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In the present condition of the suit, however, we are compelled to dismiss the writ for want of jurisdiction.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF NEW JERSEY. COURT OF
ERRORS AND APPEALS, NEW JERSEY.*
ACTION.

Tort for taking clay from pit by vendee under parol contract.-An action in tort will not lie against a person who takes clay from an open pit, such person being in possession of the premises under a parol agreement to purchase, and with which agreement he failed to comply. (The case of Freeman v. Headley, 4 Vroom, 523, distinguished.) Beattie v. Connolly.

CORPORATION.

Public corporation not liable for act done ultra vires. -A public corporation cannot be sued for the damages resulting from an act which is ultra vires. A road board, having the power, widened a public avenue, and in so doing, embraced the mill-dam of the plaintiff; took down such dam, and in lieu of it built another dam outside of the area of the highway and on land owned by a third party; such dam so constructed, having given way, the plaintiff was deprived, for some time, of the use of the water in his pond. Held, that an action for such damage would not lie, as the building of the substituted dam was ultra vires. Wheeler v. Essex Public Road Board. (Court of Errors and Appeal.)

COVENANT.

For benefit of third parties: when enforceable.-Although a deed is inter partes, a covenant therein made with a third person may be enforced by such third person by suit, if it clearly appears by the instrument that it was the intention to confer such right. The mere presence, in such deed, of a covenant with a third person, will not, as has been held by many cases, be evincive, by its own force, of such intention. National Union Bank at Dover v. Segur.

FOREIGN JUDGMENT.

Judgment in courts of another State when not impeachable.-A judgment rendered in another State, when sued on here, can be impeached only on the ground that the adjudging court did not have jurisdiction over the person of the defendant or the subject-matter. If the defendant was present in the foreign State when proceedings were begun, and process was served upon him, no irregularity, in such service, unless such as deprived it of all citatory effect, can be set up against the judgment issuing thereon in a suit on such judgment in this State. Jardine v. Reichert.

NEGLIGENCE.

1. When question for jury.—In actions for personal injuries, caused by railroad trains, where there are doubtful and qualifying circumstances, the question of negligence or want of proper care must be left to the jury. Bonnell v. The Del., Lack. and Western R. R. Co.

2. Contributory negligence: when necessary to authorize nonsuit.-The plaintiff will not be nonsuited unless, upon his own showing, he is guilty of negligence which contributed to the injury; nor will the verdict be set aside unless the jury are clearly wrong in their conclusion. Ib.

* To appear in 10 Vroom's (39 N. J. Law) Reports.

3. What does not constitute negligence in law.-Where a person, as he approaches a railroad crossing, with a single track and infrequent trains, sees a train with the rear toward him, going, apparently, in an opposite direction, and is deceived by appearances, and his attention distracted by the actions of persons at a distance attempting to warn him of his danger from the train which is backing rapidly and quietly toward him, aud a wagon has crossed just before him, it will be left to the jury to say whether there is want of proper care. Ib.

PROXIMATE CAUSE.

1. Fire communicated from adjoining lands.-Where one, by negligence or misconduct, occasions a fire on his own premises, or the premises of a third person, which spreads from thence to the plaintiff's property, and causes an injury, the injury is not, as a legal proposition, too far removed from his negligent act to involve him in legal liability. (Ryan v. N. Y. C. R. R. Co., 35 N. Y. 210, and Penn. R. R. Co. v. Kerr, 62 Peun. 353, disapproved.) Del., Lack. and West. R. R. Co. v. Salmon. (Court of Errors and Appeals.)

2. Liability for results of negligent act: when question of causation is for jury.—In actions for injuries result

ing from fire originating through the defendant's negligence, and communicated to the plaintiff's property, where distance, intervening objects, or the manner in which the fire was communicated, present the question whether the plaintiff's loss is attributable to the defendant's negligent act, and there be no intervening agency apparent which may stand, in law, as the immediate cause of the injury, the question is one for the jury whether, under all the conditions under which the loss happened, the destruction of the plaintiff's property was a result that might reasonably have been expected - though not, in fact, anticipatedfrom the defendant's negligent act. Ib.

