"The common law doctrine, as clear as the day- A dog being worthless, unfit for food, An indictment for stealing him would not be good. Every loose dog is wild, and so you see hence it is Is a very good thing.' But when they are bred Civil damage, in books see cases recorded." To this dictum dogmatic the rest gave consent, But you can't tell a dog as a tree by his bark. In often-thumbed volumes, though studied for years, From the time of the pyramids down to our own, But so were all beasts, cattle, horses and hogs- If the law has not learned of his domestication The law, behind times in its education, Had better read up; and as I estimate, Is itself in a fera-natural state. The dog, by the Romans esteemed very much, The hunters afield their canes venaticos; The shepherds thought much of their canes pastorales; There must have been showmen with canes salitales; Dogs born on the farm were canes natales, And taxable dogs canes vectigales; Quales conditiones in nomine tales. In Greenland, where even the reindeer would perish, To the wild canine species? Wolf, jackal, and bear Was as docile to man as to-day he is shown. But who the dog's father was you care not, for, ah! I see you think more of his ma than his pa. Not property? worthless? how can this be, He is taxed too in some States-let us look at the facts- So the dogs being property, creatures domestic, NOTES. READERS of the Journal have already been in " formed of the fact that the Hon. Rufus W. Peck ham is the owner of a summer villa and a tract of land at Knowersville, delightfully situated. Since occupying his villa Judge Peckham has manifested some interest in agriculture, and his hay-field has shared that interest. A few days since, it is said, he gave his man instructions to harvest the hay, and coming into the city was soon deeply immersed in solving some difficult legal questions which had been argued before him. On returning 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 haven'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.), on 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 foreclosure, with note by John H. Stewart. THE ALBANY, AUGUST 30, 1884. CURRENT TOPICS. HE meeting of the American Bar Association at Saratoga last week was fairly well attended. Judge Poland, the pole star of the association, was there, so of course everything went well. Much of the success of the arrangements is due to the indefatigable secretary, Mr. Edward Otis Hinckley, of Baltimore. We missed the familiar face of Mr. Phelps, and on the other hand Judge Peabody and Mr. Field made their appearance · - their first, we believe. Mr. Storrs was absent, probably finding the stump more interesting than the wells of Saratoga. The address by the president, Mr. Courtlandt Parker, was well spoken of, but we did not have the opportunity of listening to it. By the courtesy of Mr. Hinckley, we shall be enabled to give it in full to our readers next week. Probably Mr. Parker did not mean it as a joke, but it must have been funny to hear his prognostication that the spirit of the married woman's act would abolish "the institution of home." Better not have "home" than that it should be a place where onehalf the human race steal away the natural rights of the other half to liberty and property, say we. Right is superior to sentiment which simply disguises oppression. On Wednesday evening Mr. Andrew Allison, of Nashville, Tennessee, read a paper on the "Rise and Probable Decline of Private Corporations in America." This was a thoughtful production, in excellent literary form, and very effectively read. We think however that Mr. Allison exaggerates the potency of the "College decision." All our State Constitutions or our statutes or particular charters now reserve to the Legislature the power of amendment, alteration or repeal of corporate charters granted by them. So that the effect of that decision is narrowed to the precise case of a charter that is unmistakably intended as a contract, and not as a mere franchise. Mr. Allison is also in error, we think, in attributing the decline in railroad-building about 1873, to the "Granger decisions," which, as we recollect, were not pronounced until much later. The decline is more correctly attributable, we think, to the general commercial depression of those years. 