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The Albany
Albany Law Journal.

ALBANY, JULY 5, 1884.



YOVERNOR HOADLY, of Ohio, at the Yale Law School exercises, on the 24th instant, spoke thus of Codification: "No author will make the American Code. No one man's contribution, however valuable, will be final. This Code is growing and will grow will be evolved, not built. And there is not so much difficulty in understanding how a hundred States, working apart, can create the same Code, as how millions of men working separately, without newspapers or railroads or steamboats, each primarily bent on gaining daily bread, each hampered, cribbed, confined by law or circumstances, limited even in modes of speech and written expression by want of education, can develop that complex structure we call a language. * * * Even if we admit that the wisdom of this generation is not sufficient to produce a Code flexible and capacious enough for the development of many generations, at least the results which have been reached can be digested, collated and stated in concise form, without occupying many volumes, to which the sanction of positive law can be added by enactment. The practicability of codification has been established beyond controversy. The merit of codification is that is renders the whole body of the law - before vague, uncertain, dispersed, scattered and almost beyond reach-simple, concise, clear, certain, compact and easily accessible. We may fairly hope that not many generations, perhaps not many years, will elapse before the book of the revised system, the complete code of the new jurisprudence will take the place of the antiquated and worn out common law.* * * Twice has this great work, with which the honored name of David Dudley Field is indissolubly associated and which will preserve him in everlasting remembrance, been adopted by the General Assembly of New York. And when the veto power is no longer used to check its progress VOL. 30 No. 1.

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and New York has given it a fair trial, not many years can elapse before its adoption in substantially the same form may be looked for in at least the majority of the States. I do not claim finality for Mr. Field's Code, or any other form of words. To adopt the perfect Code at the first or second movement is to expect impossibilities. Moreover, it is not certain that the absolutely perfect Code can be found until the book of the experience of society has been closed and our civilization has entered upon its decadence. For as new emergencies arise and new wants appear, any Code of human origin will require repairs, amendment and enlargement. The Codes of Civil Procedure, though in force in some of the States for a fourth of a century, have not yet had their final touches. What I hope and claim is that before many years a Code of rights as well as remedies, the same in substance though very likely differing in detail, will be in force in every American State, and within the limits of its powers be adopted by Federal legislation. Then, but not till then, do I believe the effervescing energies of legislation will heed the mandate, 'Peace, be still.' While such a Code may not be eternal, it will be durable, and with occasional readaptations to meet the progress of society, will furnish a precise, definite, simple and comprehensible jurisprudence for many generations. That by removing doubts and rendering law accessible, it will diminish litigation, ought not to be an objection, at least with those who consider the interests of law of more consequence than those of lawyers."

At the recent session of the Kentucky Bar Association, at Louisville, a resolution was offered by Mr. William Reinecke, and unanimously adopted, providing that a committee be appointed to draft and present to the next Legislature a bill for a commission to codify the laws.

In the recent death of Mr. William A. Beach, of New York, the bar has lost the greatest orator, so far as concerns the externals of oratory, that our profession possessed in this State. As a mere speaker we think he has not left his equal. As

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an extemporaneous rhetorician he had but one superior, and that was Henry Hogeboom, whose superior [never lived. We gave a careful estimate of Mr. Beach's oratory in "Three Great Advocates," 12 ALB. LAW JOUR. 4. Great as Mr. Beach was as a jury lawyer, we regarded him as still greater before the judges on pure questions of law. In his best moments, the grandeur and force of his manner, the elegance and aptness of his rhetoric, and the ingenuity and cogency of his logic were well nigh irresistible. His most celebrated trials were the Beecher-Tilton, the Colonel North, the Cole-Hiscock, the Stokes, and the Barnard Impeachment cases. Mr. Beach was a man of stern, proud and unpopular manners, but there was a vein of tenderness in his nature all the more remarkable for the contrast with his powerful and forbidding traits. The writer of these lines will never forget the words of sympathy and encouragement uttered by Mr. Beach to him when the writer was young, and much needed such fostering. Mr. Beach lived a long life, full of hard work, great triumphs, melancholy disappointments, and shadowed by some grave faults; but he will be remembered with admiration for his talents and public services by our profession, and with that charity for his failings which we all need, whether our sins have been found out or not.

