, grant, devise or limitation was intended to have conveyed the usufruct to the donee, grantee or devisee. These definitions, even if not precise, serve to indicate the existing classifications. Being arbitrary though, this classification was sometimes disregarded by courts and by jurists; and the terms, presumptive, implied, resulting and constructive, were then as now sometimes used as equivalents ($ 54, art. 2, c. 1, part II, R. S.; 47 N. Y. 547). The recognized classification by these catch-word terms is, however bad, better than a more accurate one, by means of arbitrary signs, could possibly be. It was