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" What that means, ' said the client, “I ha'int an idea.
The dog, by the Romans esteemed very much,
“The common law doctrine, as clear as the day-
EADERS of the Journal have already been in
formed of the fact that the Hon. Rufus W. Peckham is the owner of a summer villa and a tract of land at Knowersville, delightfully situated. Since oocupying his villa Judge Peckham has manifested some interest in agriculture, and his bay-field has shared that interest. A few days since, it is said, he gave his man instructions to harvest the bay, and coming into the city was soon deeply immersed in solving some difficult legal questions which had been argued before him. On returuing to the country seat in the evening the hay-field was the first object of his attention. “Well, I see you have cut the hay," he remarked to his man as he adjusted his gold-rimmed eye glasses and glanced over the field. “Oh, yes, sir," replied the man deferentially. “But you haren't cleaned it up very well, I should judge," continued His Honor as he poked his cane toward two or three small heaps of the freshly-mown and sweet-scented grass, "what's that?" "That!” exclaimed the man somewhat taken back, “Why that's the crop.”'-- Albany Evening Journal.—The American Law Register for July has a leading article by Adelbert Hamilton, on Discrimination in Railway Facilities, and the following cases in full: Nichols v. Pitman (Ch. Div.), ou property in public lectures, with note by Marshall D. Ewell; City of Denver v. Bayer (Colo.), on rights of abutting owner in highway owned by the public, with note by Lucius S. Landreth; Heenrich v. Pullman, etc., Co. (U. S. Dist. Ct.), on liability of master for unauthorized act of servant, with note by John F. Kelly: Lydecker v. Bogert (N. J. Chan.), on effect of mortgagee's purchase of the mortgaged premises on fore. closure, with note by John H. Stewart.
The Albany Law Journal.
ALBANY, AUGUST 30, 1884.
Mr. Alexander Porter Morse, of Washington, read a paper on “The Citizen in Relation to the State." The paper was very ineffectively read, much of it being inaudible, and was much too alstruse and heavy for the occasion. Mr. Morse has heretofore written well on this subject, but his writings are of the kind that ought to be studied rather than orally delivered.
Saratoga last week was fairly well attended. Judge Poland, the pole star of the association, was On Thursday morning Judge Dillon delivered there, so of course everything went well. Much the annual address, on the Legal Institutions of of the success of the arrangements is due to the in
America as nearly as we could name it. The day defatigable secretary, Mr. Edward Otis Hinckley, was very bot, and for the first twenty minutes the of Baltimore. We missed the familiar face of Mr. speaker was beguiled into the notion that it was Phelps, and on the other hand Judge Peabody and
the fourth of July. But after getting over magna Mr. Field made their appearance — their first, we
charta, habeas corpus, and trial by jury - and we believe. Mr. Storrs was absent, probably finding are glad to learn that he believes in the latter - he the stump more interesting than the wells of Sara- settled down to the merits of our legal institutions, toga. The address by the president, Mr. Courtlandt and confessed that our laws are wanting in cerParker, was well spoken of, but we did not have tainty, publicity and convenience. The remedy he the opportunity of listening to it. By the courtesy suggested is codification and statutes. He does of Mr. Hinckley, we shall be enabled to give it in
not advocate a detailed code, such as Bentham full to our readers next week. Probably Mr. Par
would have had, but he would make a code of simker did not mean it as a joke, but it must have plicity, brevity and clearness, stating the great been funny to hear his prognostication that the principles of our established decisions, and graduspirit of the married woman's act would abolish ally reduce all these to a code or statutes. The "the institution of home.” Better not have address was generally admirable, always vigorous, "home" than that it should be a place where one
frequently eloquent. It did our souls good to hear balf the human race steal away the natural rights a live man on a live topic, and from the enthusiasof the other half to liberty and property, say we.
tic applause which frequently interrupted him we Right is superior to sentiment which simply dis- were led to believe that there really is life in the guises oppression.