The lord mayor of London has been entertaining her majesty's judges at dinner. After dinner (of course no sane man could have done it before dinner) the lord chancellor spoke highly of the house of lords as a legal tribunal. "Appeals were few," said he, but he did not give the true reason. We desire to speak well of dignitaries, but we feel constrained to admit that the house of lords is the most tedious and inconclusive court in existence. The only time when we contemplate the capabilities of dynamite with any approval is when we are condemned to read the long, rambling, slipshod, tautological, cumulative opinions of three or four law lords, which are supposed to set the law for Great Britain. How infinitely inferior in every respect they are to the past or current opinions of our Federal Supreme Court. (Always excepting Mr. Justice Clifford's.)

On the same occasion the master of the rolls gave utterance to some novel sentiments. For instance, he said that the judges are the only true law reformers; that law could not be quick or cheap or brought to every man's door; and if it could, it would be the greatest misfortune that could happen to the country; and that the judges ought not to be popular. In the midst of this nonsense he was inspired to say, "there was an old institution -a judge with a jury — that had worked well for centuries, and he thought that that was a safer tribunal to which to trust a question either of personal character or mercantile law than to any judge alone." In regard to his remark on the popularity of judges,

the Law Times very wisely remarks: "Why applause should greet the statement that a judge ought not to wish to be popular we do not know. There are different kinds of popularity. The popularity which a judge may lawfully covet is that which arises from a dignified demeanor on the bench, absolute impartiality, courtesy to the bar, and amiability in society. Doubtless this will not make a judge popular as an actor or a singer is; but the respect and regard which he earns nevertheless constitute popularity. What the Master of the Rolls meant was, that a judge should not allow himself to be swayed to the popular side in causes exciting much public interest. This is a great danger, and one which we quite agree the judges cannot too carefully avoid."

Lord Eldon, who was famous for misquoting Latin, seems to have a rival in the person of a western judge, who says in a recent case, "I should not hesitate to say with emphatic brevity that the matters of this suit have long been stare decisis in this court." This is of course a mere lapsus lingua. Several of the western judges have a bad habit of omitting "that." For example they say: "This was immaterial for the reason the same matter had been proved," etc. This is a very slovenly way of writing, and it seems to us that it ought to be reformed. A justice of the Federal Supreme Court is reported as using "replevin" as a verb, and the use of "guarantee These are trivial faults, but as a noun is common. they are worth correcting.


We note a great improvement in the editing of the Virginia Reports, under Mr. Hansbrough. Formerly they were padded with tedious statements, and the head-notes were among the worst in this country. We take up the current volume with a sense of relief. There are two or three other reporters to whom we would commend this example if we dared.

Ohio is the most grasping State in the Union. Not content with having the presidency and most of the best offices nearly all the time, it now wants to publish its own judicial reports and deprive this city of that business. The Ohio Law Journal says: "The contract of the State with Banks & Bros. of New York, for the publication of the decisions of the Supreme Court and Supreme Court Commission of Ohio, expired June 23. It is to be hoped this contract will in future be given to an Ohio firm. We cannot see why this work cannot be done in Ohio at least as well, and much more conveniently and properly."

Every profession ought to have a representative poet, and ours seems to have one in Mr. F. J. Parmenter, of Troy, whose graceful and witty verses have more than once adorned these columns. We call attention to his touching poem in another column.

