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not be practicable to distinguish with more pre- "the organized plasterers of London" is not above cision between the legitimate advocacy of a par- the law of the realm and in the long run it will ticular policy and attempts to enforce it by ruining be better even for the “organized plasterers men in their business. But there is no question this is so. that many of the things brought to light in “Wright v. Hennessey” could not safely be tolerated. Suppose that every group of

Abstracts of Recent Decisions.

persons with supposed interests in common wrote letters

MUNICIPAL CORPORATIONS and generally behaved towards all who seemed to

Where a bill in equity to restrain a probe in their way as the National Association of Operative Plasterers did through Mr. lennes- posed issue and sale of municipal bonds shows no

other valid reason why such issue and sale should sey; suppose that every tradesman sought to obtain custom by taking organized means to ruin

be estopped, except that the proceeds of the sale of

such bonds will go into, and be expended by, imhis neighbors who dealt elsewhere; that merchants trusted less to supply and demand than to threats proper hands, it is error to enjoin the issue and sale of retaliation, and every trade circular wound up in such a case, than to restrain the delivery of such

of such bonds, or to go further with an injunction, with a notice that, unless the particular wine, coals,

bonds when issued, to unauthorized hands, and to silk, cotton, were ordered of the sender within twenty-four hours he would do his best to ruin the prohibit the proceeds thereof from going into the

hands of, and being expended by, unauthorized man whose custom was solicited. Suppose that each of these groups acted in this spirit, and that South. Rep. 581.)

persons. (City of Tampa v. Salomonson (Fla.), 17 in consequence contracts were freely broken and men in large numbers were dismissed. Could so

Wills. -ESTATE DEVISED.-Under a devise “to ciety subsist with this bellum omnium contra omnes ?

my adopted daughter, H, to have and to hold for The evidence in Wright's case was that the plain and during the term of her natural life. And after tiff's business had fallen off 50 per cent. in conse

the death of H I give and devise the reversion or quence of the action of Rennessey. There would

remainder to her lawful issue, to bave and to hold be such a loss all round if everybody acted in his

the same in common to them, their heirs and assigns, spirit and sent out wholesale messages of war to the

forever. And, in case the said H should die withknife. Mr. Hennessey writes as if the operative out leaving lawful issue, then the aforesaid real plasterers were an ancient caste and he and his estate shall revert to my estate, aud I give and friends full-blown Brahmins who will not brook Mr.

devise the same to my heirs under the interstate Wright's pariahs touching things meant for sacred

laws.”—H takes a fee: the words - lawful issue' hands.

meaning lineal descendants, and having prima facie, It is astonishing how old abuses reappear under the force of words of limitation, and the words “in For some centuries trade corporations

not being such superadded words of all over Europe exercised various forms of monop limitation or distributive modification as will make oly. Strangers were not allowed to ply their trades the words “lawful issue” words of purchase. within a city until they had become “free” of it. (Grimes v. Shirk, Penn., 32 Alt. Rep. 113.) A long period of apprenticeship was an essential WILL.-VESTED REMAINDERS. - Testator devised condition to the practising of most professions and bis estate to trustees, a portion of the income being industries. Each town, and indeed ench industry, payable to his wife, who was authorized, during the were ruled by by-laws framed with absolute disre- trust, to dispose of one-third of the personal propgard of the interests of the whole community, and erty by will, and the remainder of the income to be with the exclusive object of benefiting the little puid in equal proportions to a daughter and three combinations in possession of the field.

It was

sons ; and provided that if the daughter or either this sort of slavery," to use Adam Smith's phrase, of two sons should die, leaving issue, the issue which the great economist sought to destroy. I should take the parent's share ; but power of disWherever these irksome restrictions have existed position was not given to any child. The trust they have been hurtful to trade, and their removal was to end on a fixed date, and the property was in England proved the beginning of an era of pros- then to be paid to testator's legal representatives : perity. Let Mr. IIennessey and other energetic Held, that the remainders did not vest on testator's organizing secretaries have their way, and we death, so that, on the death of the daughter before should soon see a system of industrial castes and the termination of the trust, her surviving husband corporate tyranny as oppressive as that exposed in became entitled to the income previously payable to the Wealth of Nations. It is satisfactory to know her, or to any part of the principal of the estate. that for the present, at all events, the mandate of (Eager v Whitney, Mass., 40 N. E. Rep. 1016.)


new names.