American Bar Association, appearances to the contrary notwithstanding. It is high time for it to
come out of the grave-yard of the constitutional On Wednesday evening Mr. Andrew Allison, of
fathers, stop picking the moss off the grave-stones Nashville, Tennessee, read a paper on the “ Rise
of the great old lawyers, lay aside its mourning and Probable Decline of Private Corporations in
and its laudation of the past time, and take hold America.” This was a thoughtful production, in
of topics which are really agitating the minds of excellent literary form, and very effectively read. We think however that Mr. Allison exaggerates the
living people, such as codification, the jury, abuses
in the administration of criminal justice, and the potency of the “College decision." All our State
like. We revere Chief Justice Marshall and Daniel Constitutions or our statutes or particular charters Webster as much as anybody, but we see no pronow reserve to the Legislature the power of amend
priety in sitting up nights, and mourning because ment, alteration or repeal of corporate' charters
they were and are not. We have several good men granted by them. So that the effect of that decis
left - a number of them are in the American Bar ion is narrowed to the precise case of a charter that
Association — and there is work for them to do is unmistakably intended as a contract, and not as a mere franchise.
It is very important for this country that we lawMr. Allison is also in error, we
yers should contrive some way of rendering justice think, in attributing the decline in railroad-build
more speedy, cheap and certain, and of making our ing about 1873, to the “Granger decisions,” which,
laws more respected and respectable. This is the as we recollect, were not pronounced until much later. The decline is more correctly attributable,
proper work for the American Bar Association.
Let it bend its thoughts to this rather than to futile we think, to the general commercial depression of those years. We see no reason to believe that cor
lamenting that the old brooms cannot sweep back
the rising tide. porations are declining or are probably to decline. We believe in keeping a strong legislative control over them, and we disbelieve in the policy of long Another excellent point of Judge Dillon's address franchises. But in spite of this control capitalists was his reprehension of submissions on briefs, and will always be found in plenty to invest in them, of assignment of the writing of opinions by the and take their risks and their chances of managing judges before consultation and decision. We certhe Legislatures. Their ventures will still be rather tainly agree with him as to the importance of oral more certain than gambling in Wall street. arguments, and we do not know but the other
VOL. 30-No. 9.
point deserves the emphasis which he lays upon it. and injury produced to the occupant of adjoining We shall print the address in full in the present premises by the noise and vibration. The court number of this journal.
below held that the defendant was negligent in
erecting his building without leaving an open space An interesting discussion arose Thursday morn
between it and the plaintiff's building, but that the ing on Mr. Wm. A. Butler's report for the commit- amount of noise and vibration did not justify an tee on law reform, mainly addressed to the consid- | injunction, even against the working of the maeration of Judge Seymour D. Thompson's paper of chinery in the night. The court below said: "As last year on the abuses of habeas corpus. Judge
it regards the second head we incline to think Poland and others participated. This was the last that the respondent was negligent in not adopting of the exercises which we were privileged to hear,
a precaution that would obviously have tended to and we regretted that we could not listen to Mr.
lessen the inconvenience that his business might Simon Stern's paper on "The Prevention of Defec- otherwise produce to the occupants of the adjacent tive and Slipshod Legislation.” We hope to have houses. One who erects a manufactory in a neighan opportunity to give the substance of it, and com
borhood used for dwellings should pay due regard ment on it hereafter.
to the maxim, Sic utere tuo ut alienum non lodas,'
and suffer some abridgment of his own rights In one of the notes in its current number the rather than cause unnecessary injury to others. American Law Revier says: "In his speech on the Had the respondent, instead of building a partyplatform in the Chicago Democratic convention, wall, left three inches between his printing house General Butler pointed to the picture of Washing and the buildings on either side, sound could not ton above him, and said in substance that the father have been directly transmitted, and he would at of his country could not have passed the present all events have done all that was in his power to civil service examination for a twelve hundred dol- render the prosecution of his business consistent lar clerkship. In proof of this he mentioned the with the repose and tranquillity of his neighbors. fact that in Washington's will, which was in his We may now turn to the third head, the extent own handwriting, the word “clothes' was spelled and nature of the disturbance which is alleged in cloathes.' This allusion to Washington's will was
the bill, Conceding that the respondent did not another instance of a great lawyer going wrong. A proceed with sufficient care aud foresight in the hundred years ago the word was commonly spelled construction of his building it does not follow as Washington spelled it.” This is true, but for that he should be subjected to a restraint which all that, Washington, although “first in war, first may prove disastrous, by depriving him of his in peace, and first in the hearts of his countrymen,” means of livelihood. In every judicial proceeding would not have been first in the spelling-class.