RAILROAD.

1. Duty of railroad company to keep lands free from combustibles.-A railroad company is bound to keep its track free from combustible matter, whereby fire ing property. Negligence in suffering combustible may be communicated from its locomotives to adjoinmatter to accumulate on its right of way, so as to locomotives through it, will make the company liable make it dangerous to adjoining property to run its for injuries from fires originating in such combustible matter from coals dropped or thrown from its locomotives, and carried thereby to adjoining property, though there be no allegation that the engine from which the coals were dropped or thrown was improperly constructed or driven. Del., Lack. and West. R. R. Co. v. Salmon (Court of Errors and Appeals).

2. Duty of adjoining owner as to combustibles on lands.-The owner of lands adjacent to a railroad is not obliged to keep his lands contiguous to the track free from leaves or other combustible matter coming or being thereon. He may cultivate, build upon and use his lands, or leave them in a state of nature, as he may see proper, and will take upon himself no other risks than such as are incident to the operation of the road with proper care by the company, and will neverarising from the negligence of the company in the theless be entitled to damages for injuries by fires construction or management of its locomotives, or in the condition in which its track is suffered to remain. Ib.

3. Railroad company liable for setting fire upon ad

joining lands without reference to manner of acquiring right of way. Nor will such owner be barred of recovery of damages for injury by fires caused by the negligence of the company, by the fact that the company acquired the right of way through his land by grant or condemnation. A conveyance of land for railroad purposes, or an assessment of the value of lands taken, and damages under proceedings to condemn, only bars the recovery of such damages as naturally and necessarily arise from the use of the premises for the authorized purpose, and will not bar the recovery of damages for injuries arising from an unskillful or improper construction, or negligence in operating the road. For such damages the remedy by action remains, notwithstanding the conveyance or condemnation. By a provision in the charter of a railroad company, its road was declared to be a public highway for the use of steam engines and cars propelled by steam engines only. Held, that the company was liable for injuries from fire thrown by the locomotive of another company, which the defendants suffered and permitted to be run on the road without any spark-arrester on it, its defective condition being known to the defendants' train dispatcher, who exercised no supervision over it. Ib.

REAL ESTATE.

lien for services rendered the defendant in a subsequent suit involving the same property. Clark v. President, etc., Nat. Metrop. Bank, p. 249. The presentment of a check by the holder the day following its receipt is not negligence. The drawer of a check cannot be sued until after the check is presented for payment. Weed v. Black, p. 268. Contracts for services in procuring legislation are void as against public policy, though agreements for compensation for collecting evidence, preparation of papers and arguments are valid. Second Nat. Bank of Leavenworth v. Smoot, p. 371. A note made in Washington, but dated and made payable at Leavenworth, Kansas, and sent to a bank at Leavenworth and by it discounted, is governed by the laws of Kansas as respects the question of usury. Phelps v. McDonald, p. 375. A claim held by a bankrupt upon money paid to the British government under the treaty of Washington of 1871, is not within the jurisdiction of the bankrupt court, so that an assignment thereof to the assignee in bankruptcy can be compelled. Burbridge v. Fackler, p. 407. A contract for a contingent fee for the collection of a claim against the United States, which is otherwise fair on its face, is not in violation of public policy. Dixon v. Wilkinson, p. 425. If a man carefully makes excavations on his own land he is not liable to an adjoining owner for injury done to his house thereby. Sanders v. Lyon, p. 452. A misrepresentation of the law is not Converse v.

When covenant runs with land.-A covenant that confers an immediate, permanent and beneficial effect on the use to which real estate is designed to be ap-ground for the avoidance of a contract. plied, will run with the title. Nat. Union Bank at Dover v. Segur.

BOOK NOTICES.

MCARTHUR'S REPORTS. - VOLUME II. Reports of Cases Argued and Determined in the Supreme Court of the District of Columbia (General Term), from the January Term, 1875, to the September Term, 1876, inclusive. By Arthur McArthur, Associate Justice. Washington: Government Printing Office, 1877.