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 franchises. But in spite of this control capitalists will always be found in plenty to invest in them, and take their risks and their chances of managing the Legislatures. Their ventures will still be rather more certain than gambling in Wall street. VOL. 30 No. 9. We see no reason to believe that cor 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 abstruse 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. He does On Thursday morning Judge Dillon delivered the annual address, on the Legal Institutions of America as nearly as we could name it. The day was very hot, and for the first twenty minutes the speaker was beguiled into the notion that it was the fourth of July. But after getting over magna charta, habeas corpus, and trial by jury and we are glad to learn that he believes in the latter- he settled down to the merits of our legal institutions, and confessed that our laws are wanting in certainty, publicity and convenience. The remedy he suggested is codification and statutes. not advocate a detailed code, such as Bentham would have had, but he would make a code of simplicity, brevity and clearness, stating the great principles of our established decisions, and gradually reduce all these to a code or statutes. The address was generally admirable, always vigorous, frequently eloquent. It did our souls good to hear a live man on a live topic, and from the enthusiastic applause which frequently interrupted him we were led to believe that there really is life in the American Bar Association, appearances to the contrary notwithstanding. It is high time for it to come out of the grave-yard of the constitutional fathers, stop picking the moss off the grave-stones of the great old lawyers, lay aside its mourning and its laudation of the past time, and take hold of topics which are really agitating the minds of living people, such as codification, the jury, abuses like. in the administration of criminal justice, and the We revere Chief Justice Marshall and Daniel Webster as much as anybody, but we see no propriety in sitting up nights, and mourning because they were and are not. We have several good men left a number of them are in the American Bar Association and there is work for them to do It is very important for this country that we lawyers should contrive some way of rendering justice more speedy, cheap and certain, and of making our laws more respected and respectable. This is the proper work for the American Bar Association. Let it bend its thoughts to this rather than to futile lamenting that the old brooms cannot sweep back the rising tide. Another excellent point of Judge Dillon's address was his reprehension of submissions on briefs, and of assignment of the writing of opinions by the judges before consultation and decision. We certainly agree with him as to the importance of oral arguments, and we do not know but the other point deserves the emphasis which he lays upon it. We shall print the address in full in the present number of this journal. An interesting discussion arose Thursday morning on Mr. Wm. A. Butler's report for the committee on law reform, mainly addressed to the consideration of Judge Seymour D. Thompson's paper of last year on the abuses of habeas corpus. Judge Poland and others participated. This was the last of the exercises which we were privileged to hear, and we regretted that we could not listen to Mr. Simon Stern's paper on "The Prevention of Defective and Slipshod Legislation." We hope to have an opportunity to give the substance of it, and comment on it hereafter. In one of the notes in its current number the American Law Review says: "In his speech on the platform in the Chicago Democratic convention, General Butler pointed to the picture of Washington above him, and said in substance that the father of his country could not have passed the present and injury produced to the occupant of adjoining premises by the noise and vibration. The court below held that the defendant was negligent in erecting his building without leaving an open space between it and the plaintiff's building, but that the amount of noise and vibration did not justify an injunction, even against the working of the machinery in the night. The court below said: “As it regards the second head we incline to think that the respondent was negligent in not adopting a precaution that would obviously have tended to lessen the inconvenience that his business might otherwise produce to the occupants of the adjacent houses. One who erects a manufactory in a neighborhood used for dwellings should pay due regard to the maxim, Sic utere tuo ut alienum non lædas,' and suffer some abridgment of his own rights rather than cause unnecessary injury to others. Had the respondent, instead of building a partywall, left three inches between his printing house and the buildings on either side, sound could not have been directly transmitted, and he would at 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 on the nature of the injury, and the loss that will be occasioned by granting an injunction, which, the entire ground, and will compel the defendant though nominally confined to a single point, covers to close his present establishment and move elsewhere. The injured party is entitled to such compensation in damages as a jury may think fit to A correspondent criticises our citation of Oregon Reports in the American Reports as "Oreg.”