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THE ALBANY LAW JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS. A
The Albany Law Journal.
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 ALBANY, JULY 5, 1884.
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 moveCURRENT TOPICS.
ment is to expect impossibilities. Moreover, it is
not certain that the absolutely perfect Code can be TOVERNOR HOADLY, of Ohio, at the Yale Law found until the book of the experience of society U School exercises, on the 24th instant, spoke has been closed and our civilization has entered thus of Codification : “No author will make upon its decadence. For as new emergencies arise the American Code. No one man's contribution, and new wants appear, any Code of human origin however valuable, will be final. This Code is will require repairs, amendment and enlargement. growing and will grow — will be evolved, not The Codes of Civil Procedure, though in force in built. And there is not so much difficulty in some of the States for a fourth of a century, have undefstanding how a hundred States, working not yet had their
final touches. What I hope and apart, can create the same Code, as how millions claim is that before many years a Code of rights as of men working separately, without newspapers well as remedie, the same in substance though or railroads or steamboats, each primarily bent very likely differing in detail, will be in force in on gaining daily bread, each hampered, cribbed, every American State, and within the limits of its confined by law or circumstances, limited even in powers be adopted by Federal legislation. Then, modes of speech and written expression by want of but not till then, do I believe the effervescing enereducation, can develop that complex structure we gies of legislation will heed the mandate, 'Peace, call a language. * Even if we admit that be still.' While such a Code may not be eternal, it the wisdom of this generation is not sufficient to will be durable, and with occasional readaptations to produce a Code flexible and capacious enough for the meet the progress of society, will furnish a precise, development of many generations, at least the re- definite, simple and comprehensible jurisprudence sults which have been reached can be digested, col- for many generations. That by removing doubts lated and stated in concise form, wiihout occupying and rendering law accessible, it will diminish litigamany volumes, to which the sanction of positive tion, ought not to be an objection, at least with law can be added by enactment. The practicability those who consider the interests of law of more of codification has been established beyond contro- consequence than those of lawyers." versy.
The merit of codification is that is renders the whole body of the law — before vague, uncertain, dispersed, scattered and almost beyond At the recent session of the Kentucky Bar Assoreach-simple, concise, clear, certain, compact and
ciation, at Louisville, a resolution was offered by easily accessible. We may fairly hope that not Mr. William Reinecke, and unanimously adopted, many generations, perhaps not many years, will providing that a committee be appointed to draft elapse before the book of the revised system, the and present to the next Legislature a bill for a comcomplete code of the new jurisprudence will take
mission to codify the laws. 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 In the recent death of Mr. William A. Beach, of indissolubly associated and which will preserve him New York, the bar has lost the greatest orator, so in everlasting remembrance, been adopted by the far as concerns the externals of oratory, that our General Assembly of New York. And when the profession possessed in this State. As a mere veto power is no longer used to check its progress speaker we think he has not left his equal. As
VOL. 30 - No. 1.
an extemporaneous rhetorician he had but one supe- the Law Times very wisely remarks: “Why applause rior, and that was Henry Hogeboom, whose should greet the statement that a judge ought not superior never lived. We gave a careful es- to wish to be popular we do not know. There are timate of Mr. Beach's oratory
in Three different kinds of popularity. The popularity which Great Advocates," 12 ALB. LAW JOUR. 4. a judge may lawfully covet is that which arises Great as Mr. Beach was as a jury lawyer, we re- from a dignified demeanor on the bench, absolute garded him as still greater before the judges on impartiality, courtesy to the bar, and amiability in pure questions of law. In his best moments, the society. Doubtless this will not make a judge popugrandeur and force of his manner, the elegance and lar as an actor or a singer is; but the respect and aptness of his rhetoric, and the ingenuity and co- regard which he earns nevertheless constitute popugency of his logic were well nigh irresistible. His larity. What the Master of the Rolls meant was, most celebrated trials were the Beecher-Tilton, the that a judge should not allow himself to be swayed Colonel North, the Cole-Hiscock, the Stokes, to the popular side in causes exciting much public and the Barnard Impeachment cases. Mr. Beach interest. This is a great danger, and one which we was a man of stern, proud and unpopular man- quite agree the judges cannot too carefully avoid.”' ners, but there was a vein of tenderness in his nature all the more remarkable for the contrast
Lord Eldon, who was famous for misquoting Latin, with his powerful and forbidding traits. The
seems to have a rival in the person of a western writer of these lines will never forget the words of
judge, who says in recent case, “I should not hesisympathy and encouragement uttered by Mr. Beach tate to say with emphatic brevity that the matters of to him when the writer was young, and much this suit have long been stare decisis in this court." needed such fostering. Mr. Beach lived a long This is of course a mere lapsus lingua. Several of the life, full of hard work, great triumphs, melancholy western judges have a bad habit of omitting "that." disappointments, and shadowed by some grave For example they say : “ This was immaterial for faults; but he will be remembered with admiration the reason the same matter had been proved," etc. for his talents and public services by our profession, This is a very slovenly way of writing, and it seems and with that charity for his failings which we all to us that it ought to be reformed. A justice of need, whether our sins have been found out or not.