WHU

WHILE the territorial jurisdiction of the Supreme Court of the District of Columbia is very limited, and the population for which such court determines the law is comparatively small, the court is made up of judges of national reputation, and the members of the bar who practice before it are men whose ability has given them pre-eminence not only locally but throughout the country. Nearly every case litigated in this court has, therefore, the advantage of being argued and adjudicated by lawyers of prominence. This gives these reports a position that they would not otherwise have, and a position which they will keep as long as Washington remains the Federal capital. Among the cases of value and interest in the present volume, we notice these: Pabst v. Balt. & O. R. R. Co., p. 42. It was here held, that an instruction to a jury that when the name of a station is called out on a railroad car before it reaches such station, it is to be presumed to be done by an agent of the company, and if the call is false it is the duty of the company to have it countermanded, and if that is not done, the company will be liable for any injury happening to a passenger acting upon such call, was erroneous. District of Columbia v. Humason, p. 158. An act of the legislative assembly of the District imposed a tax of $200 per annum upon commercial agents. This enactment was held to be valid under the Federal constitution. Van Reswick v. Lamon, p. 172. The lien of a judgment creditor upon real estate has priority over an attorney's

Wash. & G. R. R. Co., p. 504. The conductor of a horse railway car has the right to expel a passenger who is intoxicated and vomits in the car. Grumbone v. Mayor, etc., of Washington, p. 578. A municipal corporation held not liable for the wrongful act of a police magistrate and policeman, committed in attempting to enforce an unauthorized ordinance. In such a case the doctrine of respondeat superior does not apply. The reporting in the present volume is carefully done and the book is well printed and bound.

THE AMERICAN LAW REVIEW.

The American Law Review. July, 1877. Editors: Moorfield
Storey, Samuel Hoar. Vol. XI-No. 4. Boston: Little,
Brown & Company, 1877.

The present number of this publication contains the usual amount of valuable matter. The essays, four in number, are upon these subjects: "The Case of the Franconia," "Primitive Notions of Modern Law," "Insanity as a Defense in Criminal Cases” and “The Bench and Bar in France." They are all of them interesting reading and the two first named especially of a high order of merit. The digests of English and American reports and of cases in bankruptcy are as usual thoroughly well done. The book notices are well written, though there seems to be a leaning in favor of Boston authors and Boston publications, some of the works issued in that locality being unduly praised while some of those coming from other sections are criticised, we think, somewhat unfairly. The reviewer of Abbott's New Cases manifests a remarkable want of information in respect to the prevalence of practice under the Code. He says: "As the object of this series of reports is to illustrate the practice under the New York Code, and as happily that mysterious system exists nowhere but in the courts of New York the principal value of this series is naturally to practitioners in the courts of that State." According to the latest accounts this practice instead of being confined

to New York is in force in considerable more than onehalf the States of the Union and a code of procedure of the same nature is in force in England. The summary of events in this number is very interesting, though perhaps not as much so as we have known it to be in some previous numbers.

NOTES.

THE Rivesta de Disciplini Carcerarie for May, 1877.

number, and are so arranged that the judges can enter each court by means of a separate corridor, without coming in contact with any one. The barristers are also provided with a special corridor, running the whole length of the building, and the public, who will be admitted into the galleries of the court only, are similarly provided. Beneath the central hall is the machinery for heating and ventilating the various courts. On the east side is the quadrangle, and under this is an immense tank of water. This water will be forced into the towers and used in case of fire. The largest court at present in the building is the Lords Justices', which is 39 feet by 49 feet. A portion of the edifice, that which is devoted to the offices, is expected to be finished and put into use at the end of the present year. Mr. Colling then explained the various points of interest - the peculiar bricks which are being made specially by the contractors, Messrs. Bull, at Southampton, the saddle-back towers, and every thing of interest to the students. The present contract is to be completed in 1880, but it came out incidentally that a strike among the masons was apprehended shortly, which might retard matters.

