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CORRESPONDENCE.

PADDED REPORTS.

SIR-I have just received the sixth and last number of Vol. I of Abbott's New Cases. In it one case only is reported and over seventy pages are taken up with a digest of all cases of law and practice in the State decided during the time covered by the volume. The digest is arranged like Abbott's Digest, and we have every reason to believe that in a short time we shall be asked to buy a supplement to that digest, which will contain the same matter used to make up this volume. It was bad enough to have the series of reports, but to pad the volumes with matter which must be had in another shape is a little too bad. M.

BENCH AND BAR.

property and rights, and to a great extent coming into
need only in a few localities, this law has grown into
importance almost without notice by the lawyers
away from the mining districts. There have been
treatises issued relating to it, but heretofore no collec-To the Editor of the Albany Law Journal:
tion of cases or compilation of the rules resulting from
diverse systems of general law which from time to time
have governed those sections of our country where
chiefly the precious metals are found, has appeared.
The plan of the gentlemen who have prepared this vol-
ume is to devote each chapter to a topic; giving a lead-
ing case and appending a statement of the general and
particular principles relating to such topic in the form
of notes. Thus in chapter IV, which is devoted to
the subject of "Custom and prescription in general,"
the leading case is Perley v. Langley (7 N. H. 233), and
the incidents of the topic discussed are Requisites of
a Custom, Reasonableness, Proof, Copyhold Customs,
Profit in alieno solo and several other more or less im-
portant matters of the same nature. The book itself
is divided into two parts, the first treating of the law
of Mines and Minerals, and the second of Mining
Water Rights. In the first part the topics are Defi-
nitions, The general right of property in mines and
minerals, including mines under the sea shore, Sover-
eign rights as to mines, etc., in France, Spain, Mexico
and the United States, Custom and prescription in
general, The mining customs of the western States
and Territories, Mining claims on public lands, etc.,
Possession and occupancy in western States, etc., Lo-
cation under western mining customs, Abandonment
and forfeiture, and several chapters are devoted to
Finances, mortgages, transfers, contracts and leases
mining stocks. Chapter XVIII is upon the important
subject of injuries from mining operations and the
appropriate remedies, and is a very well-considered
treatise upon that subject. The chapters in Part II
are devoted to these topics, Common law of running
water and riparian ownership, Doctrine of prior ap-
propriation, Subterranean streams and percolating
waters, Artificial water-courses. The volume contains
a table of cases cited, a glossary of terms, and is well
indexed. The mechanical execution of the book is
good.

BISPHAM'S KERR ON RECEIVERS.

A Treatise on the Law and Practice as to Receivers appointed by the Court of Chancery. By William Williamson Kerr, of Lincoln's Inn, Barrister at Law. With Notes and References to American Authorities. By George Tucker Bispham. Second American edition. Philadelphia: Kay & Brother, 1877.

A work on Receivers comes very appropriately at the present time when most of the railroad and insurance companies are passing into the control of these officers of the court. The work before us is already well known to the profession, this being the second American edition. This edition contains references to American aud English authorities down to the present time, and embraces some decisions which had been omitted from the first edition. Numerous notes are given by the American editor, adding much to the value of the original work, and adapting it to the needs of our own practitioners. The editor has added an appendix of forms drawn principally from Seton on Decrees, but which has been made up somewhat from cases in actual practice in this country. The book contains an excellent index and table of cases cited, and will be found a valuable assistant to receivers and counsel who have occasion to deal with the matters therein treated. The book is well printed and bound.

Dennis Bowen, a prominent lawyer of Buffalo, died in that city last week, aged fifty-five years. R. P. C. Emmons, formerly Attorney-General of Florida, died in that State a short time since.

William L. Morris, a New York lawyer, has held the office of Commissioner of Deeds in that city for fifty-nine years. He was first appointed by DeWitt Clinton, and was a few weeks ago re-appointed by the board of aldermen for the sixtieth time. He is eightytwo years of age, and in vigorous health.