* But this rule must be modified in this country,

where estates are small, and the policy of our laws NEW YORK, 8 July, 1895.

is to distribute them with each generation, where Editor of the Albany Law Journal :

dower is one of the positive institutions of the esDEAR SIR.- The Executive Council of the Asso

tate, founded in policy, and the provision for the ciation for the Reform and Codification of the Law

widow is a part of the law of distribution, and the is glad to announce that it has arranged for the aim of the statute is not subsistence alone, but pronext conference to be held at Brussels, in the Palais vision commensurate with the estate. Thus, a husdes Académies, from the 1st to the 4th of October, band died in the possession of land which was not when the president of the Association, Sir Richard improved and was wholly valueless for agricultural E. Webster, K. L. M. G. Q. C. M. P. is expected purposes or lumbering. Its principal value, and to preside, and the Bourgmestre and Eschevins of practically its sole value, was in deposits of iron ore the city of Brussels will kindly entertain the Asso

contained in it. And it was held that the widow ciation.

was entitled to dower rights in the royalties realized The council will welcome to membership in the from the lease by the guardian of minor heirs of the Association any of the American judges and lead- mineral lands which were undeveloped at the time ing jurists of the United States.

of her husband's death, and solely valuable for the FRED. JAS. TOMKINS, M. A., D. C. L.,

minerals afterwards discovered therein. This is the Member of the Council, Secretary of the Reception correct doctrine in this country.” Committee, at the Guildhall, London.

* The English authorities should not be folP. S.- Application for membership can be made lowed. They define dower as a provision which to Mr. Alexander, 33 Chancery lane, London; or to the law makes for a widow out of the lands or Mr. Scott, at the time of the conference in Brussels.

tenements of husband and for her support and the F. J. T.

nurture of her children,

“The rules applicable in England, where landed RIGHT OF LIFE TENANT TO OPEN MINES.

estates are large and diversified, where the laws NEW YORK, August 12, 1895.

of inheritance are exclusive, where the theory of Editor of the Albany Law Journal :

dower is substance merely, and where there is a In the Students' Helper for July there appeared an strong disposition to free estates from even that article by Darius II. Pingrey, an article in which charge, should not obtain in the United States. there occurred a statement to the effect that unop- "So a widow should not be excluded from her ened mines could be developed by a life tenant. dower interest in mineral lands which, at the death This was so extraordinary a proposition that I wrote of her husband, are unimproved and unproductive, to the editor of the Helper for Mr. Pingrey's anthor and are chiefly and solely valuable for the minerals ities, there being no references to authorities in the contained in them. This doctrine is in accordance article. In reply I was referred to section 370 of with the interpretation of the statutes of the States Pingrey on Real Property. That section I find to providing for dower, though it is opposed to the be as follows (with citations as given):

English rule.

But the mere possessory right given “ The widow is dowable in mines which had by the United States Statutes to the location of a been opened at the death of the husband, and it is mining claim is not such an estate that dower can generally held that she cannot open new mines even be predicated thereon by State legislation as against upon the lands set apart to her as dower; that is to the United States and its grantees. say, a widow is not dowable of mineral deposits “Op examination of the late Michigan case cited where there is no opened mine.'

(In re Seager's Estate, 92 Mich. 186) I find that the The case of Black v. Elkhorn Mining Co., 52 Fed. narily be decisive of the right of the life tenant to Rep. 859, is authority only on the point contained continue working, but, on the other hand, it has been in the sentence last given.

whole body of Mr. Pingrey's text is allopted almost Lenfers v. Henke, 73 III. 405; Hendricks v.

without a change of language from the judge's McBeth, 61 Mich. 473; Kreer v. Stotenhur, 36 Barb. opinion, and he even cites all the authorities that (N. Y.) 641; Gaines v. Mining Co., 33 N. J. Eq.

are cited by the judge in support of the general 603; Crouch v. Puryear, 1 Rand. (Va.) 258; Clift v.

doctrine, except Coates v. Cheever, 1 Cow. 450; Clift, 87 Tenn. 17; 9 S. W. 198; Findlay v. Smith, Washb, on Real Prop. 166; Bishop on Married Wo6 Munf. (Va.) 134; Sayers v. Harkinson, 110 Penn.

men, S 246; and Scribner on Dower (2d ed.), St. 473; 11 id. 308; Irwin v. Covode, 24 Penn. St.

