effect of which was to raise the water in a well upon plaintiff's land. Defendant, not for his own benefit, but simply with intent to divert the water from plaintiff's well, dug a ditch throngh the embankment, thus restoring the water to its natural course, and having the effect to lower the water in the well, to the plaintiff's injury. It was held that the action, which was for damages and to restrain the diversion of the water, was not maintainable. Such cases, though we do not question their correctness, should however be construed so as to justify any unauthorized invasion of another's rights. In Walker v. Cronin, 107 Mass. 555, the count was that the plaintiff was a manufacturer of shoes, and for the prosecution of his business it was necessary for him to employ many shoemakers; that defendant, well knowing this, did unlawfully and without justifiable cause, molest him in carrying on said business, with the unlawful purpose of preventing him from carrying it on, and willfully induced many shoemakers who were in his employment, and others who were about to enter it, to abandon it without his consent and against his will, and that thereby the plaintiff lost their services, and the profit and advantages which he would have derived therefrom, and was put to great expense to procure other suitable workmen, and compelled to pay larger prices for work than he would have had to pay but for the said doings of the defendant, and otherwise injured in his business. It was objected, inter alia, that this count of the declaration did not show that the persons induced to leave plaintiff's employ did not have a right to do so; yet the count was held to show a cause of action, and the demurrer was overruled. In a note to section 487 of Schouler on Domestic Relations, it is said that for a master to maintain an action it is enough if the service is one at will, if subsisting when interrupted. Salter v. Howard, 43 Ga. 601; Sykes v. Dixon, 9 Adol. & E. 693. In Rice v. Manley, 66 N. Y. 82, one S. had contracted by parol to sell and deliver to plaintiffs a quantity of cheese, but being made to believe by the fraud of the defendant that plaintiffs did not want the cheese, sold it to defendant. The contract was not binding under the statute of frauds, but would have been performed by S. had it not been for the fraud. It was held that the action was maintainable against the defendant. In Benton v. Pratt, 2 Wend. 385, where Seagraves & Wilson had contracted with plaintiff to purchase of him, to be delivered at a future time, twenty hogs, and nothing had been done to make the contract binding under the statute of frauds, and while plaintiff was preparing to perform his contract, the defendants knowing the fact, fraudulently represented to S. & W. that plaintiff did not intend to deliver his hogs, and this induced S. & W. to buy their hogs, and then S. & W. refused to take plaintiff's hogs solely because they had a full supply, it was held that where a contract would have been fulfilled but for false and fraudulent representations of a third person, an action for damages will lie against such person, although the contract could not have been enforced by action. "It is not material," says the opinion, "whether the contract of the plaintiff with Seagraves & Wilson was binding upon them or not. The evidence established beyond all question that they would have fulfilled it but for the fraudulent representation of the defendants." Green v. Button, 2 Cromp., M. & R. 707. In Walker v. Cronin, supra, after quoting Comyn's Digest (notes on "Case" A) as follows: "In all cases where a man has a temporal loss or damage by the wrong of another he may have an action on the case to be repaired in damages "-it is said: "The intentional causing of such loss to another, without justifiable cause, and with the malicious purpose to inflict it, is of itself a wrong. Carew v. Rutherford, 106 Mass. 1; Carrington v. Taylor, 11 East, 571, 574. * * * Thus every one has an equal right to employ workmen in his business or service, and if by the exercise of this right in such manner as he may see fit, persons are induced to leave their employment elsewhere, no wrong is done to him whose employment they leave, unless a contract exists by which such other person has a legal right to the further continuauce of their service. If such a contract exists, one who knowingly and intentionally procures it to be violated may be held liable for the wrong, although he did it for the purpose of promoting his own business. *** It is generally held that no action will lie against one for acts done upon his own land, in the exercise of his rights of ownership, whatever the motive, if they merely deprive another of advantage, or cause loss to him, without violating any legal right. What is the motive in such case is immaterial." Citing Chatfield v. Wilson, Frazier v. Brown, supra. But in Wheatley v. Baugh the suggestion "that malicious acts without the justification of any right—that is, acts of a stranger resulting in like loss or