— a criticism applicable also to this journal. He says we ought to write "Or.," and that we might as well write "New Y." for "New York." The comparison is of course sophistical, and if the writer had had as much experience in law editing as we have had he would have assumed that we have some reason for changing the form of citation. The reason is this: "Or." is sometimes misprinted "Cr." (Cranch), and even "Ar." (Ark.), and we have adopted the present form to make the citation unmistakable. award, but a chancellor ought not to intervene unless the evidence is so clear as not to admit of reasonable doubt. In this instance the testimony is conflicting, but the weight of the evidence appears to be that the noise which the bill describes as overpowering, intolerable, crashing,' and attended with a vibration which shakes the doors and windows, amounts to little more than the sound of the breakers on a distant beach, and that there is no vibration except that arising from the passage of vehicles through the street. This statement is to some extent fallacious, because the sound of the sea is associated with pleasing ideas, while that of the respondent's printing presses no doubt falls painfully on sensitive ears, which regard it as an unwarrantable disturbance of the quiet of the night. Such a difference is hardly a sufficient ground for the prohibition asked for in the bill, but we do not think that it should be dismissed, or that the complainant's case is so entirely groundless that he ought to bear the respondent's costs." The court above said: "A person who resides in the center of a large city must not expect to be surrounded by the stillness which prevails in a rural district. He must necessarily hear some of the noise, and occasionally feel slight vibrations, produced by the movement and labor of its people, and by the hum of its mechanical industries. The aid of a court of equity may be invoked to keep annoying sounds within reasonable limits. Every noise however is not a nuisance, nor when produced in the exercise of a lawful occupation should the strong arm of a chancellor necessarily be extended to suppress it. Under the conflicting evidence in this case, both of the noise and of the vibratory effect of the working of the presses, and in view of the great damage which the appellee would sustain, if he were enjoined against pursuing his business, we think the learned judge committed no error in refusing the injunction." See McKeon v. See, 51 N. Y. 300; S. C., 10 Am. Rep. 659. In Smith v. Baker, United States Circuit Court, S. D., New York, July 5, 1884, 18 Rep. 200, the defendant took his children when they had whooping cough to the plaintiff's boarding-house. Plaintiff's child took the disease, and boarders were kept away from plaintiff's house by the presence of the disease. Held, that defendant was liable to plaintiff for the damages caused. The court, Wheeler, J., said: "The defendant took his children when they had whooping-cough, a contagious disease, to the boarding-house of the plaintiff to board, and exposed her child and children of other boarders to it, who took it. The jury have found that this was done without exercising due care to prevent taking the disease into the boarding-house. She was put to expense, care and labor in consequence of her child having it, and boarders were kept away by the presence of it, whereby she lost profits. Words which import the charge of having a contagious distemper are, in themselves, actionable, because prudent people will avoid the company of persons having such distemper. Bac. Abr. Slander, B. 2 The carrying of persons infected with contagious disease along public thoroughfares so as to endanger the health of other travellers is indictable as a nuisance. Add. Torts, § 297; Rex v. Vantandillo, 4 M. & S. 73. Spreading contagious diseases among animals by negligently disposing of, or allowing to escape animals infected, is actionable. Add. Torts (Wood's ed.), 10, note; Ander on v. Buckton, 1 Stra. 192. A person sustaining an injury not common to others by a nuisance is entitled to an action. Co. Litt. 56a. Negligently impart ing such a disease to a person is clearly as great an injury as to impute the having it, and negligently affecting the health of persons injuriously as great a wrong as so affecting that of animals." See Boom v. Utica, 2 Barb. 104. In Welsh v. Village of Rutland, 56 Vt. 228, it was held that an incorporated village is not liable for damage resulting from the negligence of