neglecting to comply with the statute. The location of the railroad on the public road was an appropriation of the latter, the subsequent extension of the city so as to include this road did not so change its character as to withdraw it from the operation of the act. The city took the road charged with its burden. It still retained the attributes of a public highway. The necessity of furnishing a substitute as soon as it was occupied by the railroad was in no wise lessened. The injury is not to an individual only, but to the public. It is the denial to every citizen of the Commonwealth of a right to the use of a public highway in place of the one taken by the corporation. It is true, on failure of the corporation to reconstruct the road, the municipality may do so, and recover the cost thereof of the railroad company. Bean v. Howe, 4 Norris, 260; Pennsylvania Railroad Co. v. Borough of Irwin, 4 id. 336. It may also be compelled by mandamus

to reconstruct. Rex V. Commissioners Dean Incl., 2 Maule & Selw. 80: Rex V. Severn

R. Co., 2 Barn. & Ald. 646. The fact that these remedies exist furnish 110 reason why an indictment will not also lie. Indictment is to punish for the past; mandamus is to provide for the future. The act provides no specific remedy for the enforcement of this duty. All common-law remedies are therefore open against the violation of this law. The failure to reconstruct concerns the public. It is therefore an injury to the Commonwealth, to which belongs the franchise of every highway as a trustee for the public. O'Connor v. Pittsburgh, 11 Harris, 187. A railroad corporation may take possession of such portions of any public road as may be within the limits of the land taken. It is not subject to an indictment for nuisance for the mere taking and occupying of a public road. Danville, etc., R. Co. v. Commonwealth, 23 P. F. Smith, 29. The question whether the omission to reconstruct it on proper ground and in a suitable manner would so subject the corporation, did not arise in that case, and was expressly reserved. In Northern Central R. Co. v. Commonwealth, 9 Norris, 300, it was held an indictment would lie against the corporation for so grading its crossing on a public highway as to constitute a serious inconvenience and dangerous obstruction to travel. The right to cross was clear. The offense was the failure to construct according to the requirement of the statute. It may be claimed however that this was a case of misfeasance. It was nevertheless a failure to do an act in such a manner as its duty required. In Rex v. Mayor of Stratford, 14 East, 348, the corporation was indicted for non-repair of a bridge, which it was the duty of the corporation to repair. In Queen v. R. Co., 3 Ad. & El. (N. S.), 223, it was held the corporation was liable to indictment for not constructing certain arches, pursuant to an order of the sessions and the statute incorporating the company, to connect certain lands severed by the railway. In Regina v. Great N. R. Co., 2 Ad. & El. (N. S.), 316, the company had cut through a carriage-way with its railway, but had not carried the road over the railway by a bridge, as required by the statute. In delivering the judgment of the court sustaining the indictment, Denman, C. J., said: "The question is whether an indictment will lie at common law against a corporation for a misfeasance, it being admitted, in conformity with undisputed decisions, that an indictment may be maintained against a corporation for nonfeasance." He then proceeds to show that the distinction between part performance and no performance rests on no solid foundation, and that an indictment will lie for either. So in Lyune Regis v. Henley, 3 Barn. & Adol. 7, by the terms of its charter, a duty was imposed on the borough or town to keep in repair and maintain certain banks, sea shores, mounds, and ditches, etc., which it omitted to do.

The action was by one aggrieved. In delivering the judgment of the court, Lord Tenterden, C. J., said: "We think the obligation to repair the banks and sea shores is one which concerns the public, in consequence of which an indictment might have been maintained against the plaintiff in error for their general default. "An indictment may be sustained for the general injury to the public," and the party aggrieved has his remedy. The law is correctly stated in section 91 of Wharton's Crim. Law: "We may therefore hold that a corporation may be indicted for a breach of duty imposed on it by law though not for a felony, or for public wrongs involving personal violence, as riots or assaults." Pittsburgh, Virginia, etc., Railway Co. v. Commonwealth. Opinion by Mercur, J. [Decided Oct. 16, 1882.]