N Whalley v. Lancashire & Yorkshire Ry. Co., Court of Appeal, March 31, 1884, 50 L. T. Rep. 472, defendants were owners of a railway embankment which was built on sloping ground, and so situated that the land on one side of the embankment was on a higher level than that on the other side. Owing to an extraordinary rain-fall the land on the higher level was flooded, and a quantity of water was collected, which pressed against the railway embankment so as to endanger its safety. Defendants, in order to preserve their embankment, cut openings through it and let the water run out, the result of which was that the plaintiff's land (which was on the opposite side of the railway from where the water was collected, and on a lower level) was flooded and his crops injured. Held, that they were liable in damages. Brett, M. R., said: "The proposition to be considered is this: When the water by an extraordinary misfortune rested against the defendants' embankment, had they a right to take active measures to get rid of it, when the necessary effect of those measures must be to injure their neighbor's land? Several cases have been cited, and it is for us to endeavor to extract the true principle from them. In some cases land is so situated that operations carried on by neighbors must injure it. That is a natural defect, and to hold that the neighbor cannot use his own land in a natural and reasonable way would be to transfer the defect to the neighbor's land. This is so in the cases relating to mines. The lower mine has this defect that unless the owner can prevent his neighbor from using the upper mine in a natural and reasonable way, he must suffer damage. If the property is used in a natural and reasonable way, and by reason of a defect in other property, that other property is damaged, then, unless the owner of the last-mentioned property can prevent the injury by transferring the defect, he must suffer the damage. That is like the case of Menzies v. Lord Breadalbane, 3 Bligh (N. S.), 414. Where, if a river is left in its natural course, it must keep eating away the bank or will occasionally flood the land, there, if the owner of the land does something which must cause damage to his neighbor-that is, if he turns the stream-he is doing something in order to cure a defect in his own property, the effect of which will be to injure his neighbor's property, and he is not entitled to do that. The mining cases which have been referred to and the case of Menzies v. Lord Bread-garden. But it is impossible to say that to cut holes through the embankment is the ordinary use of a railway; it seems to me that it is quite the contrary. I think therefore that the case does not come within that proposition, but is governed by the more general principle. An extraordinary misfortune fell upon the defendants, and to get rid of it they did something which injured the plaintiff, and therefore they are liable, and the judgment of Day, J., is right, and ought to be affirmed. I wish to add that I do not adopt Mr. Gully's distinction between

thing the result of which is that the damage happen to your neighbor, provided you act without negli gence, that is not your fault. Nield v. London and Northwestern Railway Company, L. R., 11 Ex. 4, and Rex v. Commissioners of Sewers for Pag ham, 8 B. & C. 355, are cases of that kind. We now come to the case where something is in existence which is injurious to your property, and the ques tion is whether you can take active measures to cure that injury when taking those measures will cause misfortune to your neighbor. It has been held that if a person brings something on to his own land and does not take precautions to keep it safe, he is liable for damage which it causes although he does no second act. For instance, if you bring water on your land and dam it up there, you are liable for injury caused by its escaping, because you brought it. It is suggested, that if you had not brought the dangerous thing on to your own land, there would be a difference, and that if you have not brought it on to your own land, and it passes over to your neighbor's land and causes injury, you are not liable. The question then is this: Though you have not brought the danger on to your own property, it has come there; it was a danger common to you and your neighbor; but the danger to him has ceased, while the mischief has been done to you. Can you under these circumstances do something in order to transfer the misfortune from yourself to him? To hold that you could, would be contrary to the well-known maxim, Sic utere tuo ut alienum non ladas; a person must not elect to use his land in such a way as to injure his neighbor. That would have been exactly this case if there would have been no danger of injury to the plaintiff in the event of the defendants not having made the openings in the embankment; but here the case is a little more complicated, for it is said that this water would have gone on to the plaintiff's land in any event; but it appears that if the defendants had let the water percolate through the embankment there would have been no injury caused to the plaintiff, or at all events much less. This shows that the defendants have done something to preserve their property and transfer the injury to the plaintiff, and therefore I am of opinion that they are liable. It is said that the defendants only used their railway as a railway, which amounts to the argument that the plaintiff had land with the defect of being near a railway, and that it was as if the smoke from the railway were to spoil the trees and flowers in a neighboring


albane shows that a person has no right to cure a natural defect in his own property by transferring it to the property of his neighbor. Then there are two other classes of cases. Where an extraordinary danger threatens you and your neighbour, or it may be, threatens you only, you have a right to defend yourself beforehand. You prevent the injury by protecting yourself, and the consequence is that the injury falls upon your neighbor. If, in order to prevent damage with which you are threatened you do some

property which is underground and property which
is on the surface of the earth. As to the case of the
squib (Scott v. Shepherd, 1 Smith L. C. 477, 7th ed.),
my impression is that it can only be upheld on the
ground that the squib was an object of danger to
all, and was never in the possession of any one.
think this would apply to the case there suggested
by Gould, J., of a squib thrown into a coach full of
company." To the same effect, Little Rock and Fort
Smith Ry. Co. v. Chapman, 39 Ark. 463; S. C., 43
Am. Rep. 280; contra, Cairo and Vincennes R. Co. v.
Stevens, 73 Ind. 278; S. C., 38 Am. Rep. 144.