He there should be a just proportion between the was a bad speller. We recollect that in his diary cause and consequence, the wrong complained of, he writes about the “elabaratory” at Cambridge, and the redress afforded by the court. A willful meaning the laboratory. We suppose there are not injury may justly be prevented at whatever cost, many lawyers past middle age who can pass the but the case is different where one who is proceedexamination aforesaid. We know we could not, ing in the ordinary course of a business that cannot and we doubt that a single one of the United States profitably be conducted in any other way, inciSupreme Court judges can.
dentally inflicts an injury on others. Under these
circumstances the question is relative, depending A correspondent criticises our citation of Oregon be occasioned by granting an injunction, which,
on the nature of the injury, and the loss that will Reports in the American Reports as “Oreg."— a criticism applicable also to this journal. He says the entire ground, and will compel the defendant
though nominally confined to a single point, covers we ought to write “Or.," and that we might as well write “New Y.” for “New York.” The com
to close bis present establishment and move else
where. The injured party is entitled to such comparison is of course sophistical, and if the writer had had as much experience in law editing as we have pensation in damages as a jury may think fit to had he would have assumed that we have some rea
award, but a chancellor ought not to intervene un
less the evidence is so clear as not to admit of re&son for changing the form of citation.
The reason is this: “Or.” is sometimes misprinted "Cr.” | conflicting, but the weight of the evidence appears
sonable doubt. . In this instance the testimony is (Cranch), and even “Ar.” (Ark.), and we have
to be that the noise which the bill describes as adopted the present form to make the citation
overpowering, intolerable, crashing,' and attended unmistakable.
with a vibration which shakes the doors and win
dows, amounts to little more than the sound of NOTES OF CASES.
the breakers on a distant beach, and that there is
no vibration except that arising from the passage N McCaffrey's Appeal, Pennsylvania Supreme of vehicles through the street. This statement is
an injunction was asked to restrain the operation sea is associated with pleasing ideas, while that of of printing presses on account of the annoyance the respondent's printing presses no doubt falls
painfully on sensitive ears, which regard it as an injury as to impute the having it, and negligently unwarrantable disturbance of the quiet of the affecting the health of persons injuriously as great night. Such a difference is hardly a sufficient ground a wrong as so affecting that of animals." See Boom for the prohibition asked for in the bill, but we do v. Utica, 2 Barb. 104. not think that it should be dismissed, or that the complainant's case is so entirely groundless that he
In Welsh v.
Village of Rutland, 56 Vt. 228, it was ought to bear the respondent's costs.” The court above said: "A person who resides in the center of damage resulting from the negligence of an engi
held that an incorporated village is not liable for a large city must not expect to be surrounded by the stillness which prevails in a rural district. He hydrant, whereby water escaped, formed ice on the
neer of its fire department in thawing out a must necessarily hear some of the noise, and occa
street, and a traveller falling on it was injured. sionally feel slight vibrations, produced by the Royce, C. J., said: “At common law it has been movement and labor of its people, and by the hum
a settled principle ever since the leading case of of its mechanical industries. The aid of a court of
Russell v. Men of Devon, 2 T. R. 667, decided by equity may be invoked to keep annoying sounds Lord Kenyon in 1788, that an individual cannot within reasonable limits. Every noise however is
sustain an action against a political subdivision of not a nuisance, nor when produced in the exercise
the State based upon the misconduct or non-feasof a lawful occupation should the strong arm of a chancellor necessarily be extended to suppress it.
ance of public officers.
This rule of ex
emptions extends, necessarily, to municipal corporaUnder the conflicting evidence in this case, both of the noise and of the vibratory effect of the working
tions so far as the reason of it applies, and that is
so far as the acts done are governmental and politiof the presses, and in view of the great damage cal in their character, and solely for the public which the appellee would sustain, if he were en
benefit and protection, or the negligence or nonjoined against pursuing his business, we think the
feasance are in respect of the same matters. * learned judge committed no error in refusing the
When however municipal corporations are not in injunction." See McKeon v. See, 51 N. Y. 300; the exercise of their purely governmental functions, 8. C., 10 Am. Rep. 659.