damagemight be actionable," was approved. "Every one has the right to enjoy the fruit and advantage of his own enterprise, industry, skill and credit. He has no right to be protected against skill and competition, but he has a right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or annoyance come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right, by contract or otherwise, is interfered with. But if it comes from the mere wanton or malicius acts of others, without the justification of competition, or the service of any interest or lawful purpose, it then stands upon a different footing, and falls within the principle of the authorities first referred to," i. e., Comyn's Digest and others. See also as bearing on the general question, People v. Fisher, 14 Wend. 1; Rafael v. Verelst, 2 W. Bl. 1055, where it was held that trespass lay against defendant for procuring by awe, fear and influence, and contrary to his own inclination, a sovereign, independent, absolute prince to imprison the plaintiff. Old Dominion S. S. Co. v. McKenna, 30 Fed. Rep. 48; 35 Alb. L. J. 208 (March 12, 1887, U. S. Cir. Ct., S. D. New York), and cases cited. From the authorities referred to in the preceding paragraphs, and upon principle, it is apparent that neither the fact that the term of service interrupted is not for a fixed period, nor the fact that there is not a right of action against the person who is induced or influenced to terminate the service, or to refuse to perform his agreement, is of itself a bar to an action against the third person maliciously and wantonly procuring the termination of or refusal to perform the agreement. It is the legal right of the party to such agreement to terminate it or refuse to perform it, and in doing so he violates no right of the other party to it, but so long as the former is willing and ready to perform, it is not the legal right, but it is a wrong, on the part of a third party to maliciously and wantonly procure the former to terminate or refuse to perform it. Such wanton and malicious interference for the mere purpose of injuring another is not the exercise of a legal right. Such other person who is in employment by which he is earning a living, or otherwise enjoying the fruits and advantages of his industry or enterprise or skill, has a right to pursue such employment undisturbed by mere malicious or wanton interference or annoyance. Every one has a perfect right to protect or advance his business, if in doing so he infringes no superior legal right of another. Fla. Sup. Ct., March 27, 1887. Chipley v. Atkinson. Opinion by Raney, J. MORTGAGE BY DEPOSIT OF TITLE DEED. -An equitable mortgage resulting from the deposit of title deeds any thing further being done. S. C. Sup. Ct., Feb. 19, 1887. Hutzler v. Phillips. Opinion by Simpson, J. can exist only where such deposit is the matter relied upon, without any thing further being done; and where the title deeds were deposited with an attorney for the purpose of having a mortgage drawn, and the mortgage was actually drawn, and sent with the title deeds to the intended mortgagor for formal execution, which was prevented by his sickness and death, no equitable mortgage is created. The leading case upon this doctrine in England is the case of Russel v. Russel, 1 Brown Ch. Cas. 269. In fact it is from this case we first hear of it. It was followed by Birch v. Ellames, 2 Anstr. 429; and although it has been violently attacked and denounced as pernicious by eminent English judges, and especially by Lord Eldon and Sir William Grant, yet it now seems to be well settled and firmly established in the English law, and in many of the American States, to a certain extent, to-wit: Where the title deeds are deposited as a present security, and with the intent thereby to give a lien upon the land, such deposit shall operate as an equitable mortgage, notwithstanding the statute of frauds. The English courts however have manifested a determined disposition to keep within the letter of the precedents, and not to give the doctrine further extension. And accordingly they have held that a mere parol agreement to make a mortgage, or to de-litigation, a multiplicity of actions, and for the proposit a deed for that purpose, will not give any title in equity. There must be an actual and bona fide deposit| of the title deeds with the mortgagee himself in order to create the lien. These positions will be found sustained, we think, in the following English cases: Ex parte Whitbred, 19 Ves. 209; Ex parte Langston, 17 id. 230; Lord Ellenborough, in Doe v. Hawke, 2 East, 481; Ex parte Kensington, 2 Ves. & B. 79; Ex parte Coombe, 4 Madd. 249; Lucas v. Dorien, 7 Taunt. 