A gallant captain was up for his final examination before a well-known English judge in bankruptcy, and, as it was manifest that his creditors had discharge, felt it incumbent upon him to administer a been very badly used, the judge, in giving him his grave rebuke to the bankrupt. "I hope, sir,' he said, with judicial solemnity, "I shall never see you here Oh," returned the jocular bankrupt, "but again.", you will, though, I can tell you! Why, you don't suppose we pay you five thousand a year for nothing."

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The Hon. A. H. Stephens has entirely recovered from his recent illness, though he hardly looks a well man. Naturally small, he has wasted, withered and shriveled, until in weight and size he is a feeble child. His face is of a yellow ivory tint, seamed and crossed with a net-work of fine wrinkles, but his little blue eyes have a snap and light of their own that sickness cannot destroy. He made a singular figure in the Supreme Court the other day, arguing before that august body seated in his arm-chair.

Mr. Evarts in the Court of Appeals the other day told a story illustrating the comical complacency with which the Elevated Railway counsel viewed the damage to property-owners involved in building such roads. An Irish landlord traveling on the Continent received from his bailiff a letter saying that the tenants insisted that the rents they were called upon to pay were too high, and that they went so far as to threaten to shoot him if he did not obtain a reduction from his principal. The landlord promptly' wrote back to the bailiff: "Say to the tenants that I will not come down a penny, and assure them that the threat they make shall not influence me in the slightest degree."

..

Serjeant Sayer, an eminent practitioner of Lord Mansfield's time, went the circuit for some judge who was indisposed. Afterward, he was imprudent enough to move, as counsel, to have a new trial of a cause heard before himself, for a misdirection by the Judge. Lord Mansfield said: Brother Sayer, there is an Act of Parliament which, in such a matter as was before you, gave you discretion to act as you thought right. 'No, my Lord," said the Serjeant, "I had no discretion.' You may be right, Brother," replied Lord Mansfield, for I am afraid even an Act of Parliament could not give you discretion."

OBITUARY.

ENOCH H. ROSEKRANS.

ENOCH H. ROSEKRANS died at his residence in

Glens Falls, on the 1st inst. He held the position of Supreme Court Justice for the fourth judicial district for sixteen years, from 1856 to 1872, during one year of the time sitting upon the Court of Appeals Bench. He was considered an able lawyer, and was also a successful business man.

SAMUEL L. EDWARDS.

We are indebted to a valued correspondent for notices of Hon. Samuel L. Edwards, who died at Manlius, N. Y., on the 7th ult. The deceased gentleman was one of the oldest members of the Onondaga bar. He was born in the town of Old Fairfield, Conn., February 14, 1789, was graduated at Yale College in 1812, and shortly thereafter removed to Manlius. He was admitted to the bar as attorney in October, 1815. He held various offices, the principal being Judge of the Court of Common Pleas, Member of Assembly and Senator.

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NOTES.

NEW monthly publication, issued at Nashville, Tennessee, and entitled The Legal Reporter, has just made its appearance in the field of legal journalism. The chief purpose of this serial is the early publication of the decisions of the Supreme Court of Tennessee. It will not, however, confine itself to this alone, but will give opinions of value from other courts and information of general interest to the legal profession. It is in the form of a magazine, the first number containing 36 pages. It contains sixteen opinions in full and several pages of abstracts. The reporting of cases is well done, and the selection of abstracts judicious. The new publication will prove of much value to the bar of Tennessee and neighboring States.

The Missouri legislature has passed an act allowing criminal defendants to testify in their own behalf.. Ex-Senator Boutwell, who was appointed by the President commissioner to edit the new edition of the Revised Statutes, has been industriously employed upon the work ever since he received his commission. He has already completed the annotation of the constitution of the United States required by the statute, giving references to all decisions of the Supreme Court bearing upon its provisions. It is expected that the whole work will be completed by January next.