has been received. This is an Italian journal, published at Rome, and is devoted more particularly to criminal jurisprudence, and is conducted under the supervision of some of the ablest minds of Italy. The present number contains an article on the meeting of the International Prison Congress at Stockholm; an account of the Philadelphia Society for Alleviating the Miseries of Public Prisons; the proceedings in the Italian Parliament in relation to a proposed law for the conditional liberation of convicts; an article on prison reform in Crotia, and a number of minor articles. The number appears to be one of more than usual excellence.- Messrs. G. P. Putnam's Sons issue in pamphlet form an article on "The Scientific Basis of Delusions, a new theory of Trance and its bearings on human testimony. By George M. Beard, A. M., M. D." The article in question was read before the New York Medico-Legal Society on the 1st of No-tainty which characterizes the practice and procedure vember last. It is an able and exhaustive discussion of a very interesting and important subject, and merits the attention of both the legal and the medical professions.

A correspondent of the Chicago Legal News makes some important suggestions to attorneys upon the not exactly legal but very important subject of ink. He says that the various fluids of a violet or purple tinge, which are very extensively used, are worthless, as they will, if exposed to the light, fade in a short time and become illegible, and should on no account be used in the preparation of papers of any value. The old fashioned black inks, made of a gallate or tonnate of iron, are the only safe inks in use. These undergo changes in time recognizable with the microscope, but under ordinary circumstances, as is well known, writing executed with these inks remains legible for centuries. Among the inks which he examined were Maynard and Noyes', Carter's and Arnold's. These can all be discharged with more or less facility from the paper by chemical agents, but until an ink is invented which cannot be thus affected, such as these should alone be used. He states that there are a number of black inks in the market which are equally as fugitive as the purple and violet inks.

The London Times thus refers to a difficulty which sometimes arises in the English courts but which has as yet not troubled us here: "That pervading uncer

of the Supreme Court of Judicature has now extended to the question as to what clothes should be worn on red-letter days. Mr. Justice Field appeared this (Saturday) morning in those brilliant robes which learned judges wear on days which commemorate the birth of Her Majesty or the death of the saints. On taking his seat, one of Her Majesty's counsel proceeded to address him. But His Lordship drew attention to the fact that his wig was not of those dimensions which the solemnity of the day required. The learned counsel in question stated that he hoped that it would not be supposed that he was capable of any want of respect either to Her Majesty or to the court, and that he would without delay attire himself in the full-bottomed wig; he had, however, understood that the full-bottomed wig should not be worn at nisi prius. About the same time, in an adjoining court, where sittings at nisi prius were being held, the learned judge took his seat in the black gown ordinarily worn by learned judges when sitting at nisi prius, probably being under the impression, as was the learned counsel above referred to, that during sittings at nisi prius no change of attire was necessary or proper. Indeed, two of Her Majesty's counsel, who appeared in their full-bottomed wigs, seeing the mode in which the learned judge was attired, left the court and lost no time in changing their fullbottomed wigs for a less imposing head-gear."

The Solicitors' Journal thus describes the edifice known as the New Law Courts: A number of technical students of the Artisans' Institute recently paid a visit to the New Law Courts, and were shown over the buildings by Mr. Colling, the government clerk of the works. After explaining the original design to lay the ground out between Carey street and the Strand as a public garden, Mr. Colling proceeded to the central hall, a structure which may be said to be the key of the whole building. This is 230 feet long and 45 feet wide, with a height of 80 feet. In this place the witnesses and jurors will meet and be conducted to the waiting-rooms of the various courts in which they are to be engaged. These courts are eighteen in | learning.

Lord Justice Mellish died on Saturday, June 16, at his residence in London in the sixty-third year of his age. His lordship was the second son of the late Very Reverend Edward Mellish, Dean of Hereford. He was educated at Eton, and at University College, Oxford. From 1840 to 1848 he practiced as a special pleader. In the latter year he was called to the bar, and became a member of the Northern Circuit. In 1861 he was made Queen's Counsel; and, in August, 1870, he was appointed Lord Justice of Appeal. The English press speak in very high terms of his ability and

The Albany Law Journal.

THERE

ALBANY, JULY 21, 1877.