200-6; and he even copies the mistake of the 162; Neel v. Neel, 19 Penn. St. 323 ; Moore v. Rol judge in citing Clift v. Clift, 87 Tenn. 17, twice. lins, 45 Me. 493; Reed v. Reed, 16 N. J. Eq. 248; Billings v. Taylor, 10 Pick. (Mass.) 460; Bishop on ? In re St. Leger's Estate, 92 Mich. 186. Married Women, § 264; 1 Scribner on Dower (2d 3 Co. Litt. 30 h., 2 Bl. Com. 130. ed.), 200-6.

4 Black v. Elkhorn Mining Co., 52 Fed. Rep. 859.

said that if mines have been worked or used for A close examination of the Michigan case, it is some definite purpose, that alone would not give the thought, does not warrant the position taken that a life tenant a right to continue the working.” 9 life tenant may develope unopened mines. This

In section 584, Mr. Kerr says: “The life tenant, was a case where the guardian of infant beirs had

where he has a right to mine, in order to more adopened mines on lands valuable only for the miner- vantageously pursue such work, may open new pits als contained therein, and the court held that the and sink new shafts.?" But the opening of mines widow was entitled to dower in the proceeds of the and the opening of new pits and shafts must be conmines thus opened. The court say on page 197 of ducted and done on the tract of land already the report:

workel, and not upon a different tract of land and “In the present case the grant is by operation of in a place where the mine or vein bas never been the statute giving the use of all the lands of which opened or worked, " because a tenant for life has the husband was seized. The grant must be held no right to open new mines, the opening of new to include the use of the lands, irrespective of mines forfeiting the estate where such tenant is whether mines were opened upon them before or liable for waste. The American cases, however, after the husband's death. The question here is not have greatly modified the law of waste, so as to the impairment of one mode of enjoyment or source adopt it to the conveniences and requirements of a of profit to reach another. There is but one mode new and growing country, in order to encourage of enjoyment of the land in question, but one source tenants for life to make a reasonable use of wild and of revenue or profit. The land is susceptible of but undeveloped lands.13

The widow is therefor entitled to one- What I would like to know is whether the Amerithird of the amount in the hands of the petitioner.” can cases have modified the doctrine of waste “to

This is thought to be unnecessary to the decision adapt it to the conveniences and requirements of a of the case in hand and for that reason purely (lic- new and growing country" to such an extent as to tum.

justify the position taken by Mr. Pingrey in his I find that the same point is discussed by anotlier work on Real Property? It does not seem to the work on real property just out, and a contrary con

writer that they have. After a diligent search I clusion arrived at. I refer to Kerr on Real Property, have not been able to find a case that supports the recently apnounced by Banks & Bro. In section Michigan court in the dictum quoted, and upou 583, Mr. Kerr says: · Where mines, quarries, clay- which Mr. Pingrey is content to announce the novel pits, gravel-pits, and the like, have been opened on doctrine. I trust that some one well-read in real the premises and worked by a former owner of the estate case law will furnish the wanting authority, fee, the tenant for life may continue to work them for I have a great deal depending upon being able without restriction limitation, for the to find an authority that can be safely relied upon reason that such mines have been nade part of to support Mr. Pingrey's position, which the Michithe profits of the land.* If a mine or quarry has gan case certainly does not do. been worked for commercial profit, that must order


one use.

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5 Billings v. Taylor, 27 Mass. (10 Pick.) 460; s. c. ? Elias v. Snowden Slate Quarries Co., L. R. 4 20 Am. Dec. 533; Executors of Reed v. Reed, 16 | App. Cas. 454, 465. N. J. Eq. (1 C. E. Gr.) 248; Rockwell v. Morgan, 10 Gaines v. Green Pond Iron Mining Co., 32 13 N. J. L. (2 Beas.) 384, 389; Coates v. Cheever, 1 N. J. Eq. (5 Stew.) 86; Crouch v. Puryear 1 Rand. Cow. (N. Y.) 460, 474 ; Lynn's App., 31 Penn. St. (Va.) 258; s. C. 10 Am. Dec. 528. Neel v. Neel, 19 Penn. St. 323, 324.

11 Westmorland Coal Cos. Appeal, 85 Penn. St. 6 Under a statute providing that the tenant for life | 344. shall have“ reasonable and necessary use and enjoy- 1: Gaines v. Green Pond Iron Mining Co., 33 N. J. ment" of the land, the right to work mines, quarries, Eq. (6 Stew.) 603; Coates v. Cheever, 1 Cow. (N. Y.) etc., will not be limited or restrained. Westmor- 460, 474; Viner v. Vaughan, 2 Beav. 466; Whitfield land Coal Cos. Appeal, 85 Penn. St. 344; Kier v. v. Bewit, 2 Pr. Wms. 242. Pattersen, 41 Penn. St. 357; Irwin v. Covode, 24

13 Gaines v. Green Pond Iron Mining Co., 33 Penn. St. 162.

N. J. Eq. (6 Stew.) 603; Ballantine v. Poyner, 2 · Crouch v. Puryear, 1 Rand. (Va.) 258; s. C., 10 Hayw. (N. C.) 110; Irwin v. Covode, 24 Penn. St. Am. Dec. 528.