the Federal Supreme Court is reported as using
“ replevin” as a verb, and the use of “guarantee The lord mayor of London has been entertaining
as a noun is common. These are trivial faults, but her majesty's judges at dinner. After dinner (of they are worth correcting. course no sane man could have done it before dinner) the lord chancellor spoke highly of the house of
We note a great improvement in the editing lords as a legal tribunal. “Appeals were few,” said of the Virginia Reports, under Mr. Hansbrough. he, but he did not give the true reason. We desire to Formerly they were padded with tedious statespeak well of dignitaries, but we feel constrained ments, and the head-notes were among the worst to admit that the house of lords is the most tedious in this country. We take up the current volume and inconclusive court in existence. The only time with a sense of relief. There are two or three when we contemplate the capabilities of dynamite other reporters to whom we would commend this with any approval is when we are condemned to
example if we dared. read the long, rambling, slipshod, tautological, cumulative opinions of three or four law lords, which are supposed to set the law for Great Ohio is the most grasping State in the Union. Britain. How infinitely inferior in every respect Not content with having the presidency and most they are to the past or current opinions of our of the best offices nearly all the time, it now wants Federal Supreme Court. (Always excepting Mr. to publish its own judicial reports and deprive this Justice Clifford's.)
city of that business. The Ohio Law Journal says:
“The contract of the State with Banks & Bros. of On the same occasion the master of the rolls gave New York, for the publication of the decisions of utterance to some novel sentiments. For instance, the Supreme Court and Supreme Court Commission he said that the judges are the only true law re- of Ohio, expired June 23. It is to be hoped this formers; that law could not be quick or cheap or contract will in future be given to an Ohio firm. brought to every man's door; and if it could, it we cannot see why this work cannot be done in would be the greatest misfortune that could happen Ohio at least as well, and much more conveniently to the country; and that the judges ought not to be and properly.” popular. In the midst of this nonsense he was inspired to say, “there was an old institution Every profession ought to have a representative judge with a jury — that had worked well for cen- poet, and ours seems to have one in Mr. F. J. Par. turies, and he thought that that was a safer tribunal menter, of Troy, whose graceful and witty verses to which to trust a question either of personal char- have more than once adorned these columns. We acter or mercantile law than to any judge alone." call attention to his touching poem in another colIn regard to his remark on the popularity of judges, umn.
NOTES OF CASES.
thing the result of which is that the damage happens
to your neighbor, provided you act without negliN Whalley V. Lancashire & Yorkshire Ry. Co., gence, that is not your fault. Nield v. London
Court of Appeal, March 31, 1884, 50 L. T. Rep. and Northwestern Railway Company, L. R., 10 472, defendants were owners of a railway embank- Ex. 4, and Rex v. Commissioners of Sewers for Pagment which was built on sloping ground, and so ham, 8 B. & C. 355, are cases of that kind.