■ an

A curious point of evidence of opinions
arose in Doe v. Roe, 32 Hun, 628.
This was
action of slander for imputing unchas-
tity to an unmarried woman. The defend-
ant pleaded in mitigation an increase in the
size and a change in the physical appearance of the
plaintiff, such as induced him to believe that she
was pregnant. Upon the trial a woman who had
borne children, and had had an opportunity to see
the plaintiff, was asked whether she appeared as
women do when they are pregnant, as to her phys-
ical appearance. This was excluded. Held error.
Learned, P. J., said "in People v. Eastwood, 14 N.
Y. 562, it was held to be proper to ask for the
opinion of a witness whether a person was drunk,
because the matter of fact 'is better determined by
the direct answer of those who have seen him than
by their description of his conduct.' So held of the
opinion of a witness that the grasp of one man by
another was friendly. Blake v. People, 73 N. Y.
586. The reason of these decisions must be that
the appearance consists of many particulars, of
which some would be very difficult of description.
Furthermore, in this present case, the evidence was
offered not merely in justification, but in mitigation
of damages. Now if the appearance of the plaint-
iff, from any cause, was such that women, who had
had experience, would testify that she appeared like
a pregnant woman, physically, the testimony cer-
tainly was important to mitigate the damages to
which the defendant might be subjected. And if
the plaintiff insists that the witnesses should have
stated the facts in detail, in order that the jury
might judge whether plaintiff's appearance was like
that of a pregnant woman, it is obvious that no
scription of enlargement of size and the like would
convey an accurate idea of the plaintiff's whole ap-
pearance. We think then that at least in this case,
where the defendant sought to mitigate the dam-
ages by showing such an excuse for his utterances
(even admitting that they were untrue), he should
have been permitted to show, by the opinion of
competent witnesses, the appearance of the plaintiff
at the time in question. Similar questions were put
to other witnesses who had had similar experience
to fit them to express opinions; one especially who
was a nurse and mid-wife."


THE subject will be treated under two divisions: first, covenants that restrict the free alienation of real estate, and, second, those which restrict the mode of its use and enjoyment.

First. As to restrictions on alienation.


It will be well at the outset to take a moment's look at that system of English tenures prevailing under the feudal polity viewed with especial reference to our subject. The genius of that system required, as one great factor in the scheme, that landed property be not sold at the whim of the who, in feudal notions, was never but a tenant. 2 Bl. Com. 57. It was tenure that firmly bound together the lord and vassal; and alienation would have cut this bond. The general restraint had a reason for its existence; it was the peculiar means which preserved the primitive vigor of that rigorous institution. 4 Kent Com. 443, 12th ed. Nor is there the slightest difference between the legal basis which to-day allows a general restraint on alienation and that which might well have authorized it in feudal times. A reversion or possibility of reverter always remained in the feoffor. Coke upon Litt., § 360; 1 Smith's Lead. Cas. 179, 7th Am. ed. The proposition still holds true that wherever a reversion is retained a general restraint on alienation in favor of its owner is valid. Ruggles, Ch. J., De Peyster v. Michael, 6 N. Y. 491. Restriction on alienation, therefore, was not only the policy of feudalism, but a logical reason was beneath it. Still, it met with general disfavor, and the famous scheme of subinfeudation followed a measure bred of necessity to accomplish indirectly what could not be done directly without the lord's consent. 4 Kent Com. 444, 445, 12th ed. Subinfeudation hurt the interests of the powerful barons of England, and against it they opposed the noted statute of Quia Emptores, enacted in the reign of Edward I. While the avowed purpose of that statute was to promote the interests of the lord (vide its preamble), the ultimate result, as is well known, has been different and far more salutary than was ever contemplated by its ambitious but short-sighted framers. Its great work was to abolish that tenure spoken of above, and to cause the feoffee to take as a purchaser holding under his de-feoffor's lord or the chief lord of the fee. The right to alien freely was thereby first acquired, and subinfeudation was no longer. 1 Washb. R. P. 54,

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4th ed.

These restrictions are, it is true, usually imposed under the form of conditions. It should be observed, however, that while there is a wide and well known distinction between a covenant and a condition, and their respective remedies for breach, yet a void restriction upon alienation imposed by way of condition would also be void if imposed by way of covenant and vice versa. Cruise R. P., tit. xiii, ch. 1, § 29, N. 1, Gr. ed.; Platt Covenants, 569. The

* First Prize Essay, Columbia College Law School, 1883.

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