162; Neel v. Neel, 19 Penn. St. 323; Hastings v. 8 Gaines v. Green Pond Iron Mining Co., 32 | Crunkleton, 3 Yeats (Pa.) 261; Findley v. Smith, 6 N. J. Eq. (5 Stew.) 86.

Munf. (Va.) 134; S. C., 8 Am. Dec. 733.

New Books and New Editions. struction law with the amendments of the Legisla

ture of 1895. Chapter 2 deals with the Excise Law, SMITH ON CHATTEL MORTGAGES AND CONDITIONAL which is excellently annotated with citations at the

SALES IN THE STATE of New York, 2d Edition, end of every section, and shows clearly the amendBY P. C. DUGAN, Esq., OF THE ALBANY BAR.

ments made by the last Legislature and with the

new sections. Chapter 3 deals with special acts The second edition of this work was made relative to Excise Commissioners and Excise moneys, necessary by the decisions rendered since the and gives a special law relating to powers and last edition and by the many changes in the statute pledges for liquor sold, and the Civil Damage Act law. The frequency in these days of conditional and is followed by a chapter on the Public Oficer's sale of property to secure payment has largely Law. Chapter 6 deals with Code Provisions, while increased the interest in this branch of the law. Chapter 7 is on local statutes relating to excise, with The edition begins with the chapter on the “In

a special act relating to the State and counties.

Chapter 8 deals with United States statutes relating strument." The subsequent chapters are on the

to wholesale and retail liquor dealers, and Chapter filing and refiling of chattel mortgages, the validity 9 is in relation to rights and liabilities to innkeepers. of chattel mortgages, the disposition and sale of

After this comes the chapter with forms on this the mortgaged property, assignment of mortgages subject, and an excellent index completes the of ships and vessels, and the supplement contains volume. Published by Matthew Bender, 511 & 513 chapters on the same subjects except that Chapter Broadway, Albany, N. Y. VI, which deals with contracts on conditional sale of

COMMENTARIES OF THE LAW OF CORPORATIONS. personal property. The well-known ability and

By SEYMOUR D. THOMPSON. learning of the editor of the second edition makes the second appearance of this work, perhaps, more

Vol. 4. We have already carefully reviewed the

first three volums of this excellent and tremendous important than the first edition, and the general care which was used in the preparation of the work, and have also published a most careful and

learned review of the books already published by second edition makes the work up to date in all John F. Dillon, of New York city. It seems alrespects. Published by Matthew Bender, 511 and

most unnecessary to repent the encomiums of praise 513 Broadway, Albany, N. Y.

which have already been accorded to this publicaJEWETT'S MANUAL FOR ELECTION OFFICERS AND

tion except, perhaps, to note that the same excel. Voters oF THE STATE OF New York, By F. G. edge is evinced as in the former three volumes we

lence of literary and scientific research and knowlJEWETT, OF THE SECRETARY OF STATE OFFICE

have seen. Vol. 4 begins with chapter 86, on the THIRD EDITION.

rights of membership, and continues with the rights The changes in the election laws made by the last to inspect books and papers, other rights and remeLegislature made the appearance of this work a dies, remedies of shareholders in equity, injunctions necessity and practically a useful remedy and the in aid of such remedies, and when such remedies method of handling the subject in the past has been extend to winding up and when not, further as to repeated in the third edition. The scope of the the release of parties to such actions, pleadings in work in this edition has been greatly enlarged and such actions, varies matters of practice in such the work most clearly show the laws of the State in actions. Title 8 treats of ministerial officers and general with the special elections laws in relation to changes, and power of the president and other offthe cities of New York and Brooklyn. The changes cers of the corporation, the cashier of a bank, the in the Senate and Assembly districts in number and teller and other officers. Title 9 deals with forinal in territory also made the publication of this work execution of corporate contracts, and deals with a practical benefit to lawyers as well as to officers of negotiable instruments, parol contracts and implied elections and perhaps of political organizations, and contracts. Title 10 is about notices, estoppel ratithe directions for voting contained in the work will fication, while title 11 contains chapters on franbe found of great aid to the instructors of voters at chises, privileges and exemptions. Title 12 deals the coming election. The work is complete in every with corporate powers and the doctrine of ultra respect and contains a full practical index. The vires, and has chapters on corporate powers in gene maps showing the senatorial and assembly districts ral, interpretation of charters, financial powers, while will be of considerable value to those who use such chapter 126 deals with powers relating to negotiable a work. Published by Matthew Bender, 511 & 513 papers. The enormity of the work and the manner Broadway, Albany, N. Y.