279; Ex parte Coming, 9 Ves. 115. Also in 4 Kent Comm. 151, and Washb. Real Prop. It appears from these authorities that in England, and also in several of the States, that where the title deeds are actually deposited by the debtor with his creditor upon an advance of money, and perhaps even for an antecedent debt, as a security, there the equitable mortgage will arise, without more; the deposit standing in the place of an actual mortgage, and dispensing with the necessity of the execution of such mortgage. But will the deposit of title deeds for the purpose of having an actual mortgage prepared for execution, in accordance with an agreement to that effect, raise the equitable mortgage? In other words, where money is proposed to be lent upon the security of a mortgage to be actually executed and delivered, and the titles are placed in the hands of an attorney to prepare the mortgage, so as to accomplish the loan, which although prepared, yet the debtor, from accident or some other cause, fails to execute and deliver, although he has received the money, will these facts create the mortgage? Mr. Washburn says: "To give the effect of a lien to the possession of title deeds, it must be shown affirmatively that they were deposited as a bona fide, present, immediate security. If left, for instance, with the attorney for the purpose of his drawing a mortgage which had been agreed upon by the parties, it will not be sufficient. Mere possession even by a creditor is not enough." 2 Washb. Real Prop. 89. See cases referred to in note by Mr. Washburn. And in Ex parte Bulteel, 2 Cox, 233, it was held "that the delivery of title deeds to an attorney to prepare a mortgage deed does not amount to an equitable mortgage; otherwise if deposited expressly as a security for a debt." We think the weight of authority is against this doctrine being applied to cases with facts like those suggested, and that an equitable mortgage resulting from a deposit of title deeds can exist only where such deposit is the matter relied upon, without NUISANCE INJUNCTION -FERTILIZER FACTORY.A. filed a bill for an injunction to abate a nuisance, alleging that he was the owner of a farm bounded by a public road on which B. had erected and was operating works for making fertilizers, the fumes and gases from which injured and destroyed his fruit trees and crops, and frequently compelled the doors and windows of his dwelling to be kept closed, to protect the inmates from the offensive and sickening odors. B. answered, denying the injury, and alleging that he had operated the works for several years; that it was only occasionally that any inconvenience was caused thereby to A. and his family, and that he had invested $20,000 in the works, and did a business of $50,000 per aunum, which would be ruined if the injunction prayed for was granted. When a plain and adequate remedy at law cannot be obtained, the power of a court of equity to abate a private nuisance which is destructive of the property of a complainant, or renders its use and occupation physically uncomfortable, is no longer questionable. The jurisdiction of the court in such cases is predicated upon the broad ground of preventing irreparable injury, interminable tection of rights. Parker v. Winnipeseogee Co., 2 Black. 454; Story Eq. Jur., § 925; Wood Nuis., ch. 25. But to justify the court in the exercise of this extraordinary power, a strong prima facie case of right must be shown. The right must be clear, and its violation palpable. A mere diminution of the value of property by the nuisance, without irreparable mischief, will not be sufficient; and if the evidence be conflicting and the injury doubtful, the court will not interpose in this summary way; or if an injunction will work great injury to one party without corresponding benefit to the other, it should not ordinarily issue, especially when adequate protection can be had without it. Parker v. Winnipiseogee Co., supra; Swift v. Jenks, 19 Fed. Rep. 643. The right to pure air is incident to the land-as much so as the right to the uninterrupted flow of a stream of pure water which. runs through it-and no one can be permitted to pollute either to the injury and disadvantage of the owner. In large towns or cities the causes of atmospheric pollution cannot be as easily traced and marked as in more sparsely inhabited places; but even in the former, when the nuisance is well defined, and its source definitely known, the court will interpose to protect the rights of those who are injured by it. Each case however must rest on its own merits, and be governed by the special facts and circumstances surrounding it. The rule by which the court is guided in such cases is the ancient maxim that every one must so use his own property as not to injure another. When therefore the injured party cannot obtain redress by an action at law for the invasion of his rights his only resort is to a court of equity; and when a proper case is presented the court will not hesitate to protect his rights. But just here the difficulty often arises, as in the present case, of determining whether the facts will justify the court in the exercise of a sound discretion in awarding the writ. Admitting the truth of the complainant's bill, would the court be warranted at this stage of the case in grauting an injunction? The injury to her fruit and grain crops for this season, whatever