an engineer of its fire department in thawing out a hydrant, whereby water escaped, formed ice on the street, and a traveller falling on it was injured. Royce, C. J., said: "At common law it has been a settled principle ever since the leading case of Russell v. Men of Devon, 2 T. R. 667, decided by Lord Kenyon in 1788, that an individual cannot sustain an action against a political subdivision of the State based upon the misconduct or non-feasance of public officers. This rule of ex * * * emptions extends, necessarily, to municipal corpora * * tions so far as the reason of it applies, and that is so far as the acts done are governmental and political in their character, and solely for the public benefit and protection, or the negligence or nonfeasance are in respect of the same matters. * When however municipal corporations are not in the exercise of their purely governmental functions, for the sole and immediate benefit of the public, but are exercising as corporations private franchise powers and privileges, which belong to them for their immediate corporate benefit, or dealing with property held by them for their corporate advantage, gain or emolument, though inuring ultimately to the benefit of the general public, then they become liable for negligent exercise of such powers precisely as are individuals. Hill v. Boston, 122 Mass. 344; 102 id. 499; Eastman v. Meredith, 36 N. H. 284; Providence v. Clapp, 17 How. 161. So of the construction and maintenance of water works. Murphy v. Lowell, 124 Mass. 564; 122 id. 344; 102 id. 489; City of Dayton v. Pease, 4 Ohio St. 80; Gibson v. Preston, L. R., 5 Q. B. 219; Southcoat v. Stanley, 1 Hurlst. & N. 247; 2 id. 244; 4 id. 67. Of ditches or drains: Chicago v. Langlass, 66 Ill. 361; 44 id. 295. Of bridges or culverts, and in respect of structures which may obstruct the flow of natural water courses, and of the pollution of them by sewage and the like: Hill v. Boston, supra; Wheeler v. Worcester, 10 Allen, 591; 4 id. 41; Parker v. Lowell, 11 Gray, 353; Conrad v. Ithaca, 16 N. Y. 158; Merrifield v. Worcester, supra; Hazeltine v. Case, 46 Wis. 391; Hig. Waterc. 96; Wood Nuis., § 688. And public works and improvements generally: Lyme Regis v. Henley, 3 B. & Ad. 77; Nebraska City v. Campbell, 2 Black, 590; 1 id. 39; Dayton v. Pease, 4 Ohio St. 80; Bigelow v. Randolph, 14 Gray, 543; Child v. Boston, 4 Allen, 41. rule has been held to apply to the discharge of sewage or other noxious substances in such manner as to pollute the surface-water, and damage the property of individuals. Winn v. Rutland, 52 Vt. 481; Gale Eas. 308; Merrifield v. Lombard, 13 Allen, 16; Johnson v. Jordan, 2 Met. 234. And if a plan This adopted for public works must necessarily cause injury or peril to private persons or property, though executed with due care and skill, the law regards the execution of such a plan as negligence. 2 Thomp. Neg. 742; Haskell v. New Bedford, 108 Mass. 208; S. C., 30 Ind. 235; S. C., 35 Mich. 296; | S. C., 33 Ala. 116; S. C., 3 Comst. 463. The fire department and its service are of no benefit or profit to the village in its corporate capacity. They are not a source of income or profit to the village, but of expense, which is paid not out of any special receipts or fund, nor defrayed, even in part, by assessment upon particular persons or classes benefited, as in case of sewers or water works but from the general fund raised by taxation of all the inhabitants. The benefit accrues, not in any sense to the corporation as such, but directly to the public, and the members or employees of the department, whether acting as an independent, though subordinate organization, or under the direct authority of the general officers of the corporation, are, while acting in the line of duty prescribed for them, not agents of the corporation in the sense which renders it liable for their acts, but are in the discharge of an official duty as public officers. To such it is held in many cases that the doctrine of respondeat superior does not apply, and for their acts no liability can be imposed upon the corporation except by statute. Dill. Mun. Corp. (1st ed.), § 774; Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87; Maxmilian v. Mayor, 62 N. Y. 160; Smith v. Rochester, 76 id. 513; Jewett v. New Haven, 38 Conn. 368; Ogg v. Lansing, 35 Iowa, 495; Field v. Des Moines, 39 id. 575; Heller v. Sedalia, 53 Mo. 159; Howard v. San Francisco, 51 Cal. 52; Wilcox v. City of Chicago, Ill. S. C.; Edgerly v. Concord, 59 N. H. 78, 341. AMERICAN INSTITUTIONS AND LAWS. [Address before the American Bar Association at Saratoga Springs, August 21, 1884, by JOHN F. DILLON.] Mr. President and Gentlemen of the Association: The embarrassment of selecting a suitable topic for the annual address