in which it deals with this large and increasing

branch of law makes the work equal to any of the THE EXCISE AND HOTEL LAWS OF THE STATE OF

standard commentaries of this or any other era. New York, By ROBERT C. CUMMING AND FRANK The true value of the work will have its lasting B. GILBERT, OF THE STATUTORY REvision Com effect on the law and lawyer of this and future

generations. This is a treatises of 253 pages on this important Published by Bancroft Whitney Co., San Fransubject. The work begins with the statutory con- I cisco, Cal.


The Albany Law Journal.

ALBANY, AUGUST 24, 1895.

portionate to their injury to the State in preventing companies from doing business within our boundaries? Will it not require the use of a flood of gold to secure there repeal ? Gentlemen of the legislature, in time you may kill the goose that lays the golden egg.

Current Lopics.


(All communications intended for the Editor should be ad

Commenting on the Draft Companies Act dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other Amendment Bill which Judge Dillon writes of business matters, should be addressed to THE ALBANY LAW

the Law Times says: JOURNAL COMPANY.]

Everyone will hail with satisfaction the reT must be remembered that the majority of companies are honestly formed for carrying port of this committee and its draft of a bill for

companies are honestly formed for carrying amending the companies acts, and most will on a legitimate, though it may be a speculative think that a very prudent middle course has enterprise or business, and the business is con- been taken between the opposing dangers of ducted with honesty and reasonable ability and leaving too much to the prudence of investors, judgment.” Such is part of the report of the and of laying too heavy burdens on the backs committee appointed to make recommendations of directors. A few matters appear to call for and changes in the English Companies Acts, comment. and if all corporations were formed honestly

The first clause, which makes the certificate and conducted without any endeavor to take of incorporation conclusive for all purposes, is advantage of the public there would be little of more importance than is generally known. necessity to have any of the present relations, For many years it was thought that associations regulations and restrictions in the corporation could be formed into companies at common laws of this State. There is little doubt, as law, and then registered under Part VII of the Judge Dillon suggests in his letter published in Companies Act 1862. As this course involved these columns, that many of the present severe a considerable saving of stamp duty, it was provisions of the corporation laws of this State largely adopted down to 1890 when the board should be modified to the end that a larger of trade refused any longer to allow it, a ruling number of business interests may be induced to which was upheld in the Court of Appeal in Ex begin their legal life and existence under our parte Johnston (1891), 2 Q. B. 598. This case State laws. How far we can loosen the restric. shows that such an association is one which tions which we now have is a difficult matter to cannot be registered, and accordingly the cerdetermine, but the changes should at least tificate of incorporation, which only deals with attain the results which Judge Dillon suggests. the forms and details of registration (see NaAfter all, when we realize the practical results tional Debenture Corporation (1891), 2 Ch. at of the provisions of the New York Statutes in 517), is no protection to the great number of regard to corporate companies, we must appre companies already registered in this manner, ciate that the seemingly severe prohibitions and and if the question were raised it would probarestrictions which we have referred to, are bly be held that they are unincorporated bodpartly only imaginative and that is only neces- ies, and that the shareholders' liability is sary to resort to subterfuges to evade laws unlimited. which are shibboleths of regulations rather than The clauses of the bill which, however, arrest actualities. Corporations are formed under most attention are those which deal with the the laws of other States and carry on business prospectus and the first allotment. No one here with enormous capital stock much of will dispute the advantage of compelling fuller which only represents the dreams of the incor-disclosure of preliminary contracts, of the porators. Are these restrictions in our statutes profits of vendors, of the amount of promoters' in many cases the result of the work of over- remuneration, and preliminary expenses; but anxious patriots in the legislature who were not the result of a failure to make proper disclosure properly persuaded that their views and fears is dealt with in an unsatisfactory manner. The were wrong? Are these practical benefits pro. matters to be disclosed are in some cases of

VOL. 52 - No. 8.

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