may be its extent, has already been suffered, and the damage can be ascertained by a jury, or by such other mode as the parties may be able to agree upon. The physical discomfort to which the occupants of the farm are now subjected, as a direct consequence of the defendant's business, has been submitted to for the past two or three years, without easement of the public in that portion lying between high and low-water mark, with the right of the State to control the same, for the purposes of navigation and commerce, without compensation to the owner. According to the common law of Eugland, there were but two classes of riparian owners of land: (1) Those any attempt on the part of the complainant to seek its abatement by a preliminary injunction, and it becomes a serious question whether the court should now summarily interpose by writ to suspend the defendant's business, without giving it the opportunity of answering the bill, and requiring the complainant to prove her charges. The loss of crops, and the de-owning lands on tide-water, or waters in which the preciation of the rental and marketable values of the farm, so far as such losses have been occasioned by the defendant, can also be ascertained by a jury. The danger of future loss and injury does not appear to be so imminent that the complainant wll suffer irreparable mischief by letting the case proceed to a final decree on bill, answer and proofs. U. S. Cir. Ct., Dist. Dela., July 9, 1886. Sellers v. Parvis & Williams Co. Opinion by Wales, J. PARTNERSHIP NEGOTIABLE INSTRUMENT PROTEST - WAIVER.- A partner has the right, after the dissolution of the partnership, to waive demand and notice of protest of a note upon which the firm was indorser. That he had the right to waive demand and notice, so long as the partnership continued, is clear, and we see no good reason why the mere dissolution of the partnership should operate as a revocation of his authority. It operated, no doubt, as a revocation of all authority on his part to bind his former partners by new contract, but it did not revoke his authority to adjust, liquidate and settle the partnership affairs. The note was in the hands of the appellee for collection, and all the holder was required to do in order to bind Seldner & Son, the indorsers, was to make demand on the maker, and in default of payment to give notice to the firm, or to one of the members of the firm. And if Lippman Seldner, the settling partner, knew the maker was unable, or did not mean to pay the note, and that demand upon him would therefore be useless, he certainly had the power to waive demand and protest, and thereby save the note from dishonor. In doing so he does not make a new contract, nor does he incur a new liability, but merely dispenses with a requirement of the law intended solely for the benefit and protection of the indorser. The precise question before us was fully considered in Darling v. March, 22 Md. 184, and it was decided in that case, that a partner had the right, after the dissolution of the partnership and after notice of the dissolution, to waive demand and notice. "The waiver of demand and notice," say the court, "is but the modification of an existing liability by dispensing with certain testimony which would otherwise be required. If one of the former partners could not dispense with proofs which might be required at the time of the dissolution, he could not liquidate the accounts and agree upon balances. To waive demand and notice and to settle accounts is but to arrange the terms upon which an existing liability shall become perfect without further proof. In doing this, he does not make a new contract, but acts within the scope of a continuing authority." There is a broad distinction between a waiver under such circumstances and a promise by a partner made after the dissolution to pay a debt barred by the statute of limitations. The mere waiver of demand and notice does not, as we have said, create a new liability, whereas to permit a partner to renew a debt barred by the statute as against his copartners, by an acknowledgment or promise to pay made after the dissolution would be to allow him to create a new liability. Md. Ct. App., March 21, 1887. Seldner v. Mount Jackson National Bank. Opinion by Robinson, J. tide ebbs and flows, and these were designated navigable waters; (2) all others were those owning lands on waters in which there was no tide, and these were designated non-navigable waters. In the first class the banks and soil under the water is in the king as parens patriæ, or the lord of the man or, and the rights of the riparian owner extend only to high-water mark. In the second class the king has no rights, and the riparian owners on either side of the stream or river own the bed and soil ad medium filum aquæ. It is therefore apparent, that according to the English common law, the sovereign or public had no rights in the title to the banks or bed of any fresh-water river or water-course, whether the same was navigable or not, but that the whole