The following rule in bankruptcy was made by the United States District Court for the Southern District of New York, on the 25th ult.: "A cause in bank

ruptcy is not deemed to be finally disposed of until an order is entered in the District Court declaring its termination. After the expiration of seven months from the adjudication of bankruptcy and of two months from the final passing of the accounts of the assignees in bankruptcy under section 5096 of the Revised Statutes and on the certificates of the clerk and

register in charge of the case that no proceedings in the bankruptcy remains pending undetermined, and on the application of the assignee in bankruptcy or of any creditor who has proved his debt, such order may on notice to the bankrupt be entered."

A correspondent of the Boston Transcript refers pleasantly to a reception given by Judge Bradley to the students of the Harvard Law School as a welcome exception to the exclusiveness of Cambridge social life. The unrestricted conversation of the students with the professors reminded him of the pleasant reunions so frequent at German universities, where sprightly anecdotes and agreeable reminiscences tend to awaken reciprocal interest and to dispel the oppressive austerity of the lecture-room. The best thing in the education of the law school is this: it raises the tone of the student. He is brought face to face with educated men; he breathes for years an atmosphere of culture; and when he leaves the school he is a man of finer fiber than he was when he entered. Profess ors and students cannot be brought together too often outside of the class-rooms.

Under the provisions of an act of the New Jersey legislature, approved February 28, 1877, the law and equity reports of that State are required to be published in parts. In compliance with this act the reporter, John H. Stewart, Esq., has issued the first part of the first volume of Stewart's Reports (28 N. J. Eq.). This part contains opinions delivered in the Court of Chancery and in the Prerogative Court at February term, 1877, and in the Court of Errors and Appeals at March term, 1877. It will thus be seen that Mr. Stewart issues his reports more promptly than any other official reporter in the country. This, together with the excellent manner in which the work of reporting is done (the head-notes being carefully prepared and valuable annotations being appended to many of the cases) must be exceedingly gratifying to the bar of New Jersey.

We frequently hear of individuals who have enormous fortunes awaiting them in England. As a rule these fortunes are myths, but we have here a genuine fortune awaiting the Blake family, as is stated in a letter from Mr. Edward Preston, of 1, Great College street, Westminster, London, S. W. Mrs. Helen Blake, of Earl's terrace, Kensington, died in September last intestate, a widow, and without any known next of kin, leaving personalty to the value of £140,000, or thereabouts. The Treasury Solicitor took possession on behalf of the Crown, and issued advertisements for the next of kin, but none seem to have as yet appeared, as letters of administration were granted to the Crown Solicitor on the 14th of April. Of course it is just possible that next of kin may come in, as they did under an advertisement issued by the Crown in Mrs. Mangin Brown's case, another similar case of intestacy occurring a short time ago.— -The governor of Vermont has reprieved John P. Phair until the first Friday in April, 1879.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

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The Albany Law Journal.

ALBANY, MAY 12, 1877.

CURRENT TOPICS.

NUMBER of the business men of New York have signed a petition against making the Court of Arbitration in New York city dependent upon fees for its support. The grounds taken are that experience has proved the great advantage of such a court for the swift disposition of commercial disputes, and that no court is ever self-supporting. Our impression is that the petitioners are mistaken in both of their assertions. From what we are able to learn, the experiment of courts of arbitration has not proved a success in this State, nor elsewhere, where the common law prevails. As an instance of a self-supporting court, we need only name that of justice of the peace. The public are called upon to compensate this officer only when he performs duties other than those connected with the trial of civil causes. If the tribunal of arbitration is so useful, it must transact considerable business, and ought to take in fees enough to support itself, and those who appeal to it cannot put in the plea of inability to pay a reasonable sum to have their differences adjusted.

The Conference Committee on the new Code have

agreed to report in favor, first, of an act suspending the operation of the new Code until September 1st next; second, of the adoption of the nine chapters reported this year, and which complete that part of the revision relating to procedure, to take effect at the same time; and third, of the adoption of the amendments proposed by the Senate Judiciary Committee, and of the repealing act. Should the two houses act upon this report, which is probable, all rights acquired during the interval the new Code was in operation will be protected, and the old Code restored until September.