for the sole and immediate benefit of the public,
but are exercising as corporations private franchise In Smith v. Baker, United States Circuit Court, powers and privileges, which belong to them for S. D., New York, July 5, 1884, 18 Rep. 200, the their immediate corporate benefit, or dealing with defendant took his children when they had whoop- property held by them for their corporate advanting cough to the plaintiff's boarding-house. Plaint-age, gain or emolument, though inuring ultimately iff's child took the disease, and boarders were kept to the benefit of the general public, then they beaway from plaintiff's house by the presence of the come liable for negligent exercise of such powers disease. Held, that defendant was liable to plaint- precisely as are individuals. Hill v. Boston, 122 iff for the damages caused. The court, Wheeler, Mass. 344; 102 id. 499; East man v. Meredith, 36 J., said: “The defendant took his children when N. H. 284; Providence v. Clapp, 17 How. 161. So they had whooping-cough, a contagious disease, to of the construction and maintenance of water the boarding-house of the plaintiff to board, and works. Murphy v. Lowěll, 124 Mass. 564; 122 id. exposed her child and children of other boarders to 344; 102 id. 489; City of Dayton v. Pease, 4 Ohio it, who took it. The jury have found that this was St. 80; Gibson v. Preston, L. R., 5 Q. B. 219; Southdone without exercising due care to prevent taking coat v. Stanley, 1 Hurlst. & N. 247; 2 id. 244; 4 id. the disease into the boarding-house. She was put 67.
- She was put 67. Of ditches or drains: Chicago v. Langlass, 66 to expense, care and labor in consequence of her III. 361; 44 id. 295. Of bridges or culverts, and in child having it, and boarders were kept away by respect of structures which may obstruct the flow the presence of it, whereby she lost profits. Words of natural water courses, and of the pollution of which import the charge of having a contagious them by sewage and the like: Hill v. Boston, supra ; distemper are, in themselves, actionable, because Wheeler v. Worcester, 10 Allen, 591; 4 id. 41; Parprudent people will avoid the company of persons ker v. Lowell, 11 Gray, 353; Conrad v. Ithaca, 16 having such distemper. Bac. Abr. Slander, B. 2 N. Y. 158; Merrifield v. Worcester, supra; HazelThe carrying of persons infected with contagious tine v. Case, 46 Wis. 391; Hig. Waterc. 96; Wood disease along public thoroughfares so as to endan- Nuis., $ 688. And public works and improvements ger the health of other travellers is indictable as a generally: Lyme Regis v. Henley, 3 B. & Ad. 77; Quisance. Add. Torts, $ 297; Rex v. Vantandillo, Nebrasku City v. Campbell, 2 Black, 590; 1 id. 39; 4 M. & S. 73. Spreading contagious diseases Dayton v. Pease, 4 Ohio St. 80; Bigelow v. Randolph, among animals by negligently disposing of, or al- 14 Gray, 543; Child v. Boston, 4 Allen, 41. This lowing to escape animals infected, is actionable. rule has been held to apply to the discharge of sewAdd. Torts (Wood's ed.), 10, note; An-ler on v. age or other noxious substances in such manner as Buckton, 1 Stra. 192. A person sustaining an in- to pollute the surface-water, and damage the propjury not common to others by a nuisance is entitled erty of individuals. Winn v. Rutland, 52 Vt. 481; to an action. Co. Litt. 56a. Negligently impart- Gale Eas. 308; Merrifield v. Lombard, 13 Allen, 16; ing such a disease to a person is clearly as great an Johnson v. Jordan, 2 Met. 234. And if a plan
adopted for public works must necessarily cause some new vistas of our institutions and laws opened injury or peril to private persons or property,
before me, and yielding to the vividuess and force of
last impressions, I resolved to accept the invitation, though executed with due care and skill, the law
and to address you upon the “General Character of regards the execution of such a plan as negligence.
American Institutions and Laws"; and to offer for 2 Thomp. Neg. 742; Haskell v. New Bedford, 108 your consideration some observations upon the presMass. 208; S. C., 30 Ind. 235; S. C., 35 Mich. 296; ent, and some speculations concerning the future conS. C., 33 Ala. 116; S. C., 3 Comst. 463. The dition of our jurisprudence. It cannot be inapprofire department and its service are of no benefit or
priate, I think, to discuss such a theme before memprofit to the village in its corporate capacity. They and almost every State of the Union.