CURRENT TOPICS. seems to be a growing tendency among reporters to omit all mention of the labors of counsel in the presentation of decisions to the public, and, indeed, many of them never give any thing more than the names of the counsel and the parties for whom they appeared. This is precisely the reverse of what was the practice in the early days of reporting. Take a volume of Johnson's Reports, for instance. There appears, first, a full statement of facts; next comes the arguments pro and con. of counsel, and the opinion occupies only a brief space in the report. The early reporters published the case those of modern times only give the decision. It may be said that the decision, and the reasons of the court for giving it, is all that is essential, but this is not uniformly or usually correct. The counsel in any case devote much more time and care to examining the principles involved in it than does the judge or court that determines it. To be sure the counsel are biased in their arguments and citations, but this fact is known and can be allowed for; and it is not certain that the court in a given

case is free from bias. Besides, many cases which are fully and carefully prepared and argued are determined upon some immaterial technicality, and the opinion touches upon none of the important points presented. It would perhaps be inexpedient to-day to give the arguments of counsel with the fullness with which the early reporters gave them, but more attention should be paid to counsel than merely giving their names. A brief statement of the points advanced upon each side, with the citations of authority made, ought to accompany each reported decision. The doing of this is sometimes difficult on account of the extreme length of the arguments, but, when properly done, it adds much to the value of the report. A counsel making an argument could, in most instances, materially aid the reporter by preparing for his use a brief synopsis of the points advanced, with the authorities supporting each point stated thereunder. Such a synopsis could precede or follow the body of the argument, and would be found useful not only to the reporter, but to the court, and in many instances to the counsel himself.

The case of Caswell v. Cross, 120 Mass. 545, ought to be a warning to those who employ the institutions which describe themselves as "collecting agencies," etc., to prosecute their doubtful claims. The defendant in this case employed a firm in Boston, which held itself out to be a "law and collecVOL. 16.- No. 3.

tion bureau," to collect a bill in his favor against plaintiff. The firm mentioned were not admitted attorneys, but its members were accustomed to sue out writs upon claims sent to it for collection, appearing in their own names when allowed to, and employing the name of an admitted attorney when necessary, but always conducting and retaining control of the suits instituted. This firm issued a circular describing its business, which contained this: "Should you intrust us with your collections we shall take your instructions as to the manner in which you wish your debtors treated, whether with delicacy, so as not to offend them, or with such severity as to show that no trifling is intended." Defendant gave no directions as to the manner in which his claim was to be collected, but the firm took the severe method, and caused the wrongful arrest of plaintiff upon process issued upon a judgment obtained in defendant's favor against him. Plaintiff thereupon brought this action for false imprisonment. Defendant knew nothing of the proceedings by the firm. The Supreme Court held that the firm was the agent of defendant, and that he was liable for the arrest.

Lord, J., who delivered the opinion, said: “We think any person who employs such agents, with knowledge on his part, giving no special instrucresponsible for injuries caused by the use of, such tions, authorizes the agents to use, and becomes means as they see fit to adopt in the prosecution of his business for his benefit, whether those means be honorable and proper, or whether resort is had to insolence and insult, or to misuse or abuse of legal process. They are his servants, to do his work in their own manner, though that manner may be unjustifiable or illegal."

The Commission who were charged with the duty of arranging the Revised Code of Civil Procedure, so as to conform to the intention of the legislature, completed their labors on the 17th inst., and on that day filed what will be, after September 1st, the law regulating practice in the courts of this State. It is now possible for the bench and bar to ascertain precisely what the coming Code is. There have been several editions issued in advance of the filing of the draft of the Commission, but none of these can be relied upon as setting forth the law with complete accuracy. It has been said that any good lawyer could, with the enactments in relation to the Code before him, do what was necessary as well as the Commissioners. Whether this be true or not, it is not to be presumed that he could do it any better than the Commissioners, or that he could properly do it any more quickly. A number of persons might be put at the task, but this is a work that cannot well be done by the piece. Besides, if there should be any instance where there might be a difference of opinion as to what ought

to be done

and it is well known that legislation is full of such instances the conclusion of the Commission would govern. These publications anticipating the work of the Commission must, therefore, be unreliable as authority, and, therefore, of no value whatever. As illustrating these remarks, we would refer to three gross errors in Ward & Peloubet's "Ready Reference Edition," where no notice whatever is taken of the changes made in sections 382, 550 and 551 of the revised Code by chapter 422 of the Laws of 1877.