The Code of Remedial Justice took the bench and bar of the State by surprise for two reasons: no one expected that it was coming so soon, and it was believed to work a much greater change in procedure than it in fact does. During the time it has remained in force, most lawyers who have a reasonable amount of practice have become familiar with its provisions, and are less anxious for repeal or suspension than they were at first. There is, VOL. 15.- No. 19.

however, a strong feeling manifested in favor of the old code, which, if it had taken shape a year ago, would have prevented the enactment of the present one, and which may yet effect its repeal or material modification. The impression that the present act makes an entire change in the system of procedure has also taken possession of many members of the bar not over-supplied with business, but taking a great interest in legislation affecting litigation, and these will be satisfied only by a restoration of the old procedure. There are, however, some serious difficulties experienced by those having litigation pending on the 1st of May. Some legislation may be essential to remove these difficulties, and so to speak, bridge over the chasm between the old and new systems. That the Code itself will also be very largely amended if it remains in force, is on every side conceded. This fact has a tendency to prevent examination of its provisions further than is necessary for immediate purposes, the practitioner fearing that if he studies up the law as it now is, it will be labor lost, and will only tend to confuse him as to the practice finally established. Whatever may result from the action the profession is taking in the matter, the month will be memorable in the history of procedure in this State.

Mr. David Dudley Field, at the meeting of the New York bar, on the 4th inst., expressed most clearly and tersely the objections which lie to the continuance in its present form of the Code of Remedial Justice. The legislature of 1876, which enacted the law by which it came into effect, did not examine this Code, as is apparent by the circumstance that so many amendments have been Some two deemed necessary to fit it for use. hundred and seventy-five amendments, involving between three hundred and four hundred changes, have been proposed by the senate judiciary committee, and these are essential for the proper operation of the Code. The Code is incomplete, and the chapters already enacted ought not, standing by themselves, to remain the law. Some points of detail, such as inability to unite in a complaint, a cause of action to be tried by a jury, and one to be tried by the court, and the absurdities contained in the provisions of sections 212, 364 and 458 were mentioned, and the necessity of an interval between the time when such amendments as should be made were enacted, and that when they should go into effect was shown. A strong reason for the allowance of such an interval exists in the fact that it is essential that the amendments be incorporated into the Code, and time will be necessary for the purpose. While the profession may have had time to become familiar with the present Code, they have not with it as affected by the necessary amendments. Mr. Field thought the

remedy for the situation could only be found in one of two ways, either by a repeal of the act now in force, or a suspension of its action for a certain time.

A bill pending in the legislature, having for its object the abolition of the Marine Court of New York, is attracting considerable local attention. There have been many charges made against the court mentioned, and its methods of business, some of which may have had reason, while others were undoubtedly based on want of success in litigation before it. The legislature ought, however, to be sure, before it does away with the institution, that it can make provision for something better to take its place. If the result should be merely a substitution of one bad court for another, the matter might as well be let alone. Such faults as have shown themselves in the Marine Court come not from the tribunal itself, but from the elective judiciary system. There is a possibility, however, of modifying the evils which are liable to arise from that system, and that is by the united action of the bar. If the bar of New York city was as well organized as the medical profession of any school of medicine, irregularities in the inferior courts would be prevented, and the bench kept free from incompetent occupants.

The executive council of the Iowa State Bar Association, in a circular issued by it to the members of the bar of that State, takes the same ground heretofore advocated by us, namely, that an organization of this kind should embrace the entire bar. This association which we believe to be the pioneer State organization, it having been formed in 1874, already has three hundred members. An effort is now being made to enroll the entire bar of the State, the executive council saying that the association "will not have discharged fully its first duty until it has at least extended a direct invitation to every worthy member of the profession in the State to join its ranks." We have no doubt of the future of the Iowa association..