of such rivers and watercourses, including their beds and banks, belonged to the riparian proprietors owning lands adjacent thereto. This doctrine of the common law has been, to some extent, modified by usage and statutes even in England. This doctrine was adopted and applied in the early decisions of many of the States in this country; but it was subsequently found to be unsuited and inapplicable here on account of our great fresh-water lakes and rivers. It was soon ascertained that the principle or individual appropriation could not be maintained, in regard to these great water-ways, without great detriment to commerce and the public interests. In order to remove this difficulty, and at the same time maintain the reason of the common-law rule in its general principles, the Federal and State courts of this country formed and adopted a new common-law doctrine suited to the necessities and conditions of this continent. By The Genesee Chief, 12 How. 443, the definition of a navigable river was modified so as to include in that term not only those rivers in which the tide ebbs and flows, but all rivers in this country which are in fact navigable. But neither this decision, nor necessarily the definition thus employed, affects the rights of riparian owners of lands bordering on this new class of navigable rivers. For the determination of these rights, under this American common law, we must refer to other decis ions. The common-law rule of England, and for a time in this country, as before stated, was that in all such rivers the riparian proprietor owned the soil to the center of the stream. People v. Platt, 17 Johns. 195; Browne v. Kennedy, 5 Har. & J. 195; Canal Trustees v. Haven, 5 Gil. 548. But if the river be in fact navigable, the public have a right to use it as a highway. Adams v. Pease, 2 Conn. 481; Berry v. Carle, 3 Greenl. 269. In Commmissioners of Canal Fund v. Kempshall, 26 Wend. 404, it was held by the unanimous judgment of the court of errors, that in all rivers above the flow of the tide, the soil to the center, and the usufructs of the water, are the property of the adjoining owners, subject, if navigable, to the public easement of navigation. This principle has, except in Iowa, been applied to the Mississippi and Ohio rivers. Morgan v. Reading, 3 Smedes & M. 366. In Ohio it has been adjudged, and we think correctly, that the ordinance of 1787 for the government of the Northwestern territory, which declares that the navigable waters leading into the Mississippi shall be common highways, and forever free, does not impair or abolish the common-law principle that he who owns the bank owns to the middle of the river, subject to the easement of navigation. Lessee of McCullock v. Aten, 2 Ohio, 307; Blanchard v. Porter, 11 Ohio, 138; 3 Kent Comm. 427, 432; Bullock v. Wilson, 2 Port. (Ala.) 436. In Pennsylvania the law has been settled by repeated adjudications that in navigable streams, such as the Ohio river, the title of the riparian proprietor extends to the ordinary low-water mark, and in non-navigable streams to the middle. Wood v. Appeal, 63 Penn. St. 210; Carson v. Blazer, 2 Bin. 475; Ball v. Slack, 2 Whart. 568; Tinicum, etc., Co. v. Carter, 61 Penn. St. 21. The same rule has been adopted in Michigan, North Carolina, Mississippi and Alabama. Moore v. Sanborne, 2 Mich. 520; Wilson v. Forbes, 2 Dev. 30; Commissioners Homochilto River v. Withers, 29 Miss. 39; Bullock v. Wilson, 2 Port. (Ala.) 436. In some of the States the decisions hold that the titles of the riparian owners whose lands are bounded by the Mississippi river extend to the thread of the stream. Morgan v. Reading, 3 Smedes & M. 366; Middleton v. Pritchard, 3 Scam. 510. But the more recent cases in these and other States limit the ownership of the riparian proprietors in the soil to low-water mark. Ensminger v. People, 47 Ill. 384; Bainbridge v. Sherlock, 29 Ind. 364. According to the foregoing and many other decisions which I have examined, but deem it unnecessary to cite, I think we may safely deduce the conclusion that the title of the riparian owner of land bounded by the Ohio river extends, at least, to low-water mark, subject to the public easement of navigation, and the right of the State to control its use for the promotion of commerce. It is true we have no decision in this State, or the State of Virginia, positively defining the rights of riparian owners of land bounded by the Ohio river. W. Va. Sup. Ct. App., Feb. 5. 