There is more romance in the courts than in the novels in fact, almost every litigated case would, if taken with all its surroundings, be found to possess a dramatic interest fully equal to that of any of the productions of Scott, Cooper or Dickens. Generally, however, the details of a lawsuit are so dry, there is so much merely formal matter brought in, and so much of what the world at large would like to know, suppressed, or but lightly touched upon, that the public do not take that interest in judicial proceedings of a civil nature that it might be supposed they would. It is only when the facts of a case are remarkably horrible, or more than usually disgusting, that the people crowd into the courts and watch a trial to its end. Among the most interesting cases in a romantic way are those involving the probate of wills, and a peculiar one of this kind was decided in New York, on Monday last, by Judge Barrett. One Lewis came to New York about forty years since, and, commencing as a porter in a mercantile house, by means of industry and shrewdness rose to be a merchant, and to accumulate a fortune of $250,000. There was always a mystery connected with his early life which no one was able to solve, but, as he possessed riches and social habits, he was welcomed into the best circles. That he was not of pure Anglo-Saxon descent was manifest by his appearance, but it was supposed that one of his parents was a Spanish-American, as his features were of that type. According to the custom of mortals, he died, and, according to the custom of wealthy merchants, he left a curious will, which led to contention between those benefited by it and his next of kin. Now, the mystery of his life was solved, and it was made manifest that he was the son of a slave woman, his father being a white man. The next of kin of the deceased, one of whom contested the will, are another son and a daughter of the same woman, both of whom have been slaves. Judge Barrett decided in favor of the contestant, holding that the next of kin are entitled to the estate of the decedent, subject to a contingent life interest of another person created by the will, which was held to be valid to the extent of this interest.

A young lawyer in Philadelphia, for the purpose of helping a friend who wished to be admitted to

the bar, but who had been rejected upon charges affecting his moral character, made a motion for that purpose in the Court of Common Pleas of that city, and took such steps that his friend was upon that occasion successful in procuring the enrollment of his name as a member of the legal profession. The fact of the previous rejection was, however, concealed. When the court discovered the truth, it manifested its displeasure by suspending the young lawyer from practicing at the bar for the period of one year. In answer to a plea put in by the offender for leniency, on the ground of "youth and generous sympathy," etc., it said: "There is nothing in the answer to excuse the conduct of Mr. Deringer. His youth is urged in extenuation of his offense, but it will not be seriously pretended that his age and his connection with the bar for several years past are not sufficient to enable him to distinguish between right and wrong in a matter of this kind; or that he does not know the difference between a candid statement of material facts, and their concealment, by which the court were misled. His plea of generous sympathy is no justification for not acting up to his oath of office, and for fulfilling the obligation to act with all due fidelity to the court." What was done about the friend is not reported.

CONE

NOTES OF CASES.

ONFLICTING decisions between the courts of this State and the Supreme Court of the United States upon questions of negotiable paper are to be much regretted. In Carpenter v. Logan, 16 Wall. 271, the latter court held that the purchaser of a negotiable note, secured by a mortgage, takes the mortgage as he takes the note, free from the objections to which it was liable in the hands of the mortgagee, and the Supreme Court of this State followed this holding in Gould v. Marsh, 4 T. & C. 128, 131. The contrary doctrine seems to be asserted by Judge Andrews in giving the opinion of the Court of Appeals in Barlow v. Myers, 64 N. Y. 41, on pp. 45, 46.

In the case of State, Atkinson, Prosecutor, v. Bishop, application was made for a public road. This was objected to, on the ground that the road, as applied for, was not a public road, and was founded on the fact that its terminus was on private property. The court held the objection not to be sound, saying that the ancient doctrine of the common law, that it was of the essence of a highway that it should lead to a market town, or from town to town, and be a thoroughfare having no terminus a quo or terminus ad quem, has been overruled. It is not essential to a public highway that it be a thoroughfare. It may be a cul de sac. If, in fact, it be common to all the public, it is a public highway, without regard to the place of its termination. Rugby Charity

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