We now situated that the land on one side of the embank- come to the case where something is in existence ment was on a higher level than that on the other which is injurious to your property, and the quesside. Owing to an extraordinary rain-fall the land tion is whether you can take active measures to cure on the higher level was flooded, and a quantity of that injury when taking those measures will cause water was collected, which pressed against the rail- misfortune to your neighbor. It has been held that way embankment so as to endanger its safety. | if a person brings something on to his own land and Defendants, in order to preserve their embankment, does not take precautions to keep it safe, he is liacut openings through it and let the water run out, ble for damage which it causes although he does no the result of which was that the plaintiff's land second act. For instance, if you bring water on (which was on the opposite side of the railway from your land and dam it up there, you are liable for where the water was collected, and on a lower level) injury caused by its escaping, because you brought was flooded and his crops injured. Held, that they it. It is suggested, that if you had not brought were liable in damages. Brett, M. R., said: “The the dangerous thing on to your own land, there proposition to be considered is this: When the water would be a difference, and that if you have not by an extraordinary misfortune rested against the brought it on to your own land, and it passes over defendants' embankment, had they a right to take to your neighbor's land and causes injury, you are active measures to get rid of it, when the necessary
not liable. The question then is this: Though you effect of those measures must be to injure their have not brought the danger on to your own propneighbor's land ? Several cases have been cited, erty, has come there; it was a danger common to and it is for us to endeavor to extract the true prin- you and your neighbor; but the danger to him has ciple from them. In some cases land is so situated ceased, while the mischief has been done to you. that operations carried on by neighbors must injure Can you under these circumstances do something in it. That is a natural defect, and to hold that the order to transfer the misfortune from yourself to neighbor cannot use his own land in a natural and him? To hold that you could, would be contrary to reasonable way would be to transfer the defect to the the well-known maxim, Sic utere tuo ut alienum non neighbor's land. This is so in the cases relating to ledas ; a person must not elect to use his land in mines. The lower mine has this defect that unless such a way as to injure his neighbor. That would the owner can prevent his neighbor from using have been exactly this case if there would have been the upper mine in a natural and reasonable no danger of injury to the plaintiff in the event of way, he must suffer damage. If the property is the defendants not having made the openings in the used in a natural and reasonable way, and by embankment; but here the case is a little more comreason of a defect in other property, that other plicated, for it is said that this water would have property is damaged, then, unless the owner of the gone on to the plaintiff's land in any event; but it last-mentioned property can prevent the injury by appears that if the defendants had let the water transferring the defect, he must suffer the damage. percolate through the embankment there would That is like the case of Menzies v. Lord Breadalbane, have been no injury caused to the plaintiff, or at all 3 Bligh (N. S.), 414. Where, if a river is left in its events much less. This shows that the defendants natural course, it must keep eating away the bank have done something to preserve their property and or will occasionally flood the land, there, if the transfer the injury to the plaintiff, and therefore I owner of the land does something which must cause am of opinion that they are liable. It is said that damage to his neighbor—that is, if he turns the the defendants only used their railway as a railway, stream—he is doing something in order to cure a de- which amounts to the argument that the plaintiff fect in his own property, the effect of which will be had land with the defect of being near a railway, to injure his neighbor's property, and he is not and that it was as if the smoke from the railway entitled to do that. The mining cases which have were to spoil the trees and flowers in a neighboring been referred to and the case of Menzies v. Lord Bread-garden. But it is impossible to say that to cut holes albane shows that a person has no right to cure a through the embankment is the ordinary use of a natural defect in his own property by transferring it railway; it seems to me that it is quite the contrary. to the property of his neighbor. Then there are I think therefore that the case does not come within two other classes of cases. Where an extraordinary that proposition, but is governed by the more gendanger threatens you and your neighbour, or it may eral principle. An extraordinary misfortune fell be, threatens you only, you have a right to defend upon the defendants, and to get rid of it they did yourself beforehand. You prevent the injury by pro- something which injured the plaintiff, and theretecting yourself, and the consequence is that the in-fore they are liable, and the judgment of Day, J., is jury falls upon your neighbor. If, in order to prevent right, and ought to be affirmed. I wish to add that damage with which you are threatened you do som I do not adopt Mr. Gully's distinction between
property which is underground and property which RESTRICTIVE COVENANTS IN A CONVEYis on the surface of the earth. As to the case of the
ANCE OF REAL ESTATE.* squib (Scott v. Shepherd, 1 Smith L. C.477, 7th ed.), my impression is that it can only be upheld on the
THE subject will be treated under two divisions: ground that the squib was an object of danger to all, and was never in the possession of any one. I think this would apply to the case there suggested mode of its use and enjoyment.
of real estate, and, second, those which restrict the by Gould, J., of a squib thrown into a coach full of
First. As to restrictions on alienation. company." To the same effect, Little Rock and Fort
It will be well at the outset to take a moment's Smith Ry. Co. v. Chapman, 39 Ark. 463; S. C., 43
look at that system of English tenures prevailing Am. Rep. 280; contra, Cairo and Vincennes R. Co. v.