1887. Barre v. Flemings. Opinion by Snyder, J. WE LEGALIZED FELONY. E are frequently indebted to the ALBANY LAW JOURNAL for something "rich and rare," and a more fruity paragraph we have seldom encountered than that upon the first page of its issue of May 12, in which it comments with just indignation upon the "pool bill," recently enacted by the New York Legislature. By that bill the Legislature, acting upon the ancient, threadbare, transparent pretext of improving the breed of horses, legalized, not the running of horses for cups, purses and gate money, but gambling on the event of horse races by all sorts and conditions of people everywere, facilitated and systematized by the ubiquitous pool seller. How the breed of horses could by any possibility be improved by permitting gambling upon their speed to be freely indulged in by people who care no more for horses than for cows except as implements for gambling, who never owned a horse and probably could not ride one if they had it, is one of the problems which we cannot solve. Yet this is one of the follies of a past age, older than the Godolphin Arabian, which seems to flourish in perpetual youth. The Legislature having thus legalized in one form a practice which, in other forms, the law, as well as public opinion, condemns as grossly immoral and highly injurious to society, proceeds to stultify itself by enacting that this very practice, which for five months in the year is legalized as a harmless and unobjectionable occupation shall be for the other seven months a felony, punishable by imprisonment from one year to five years. It is to the credit of the New York Legislature that it did not divide the year equally; by one short month in twelve it leans to virtue's side. Under this bill, if the governor should sigu it, a pool seller in New York will be a singularly composite character, a sort of Dr. Jekyll and Mr. Hyde; for five months in the year he will be a law-abiding citizen, pursuing a perfectly legal if not praiseworthy avocation; during this halcyon season he might well be, without incongruity, a Sunday-school superintendent, or even a deacon. But, alas for the other seven months! Then he must shut up shop, or else ply his vocation under ban of the law, in low dives or unlicensed grogshops, in imminent peril of a felon's doom, and all because it is August instead of April, or December instead of June. It may be, and probably is the case that the five months in which the selling of pools is permitted by the bill, constitute the whole period during which that business can be profitably prosecuted. If that is so, the Legislature of New York in effect says to the pool seller: "Your occupation is wicked, nefarious, criminal, absolutely felonious; you are nevertheless hereby authorized to carry on the business during all that portion of the year in which it can be conducted with profit to yourself, but if you dare to sell pools in any of seven months in which you can make nothing by it, we will assuredly put you in the State prison for a period of not less than one year, nor more than five years." No wonder the ALBANY LAW JOURNAL is ashamed of the majority of the New York legislators. The JOURNAL is decidedly of the opinion that the breed of legislators in New York need improvement far more than the breed of horses, and to judge from this brilliant legislative exploit we think its judgment is correct. In view of the emergency it calls upon Hercules for help. "We hope," it says, "the governor will get out his veto machine." But was not the JOURNAL a trifle "too previous" some weeks ago in objecting to Governor Hill's free use of the veto power? We certainly fully indorsed its views, but we propose to amend our confession of faith on the subject of the veto power, by adding that, when a bill would manifestly tend in its operation to the detriment of public morals, the governor should interpose and protect the people against their own misrepresenting representatives.-Central Law Journal. Order of the Supreme Court and proceedings of the commissioners reversed, with costs to relator in all courts-People, ex rel. Fairchild, appellant, v. Commissioners of Fire and Buildings of the City of Brooklyu, respondents. So much of the order as gives Welch preference reversed, and order modified so as to give Mrs. Cahill preference in payment next after Rogers, without costs to either of the several partiesBoyle v. Boyle.- -Appeal dismissed with costs-Canary v. Knowles.- -Appeal dismissed with costs-Ira Leo Bamburger v. Herman Duden.-Motion for reargument denied with costs-Wheeler v. Jackson and McFarlane v. Jackson.- -Motions to dismiss appeals denied with $10 costs-Reed v. Trowbridge and Burrows v. Dickinson.--Motion granted to dismiss appeal-People v. Evans.-Motion to advance granted, and case set down for argument next week Thursday, unless counsel agree upon an earlier date, without costs-Metropolitan Trust Company v. Tonawanda Valley Railroad Company.-Remittitur amended to read," without costs in any courts "-In re Cavid v. Gleason. Motion to advance granted, case to be argued some day after the 16th inst., to be fixed by the parties, without costs-Silvey v. Lindsey. The Albany Law and the history of our government has shown that Journal.it has been exercised by them with firmness, and ALBANY, JUNE 25, 1887. CURRENT TOPICS. THE American Law Review, in commenting on the to the fact that in Missouri, under the authority of Ex parte Jilz, 64 Mo. 205; S. C., 27 Am. Rep. 218, the decision of Dogberry Stofer would be conclusive as to the liberty of Cornelison; he could not be arrested again; Dogberry having jurisdiction to issue the writ, had jurisdiction of the subject-matter, and his decision is conclusive. This decision, the Review points out, is founded on Ex parte Yates, 6 Johns. 