Lord Chief Justice Cockburn, in a letter to Judge Dillon, acknowledging the receipt of the last-named gentleman's well-known work on Municipal Corporations, states that "There is scarcely a discussion of any importance in which American decisions and American authors are not cited, and the judgments and dicta of a Marshall or a Story are as familiar to us as those of a Mansfield or an Ellenborough." The English law papers take exception to this statement as to the value of American decisions, though the Solicitors' Journal says that they are utilized there, not merely as authorities, but "as a quarry from which counsel hew out arguments, the origin of which they do not always acknowledge." The

same paper adds further, that if a careful investigation were made of the admirable arguments which appear in the various law reports on certain branches of the law, we have a strong suspicion that a transatlantic parentage would be found for many of them." The Irish Law Times, however, indorses the opinion of the Lord Chief Justice, and says that it is to be wished that American adjudications were more generally known in this country." American cases have in times past been sometimes spoken slightingly of by English judges and lawyers, but we think they are now regarded by the bench and bar of England with a higher respect than those of any other foreign country.

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In the legislature during the past week the only business of any general interest to the profession was the passage by the Assembly of a bill amending the law as to bank taxation, and the veto by the Governor of the bill allowing women to hold school offices. The Governor has vetoed a number of special bills, but, notwithstanding this check upon legislation, two hundred and thirty-nine approved acts of this session had reached the Secretary of State's office on the 8th inst. A new Conference Committee has been appointed in both houses to take care of the Code amendments. The bill relat ing to the Court of Appeals reporter is said to be dead, for this year.

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NOTES OF CASES.

N the case of Stoudinger v. City of Newark, 1 Stew. (N. J.) 187, decided by the New Jersey Court of Chancery, at the February term, 1877, it is held that if land be dedicated to the public for the purposes of a street, and it is accepted, the public right is complete, and the land may be appropriated to any use to which a street, acquired in any other mode, can lawfully be put. It is also held that the streets of a city may be lawfully used for the construction of sewers, whether the public right was acquired by condemnation or dedication. For what purposes the public may use a highway in which it has only the usual easement is sometimes a difficult question, but it seems to be conceded that the maintenance of a sewer is included in the uses to which it may be put. In Boston v. Richardson, 13 Allen, 146, the court say, "Whenever land is taken for public use as a highway, and due compensation made, the public have a right to make any use of the land directly or incidentally conducive to the enjoyment of the public easement, and such uses clearly include the making of culverts, drains and sewers, for the cleaning of the streets, and the accommodation of the inhabitants on either side." See also to the same effect, Chapman v. Alb. & Schen. R. R. Co., 10 Barb. 360; Milhau v. Sharpe, 15 id.

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210; Dillon on Mun. Corp., § 544; Angell on Highways, 216. A street or horse railroad has been decided to be among the uses to which the public may put a street. Hinchman v. Paterson H. R. R. Co., 2 C. E. Gr. 75; Pat. & Pas. H. R. R. Co. v. City of Paterson, 9 id. 158. But see Wash. Cem. v. Prosp. Park & C. I. R. R. Co., 15 Alb. L. J. 289, recently decided by the New York Court of Appeals. Here an act authorized the laying out of a public avenue and the construction of a railroad therein. The expense of opening and improving the avenue was assessed upon adjoining lands, and the defendant was authorized to lay its tracks therein, but was not required to contribute toward the expense mentioned. The court held that the track could not be laid by defendant without the consent of the proprietors of the soil, or until proceedings for condemnation were taken and compensation paid. See also, as to gas pipes, Bloomfield Gas Light Co. v. Calkins, 62 N. Y. 386. As to sewers, see Washburn Co. v. Worcester, 116 Mass. 458; Workman v. Worcester, 118 id. 168; Munn v. Pittsburg, 40 Penn. St. 364; O'Brien v. St. Paul, 18 Minn. 176; Thurston v. St. Joseph, 51 Mo. 510.