before your associatiou must have been felt by all who have previously undertaken it, and may easily be imagined by others. Shall it be a technical reading of some important statute, a discussion of some controverted question connected with the law or its administration, or shall it be more general in its scope and purpose? This seems to be settled by precedent, for I find that each of the addresses previously made on the like occasion, although directly relating to our profession, and imbued and tinctured with a legal flavor, has been of a general or quasi popular character. While I assent, without demur, to travel in the accustomed path, still the question recurs, what general topic shall be selected, and this, Mr. President and gentlemen, has been determined almost by accident. I found the invitation which brings me before you today awaiting my return from a recent first visit to the Pacific coast. In the long journey, some old notions were modifled; others were confirmed; and here and there some new vistas of our institutions and laws opened before me, and yielding to the vividuess and force of last impressions, I resolved to accept the invitation, and to address you upon the "General Character of American Institutions and Laws"; and to offer for your consideration some observations upon the present, and some speculations concerning the future condition of our jurisprudence. It cannot be inappropriate, I think, to discuss such a theme before members of the bar gathered together from every quarter, and almost every State of the Union. The laws of every enlightened nation and its corresponding judicial system ought to be, and to a great extent necessarily are, adapted to the traditions, manners, habits, and sentiments of its people, to its physical situation and character, to its political and economic condition and circumstances. If for example we should lay side by side the existing French and English systems of law and jurisprudence, and view then in the abstract as doctrinaires, we would probably have little hesitation in awarding the general superiority to the latter. Yet nothing of a speculative nature is more certain than that it would be difficult to conceive of a greater misfortune to each, than a complete exchange of their systems of law and jurisprudence. How far our system of law is wise and consonant with our institutions; how far the general laws of that system are adapted to the genius and wants and to the industrial, commercial, and social life of the people: and how far the system itself, or the general condition of the laws, admits or requires amendment or change, indeed complex and difficult, but nevertheless important, and it may be useful inquir ies. are In 1878, while holding a term of court at Omaha, I was one day pleased on entering the hotel to see the stately form and familiar face of the late Mr. Justice Clifford. He was accompanied by his wife, who with an affectionate fidelity, so well known, was throughout his public career as inseparable from him as his shadow, going with him whenever he journeyed as a justice in eyre, or settled down to the labors of a term 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 Portland to Washington and return. "Yes," he answered, "I am surprised at myself. In the course of my long judicial service, I was never out of what you call my orbit but once or twice, and then not far or long. But this time I yielded to the persuasions of Mrs. Clifford and the children, and I bave been to the Pacific coast and am so far on my return.' With judicial gravity he added: "Two things I wish to say. The first is that I have enjoyed every mile of the route. The second that I reproach myself with having been so long judge of the Supreme Court without an adequate conception of the vastness and grandeur of my country.' Chief Justice Marshall, according to the pleasant reminiscence recalled by the esteemed and deeply lamented Mr. Potter in his address before this association at its fourth meeting, assumed the knowledge which Mr. Justice Clifford eventually acquired by experience.* "In the simplicity of Marshall's day, when the only indulgence was a bottle of Madeira in bad weather, Chief Justice Marshall would, it is said, occasionally ask one of his associates to step to the window and see how the weather was, and when the judge was compelled to report that the sky was cloudless and the sun was shining brightly, Marshall would pronounce this judgment: Well, our jurisdiction is so extensive that I am sure it must be raining within it somewhere to-day, and I think on the whole, we will have our bottle of Madeira.'' Address of Mr. Clarkson N. Potter, published in the report of the fourth annual meeting of the American Bar Association, p. 193. |