337, which was reversed in Yates v. Lansing, 9 Johns. 395. The Kentucky Court of Appeals, however, in Bethurum v. State, 11 Bush, 682, hold that a justice of the peace may not revise the decisions of the superior courts on habeas corpus. But as to punishing Dogberry, the Review says: "He cannot be punished for the erroneous exercise of a jurisdiction which the law gives him, any more than any other judicial officer can. If he comes out of his present trouble, the present of a distillery and a stud horse from the friends of Mr. Cornelison would be no more than a fitting compliment to his shining talents. At all events some means should be provided for elevating him above the humble sphere which he has so signally adorned, but in which his aspiring genius has been cabined, cribbed confined. Perhaps the State Board of Immigration of Texas might induce him to settle in that commonwealth. There, he might employ his conspicuous abilities in instructing the Court of Appeals that their recent conclusion that the omission of the foreman of a jury to cross the t of guilty' so that it appears as 'guilly' is immaterial,' while the omission of the letter in the same word making it read 'guity' is a fatal defect, is clear 'urrah,' and that the unfortunate prisoner who was found to be 'guilly' merely, is entitled to be enlarged on habeas corpus." yet in a conservative manner. They have always proceeded upon the principle that an act of the Legislature ought not to be set aside unless the conflict between it and the organic law is plain and unmistakable; and even then, if it can be upheld in part it will be done. But Governor Hill, by his veto message, backed by the opinion of an attorney a probably retained by the enemies of the measure, prevents the question of the validity of the bill from ever coming before the proper tribunals for settlement." The death of Chief Justice Mercur, of Pennsylvania, called out warm tributes of respect and affection from bench and bar. Judge Arnold said: "The day of great jurists has gone, I fear, until a change shall come, which, sweeping away the volumes of mere cases, will make a place for law-givers Until a new system is instead of law-recorders. established, the opportunity for developing great judges will not present itself. Legal principles are in danger of being lost in the maze of cases, which, seeming to apply those principles, often strain and sometimes disregard them. Take the present condition of affairs and contemplate its effect. The Supreme Court of this State disposes of 800 cases a year. So vast a volume of work, necessarily deprives the court, not only of the opportunity to hear them fully, but also of the time to give them that amount of thought and study, which is necessary to properly consider and decide them. Constant, unchanging listening for months, leaves too little time for study, for thought, and for mingling among men to learn their customs and habits, and their wants. If in this condition of affairs, a judge can endure the labors of office, preserve his health, and merit the esteem of his fellow citizens, he is entitled to be called a good judge. Such a man was Ulysses Mercur, chief justice of this Commonwealth." The English judges seem to have variant views of the rights of animals of the humbler sort. The Law Times assures us that "Mr. Justice Hawkins is reported to have been warned off private property when trespassing in pursuit of rats, while Mr. Justice Field is publicly chronicled as having lectured a juvenile in the streets of Lewes on the ille The Review, in speaking of Governor Hill's veto of the Crosby high license bill, says: "We are in accord with much that has been said by some of our learned legal contemporaries upon the question of the impropriety of the governor of a State veto-gality of cutting dogs' tails." Can it be possible ing an act of the Legislature on the ground of its being unconstitutional. In this case, for instance, there were, no doubt, more lawyers than one in the two houses of the Legislature of New York, as able as Governor Hill, who supported this measure and voted for it. Their opinions upon its constitutionality are presumptively as good as his. The governor of a State is not an aptly constituted tribunal or magistracy for settling the constitutionality of acts of the Legislature. Under our American system this power is vested in the judicial tribunals, VOL. 35 No. 26. that "ratting," deemed so reprehensible in a politician, is justifiable in a judge? We wonder if Mr. Justice Field is equally principled against the barbarity of cutting off dogs' ears. We have in this country a Mr. Justice Field who pronounced a legal judgment against the excision of Chinamen's queues as a punishment. Humanity seems to run in the Field family. The English judges are very unsophisticated, it seems. |