bers of the bar gathered together from every quarter, are not a source of income or profit to the village, The laws of every enlightened nation and its corbut of expense, which is paid — not out of any responding judicial system ought to be, and to a great special receipts or fund, nor defrayed, even in part, extent necessarily are, adapted to the traditions, manby assessment upon particular persons or classes
ners, habits, and sentiments of its people, to its physi
cal situation and character, to its political and econobenefited, as in case of sewers or water works -
mic condition and circumstances. If for example we but from the general fund raised by taxation of all
should lay side by side the existing French and Engthe inhabitants. The benefit accrues, not in any lish systems of law and jurisprudence, and view then sense to the corporation as such, but directly to the in the abstract as doctrinaires, we would probably have public, and the members or employees of the de
little hesitation in awarding the general superiority to
the latter. Yet nothing of a speculative nature is partment, whether acting as an independent,
more certain than that it would be difficult to conthough subordinate organization, or under the
ceive of a greater misfortune to each, than a comdirect authority of the general officers of the cor- plete exchange of their systems of law and jurispruporation, are, while acting in the line of duty pre
dence. scribed for them, not agents of the corporation in
How far our system of law is wise and consonant
with our institutions; how far the general laws of that the sense which renders it liable for their acts, but
system are adapted to the genius and wants and to the are in the discharge of an official duty as public industrial, commercial, and social life of the people: officers. To such it is held in many cases that the and how far the system itself, or the general condidoctrine of respondeat superior does not apply, and tion of the laws, admits or requires amendment or for their acts no liability can be imposed upon the
change, indeed complex and difficult, but
nevertheless important, and it may be useful inquir corporation except by statute. Dill. Mun. Corp.
ies. (1st ed.), $ 774; Hafford v. New Bedford, 16 Gray,
In 1878, while holding a term of court at Omaha, I 297; Fisher v. Boston, 104 Mass. 87; Maxmilian v. was one day pleased on entering the hotel to see the Mayor, 62 N. Y. 160; Smith v. Rochester, 76 id. 513; stately form and familiar face of the late Mr. Justice Jewett v. New Haven, 38 Conn. 368; Ogg v. Lansing, Clifford. He was accompanied by his wife, who with
an affectionate fidelity, so well known, was through35 Iowa, 495; Field v. Des Moines, 39 id. 575; Hel
out his public career as inseparable from him as his Sedalia, 53 Mo. 159; IIoward v. San Francisco, shadow, going with him whenever he journeyed as a 51 Cal. 52; Wilcox v. City of Chicago, Ill. S. C.; justice in eyre, or settled down to the labors of a term Edgerly v. Concord, 59 N. H. 78, 341.
in Washington. I expressed my surprise at seeing him beyond the Missouri river, remarking that I had never before heard of his being out of the orbit, which
embraced his circuit and his yearly journey from PortAMERICAN INSTITUTIONS AND LAWS.
land to Washington and returu.
“Yes," he answered, “ I am surprised at myself. In
the course of my long judicial service, I was never out [Address before the American Bar Association at
of what you call my orbit but once or twice, and then Saratoga Springs, August 21, 1884, by JOHN F. Dıl- not far or long. But this time I yielded to the persuaLON.]
sions of Mrs. Clifford and the children, and I bare
been to the Pacific coast and am so far on my return." Mr. President and Gentlemen of the Association:
With judicial gravity he added: “Two things I wish The embarrassment of selecting a suitable topic for to say. The first is that I have enjoyed every mile of the annual address before your associatiou must the route. The second that I reproach myself with have been felt by all who have previously undertaken
having been so long judge of the Supreme Court it, and may easily be imagined by others. Shall it be
without an adequate conception of the vastness and
graudeur of my country.'' a technical reading of some important statute, a Chief Justice Marshall
, according to the pleasant discussion of some controverted question connected reminiscence recalled by the esteemed and deeply lawith the law or its administration, or shall it be more meuted Mr. Potter in his address before this associageneral in its scope and purpose? This seems to be tion at its fourth meeting, assumed the knowledge
wbich Mr. Justice Clifford eventually acquired by exsettled by precedent, for I find that each of the addresses previously made on the like occasion, although
perience.* directly relating to our profession, and imbued and *“In the simplicity of Marshall's day, when the tinctured with a legal flavor, has been of a general or only indulgence was a bottle of Madeira in bad quasi popular character.
weather, Chief Justice Marshall would, it is said, ocWhile I assent, without demur, to travel in the ac
casionally ask one of his associates to step to the win
dow and see how the weather was, and when the judge customed path, still the question recurs, what general
was compelled to report that the sky was cloudless topic shall be selected, and this, Mr. President and and the sun was shining brightly, Marshall would progentlemen, has been determined almost by accident. nounce this judgment: Well, our jurisdiction is so exI found the iuvitation which brings me before you to
tensive that I am sure it must be raining within it day awaiting my return from a recent first visit to the
somewhere to-day, and I think on the whole, we will
have our bottle of Madeira.'" Pacific coast.
Address of Mr. Clarkson N. Potter, published in the In the long journey, some old notions were modi
report of the fourth annual meeting of the American fied; others were confirmed; and here and there Bar Association, p. 193.