The duty of owners of premises toward infants trespassing thereon was considered in the case of Philada. Hydraulic Works Company v. Orr, 3 Week. N. Cas. 552, recently decided by the Supreme Court of Pennsylvania. The plaintiff in error, the company mentioned, was the owner of a private alley abutting on the highway, and constructed in it a moveable platform, twenty-four feet back from the street. At the entrance of the alley were gates inscribed with the words "Private" and "No admittance." The gates were sometimes open and sometimes shut. The platform weighed eight or nine hundred pounds, and worked upon a hinge projecting from a wall. When it was raised it rested against the wall, was counterpoised simply by its own weight. On one occasion when the gates were open the son of the defendant in error, a child of six years, went into the alley and pulled over this platform which weighed six or seven hundred pounds upon himself, injuring him so that he died. In this action for damage, sustained by such death, the court held the question of the negligence of the company was properly submitted to the jury. Paxon, J., however, dissented, on the ground that the child was a trespasser. The court does, indeed, carry the exception made in favor of children trespassing, to an extreme point. The company had taken a very great precaution to prevent the public from going into danger by providing gates, which were sometimes shut, but which, open or shut, contained a prohibition against entrance. The fact that some children will not obey such a warning indicates, if any thing, that they have not been prop

erly trained, and certainly ought not to furnish a ground for an action by their parents for loss from the results of disobedience. The case of Keffe v. Mil. & St. Paul R. R. Co., 18 Am. Rep. 393, carries the doctrine of liability in such cases far enough. In that case the injury was caused by a turn-table which was left unguarded in an exposed place, and which was very attractive to children as a plaything. See also note to Pennsylvania R. R. Co. v. Morgan, 14 Alb. L. J. 335, and cases cited; Hargraves v. Deacon, 25 Mich. 6; Zoebisch v. Tarbell, 10 Allen, 385; Barnes v. Ward, 67 Eng. C. L. Rep. 392; Hounsell v. Smith, 97 id. 731; Gautrett v. Edgerton, L. R., 2 C. P. 371; Hughes v. Macfie, 2 H. & C. 744; Mangan v. Atterton, L. R., 1 Exch. 239.

Boyd v. Wilson, 3 Week. Not. Cas. 521, and Warren v. Philadelphia Coal Co., id. 525, decided by the Supreme Court of Pennsylvania, the former on the 5th of February and the latter on the 30th of March, 1877, present another phase of the doctrine of implied warranty, which we considered in a note to Randall v. Newson, ante, page 323. In the case first referred to a broker effected a sale for plaintiffs to defendants, who were retail dealers, of 850 cases of what was described as "King's brand" of canned corn. The defendants had first been furnished with three of the cans for trial, and found them in perfect condition. No express warranty of the corn to be delivered was made, nor was fraud shown. Part of the lot proving bad, defendants refused to accept the balance. The action was brought for the purchase price of the whole. The court held that there was no warranty as to the quality, and that, therefore, plaintiff was entitled to recover. In the second case, plaintiff below, who had previously sold coal to defendant below, offered to sell him a lot at a certain price, accompanying the offer with a statement that it was of the same quality as that previously furnished. Defendant agreed to take it, but said if it was not good he did not want it. The coal was delivered, and an action was brought for the price. The court held that defendant was entitled to show that the coal was not as good as that previously furnished. The distinction between the two cases is clear, though at first glance the position of the vendee in one would seem to be no better than that in the other. In the last-mentioned case there was a stipulation as to quality, which had the effect of a warranty; in the other case there was an implied stipulation as to quality, but no warranty could be founded on this. In other words, an implied warranty can be founded upon an express stipulation, but it cannot be founded upon an implied stipulation. See Chandelor v. Lopus, Cro. Jac. 4; Jackson v. Wetherell, 7 S, & R. 480; Borrekins v. Bevan, 3 Rawle, 23; Whitaker v. Eastwick, 25 P. F. Smith, 229; and cases cited in note to Randall v. Newson, 15 Alb. L. J. 323.

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