under the feudal polity viewed with especial referStevens, 73 Ind. 278; S. C., 38 Am. Rep. 144.
ence 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 A curious point of evidence of opinions owner - who, in feudal notions, was never but a arose in Doe v. Roe, 32 Hun, 628.
tenant. 2 Bl. Com. 57. It was tenure that firmly action of slander for imputing
unchas- bound together the lord and vassal; and alienation tity to an unmarried
The defend- would have cut this bond. The general restraint ant pleaded in mitigation an increase in the had a reason for its existence; it was the peculiar size and a change in the physical appearance of the means which preserved the primitive vigor of that plaintiff, such as induced him to believe that she rigorous institution. 4 Kent Com. 443, 12th ed. Nor was pregnant. Upon the trial a woman who had is there the slightest difference between the legal basis borne children, and had had an opportunity to see which to-day allows a general restraint on alienation the plaintiff, was asked whether she appeared as and that which might well have authorized it in women do when they are pregnant, as to her phys- feudal times. A reversion or possibility of reverter ical appearance. This was excluded.
always remained in the feoffor. Coke upon Litt., Learned, P. J., said “in People v. Eastwood, 14 N. $ 360; 1 Smith's Lcad. Cas. 179, 7th Am. ed. The Y. 562, it was held to be proper to ask for the proposition still holds true that wherever a reversion opinion of a witness whether a person was drunk, is retained a general restraint on alienation in favor because the matter of fact 'is better determined by of its owner is valid. Ruggles, Ch. J., De Peyster v. the direct answer of those who have seen him than Michael, 6 N. Y. 491. Restriction on alienation, thereby their description of his conduct.' So held of the fore, was not only the policy of feudalism, but a logical opinion of a witness that the grasp of one man by reason was beneath it. Still, it met with general another was friendly. Blake v. People, 73 N. Y. | disfavor, and the famous scheme of subinfeudation 586. The reason of these decisions must be that followed — a measure bred of necessity to accomthe appearance consists of many particulars, of plish indirectly what could not be done directly which some would be very difficult of description. without the lord's consent. 4 Kent Com. 444, 445, Furthermore, in this present case, the evidence was
12th ed. Subinfeudation hurt the interests of the offered not merely in justification, but in mitigation powerful barons of England, and against it they of damages. Now if the appearance of the plaint- opposed the noted statute of Quia Emptores, enacted iff, from any cause, was such that women, who had in the reign of Edward I. While the avowed purhad experience, would testify that she appeared like pose of that statute was to promote the interests of a pregnant woman, physically, the testimony cer- the lord (vide its preamble), the ultimate result, as tainly was important to mitigate the damages to
is well known, has been different and far more which the defendant might be subjected. And if salutary than was ever contemplated by its ambitious the plaintiff insists that the witnesses should have but short-sighted framers. Its great work was to stated the facts in detail, in order that the jury abolish that tenure spoken of above, and to cause might judge whether plaintiff's appearance was like
the feoffee to take as a purchaser holding under his that of a pregnant woman, it is obvious that no de- feoffor's lord or the chief lord of the fee. The right scription of enlargement of size and the like would to alien freely was thereby first acquired, and subinconvey an accurate idea of the plaintiff's whole ap
feudation was no longer. 1 Washb. R. P. 54,
4th ed. pearance. We think then that at least in this
These restrictions are, it is true, usually imposed where the defendant sought to mitigate the damages by showing such an excuse for his utterances
under the form of conditions. It should be observed, (even admitting that they were untrue), he should
however, that while there is a wide and well known
distinction between a covenant and a condition, and have been permitted to show, by the opinion of their respective remedies for breach, yet a void competent witnesses, the appearance of the plaintiff restriction upon alienation imposed by way of conat the time in question. Similar questions were put dition would also be void if imposed by way of to other witnesses who had had similar experience covenant and vice versa. Cruise R. P., tit. xiii, ch. to fit them to express opinions; one especially who | 1, $ 29, N. 1, Gr. ed.; Platt Covenants, 569. The was a nurse and mid-wife."
* First Prize Essay, Columbia College Law School, 1883.