INJUNCTION-FOR NUISANCE OBSTRUCTING RIGHT OF WAY.-It has long been settled that nuisances to right of way are one of the classes of cases in which the equitable remedy by injunction may be sought. This was established in England and accepted as a rule in this country. No case has been cited where it was denied or doubted in this State. Its existence has been recognized. The dictum is that the right should be clear to warrant a decree and injunction to compel the keeping open of a way, and if the right be doubtful, a chancellor will pause until it be established by law. King v. McCully, 38 Penn. St. 176. In Maryland parties are entitled to such remedy, and a defend ant who has obstructed the plaintiff's right of way over the defendant's land will be restrained from further obstructing the way. Shipley v. Caples, 17 Md. 179. The owner of a right granted by deed has a right to its enjoyment in the mode and form stipu lated for in the deed. The mere fact that such enjoyment is prevented is sufficient ground for interference of the court by injunction. It is not necessary that the owner should prove damages to entitle him to his property. The obstruction of a way by the owner of the land differs widely from the maintaining of a mill or factory, which is in itself lawful, but by its noise, fumes or odors, becomes a private nuisance to a person in the vicinity. In the latter case the question of irreparable damages enters, and often a court of equity will not interfere. Richards' Appeal, 57 Penn. St. 105. The doctrine of that case applies to many other kinds of business, but not when a man buys land subject to an easement ог grants an easement. cannot appropriate such property against the owner's will, and say, I will compensate him in damages. A judgment for damages does not transfer the plaintiff's property in this way to the defendant, as would a judgment in trover or trespass for taking goods. Nor will the law restore enjoyment to the owner. He may have repeated actions for damages, and neither gain enjoyment nor lose his right thereto. The law does not offer an adequate remedy. He is entitled to a remedy that will restore him to enjoyment, and is not confined to actions at law for damages resulting from obstructions. Hugus v. Lauer. Opinion by Trunkey, J. [Decided Oct. 25, 1882.]

He

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Friday, May 11, 1883.

Order affirmed and judgment absolute dismissing the complaint with costs, rendered in favor of the respondent-Dorrence v. Henderson.Order of General Term affirmed, and ordered and adjudged that said Frank R. Sherwin appear at the next General Term of the Supreme Court to be held in the First Judicial Depart, on the first day of said General Term, or as soon thereafter as counsel can be heard, and on such other days and times as may be fixed by it, and abide by and perform its judgment or order in the premises-The People ex rel. Sherwin v. Mead (two cases).- -Judgment affirmed-The People v. Webster: People v. Wiggins; People v. McDonnell.-Judgment affirmed with costs-Langdon v. The Mayor, etc., of New York.- People ex rel. The Brooklyn City Railroad Company v. The Board of Assessors of Brooklyn,

Judgment affirmed with costs not exceeding $50 and disbursements-People ex rel. Brooklyn Ferry Co. v. The Board of Assessors of Brooklyn.

Recess till Monday, June 4th, at Saratoga Springs.

The Albany Law Journal.

ALBANY, MAY 26, 1883.

CURRENT TOPICS.

YOVERNOR CLEVELAND has vetoed the bill

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for taking away the letting of contracts for the printing of the Court of Appeals Reports from the secretary of State, comptroller and State reporter, and vesting it in the Court of Appeals or such members or officers of the court as they shall designate. His excellency observes that the authority is at present "very properly lodged;" that the State reporter "is or should be a very useful and important member of the contracting body," and by the proposed law he is left out; that there are no "great abuses' in the present system; that he has "no assurance that the Court of Appeals desire to be invested with this contracting power;" that "the paternity of the bill seems somewhat obscure;" and that he is "not convinced that any certain benefit would result from a change in the existing law." His excellency must have chuckled when he wrote those words about the leaving out of the reporter, as it is well known that the reporter has been an advocate of the bill, and spoke in favor of it in committee, and it is presumed that he was left out through his own modesty, with possibly the ulterior hope of getting in again as one of the delegated "officers" of the

court.

This is truly "seething the kid in its mother's milk." Not many men defeat themselves by their own unintentional modesty. We are satisfied with the reporter's present position and powers. Everybody seems pleased with the veto. The great mass of the lawyers, who do not want to see the price of the reports go up, and who petitioned in great numbers against the bill, are pleased. The Journal is pleased. The Argus, which printed columns of advocacy of the bill and abuse of its opponents, is pleased by the Governor's proof of nonpartisanship, and seems to regard the veto as a Last but not least, we are blessing in disguise. pleased. Especially are we pleased to witness the defeat of as patent a piece of jobbery and partisanship as ever was worked through a legislature by interested parties under the false cover of the wishes of the judiciary.

Of course the Honorable Mr. Thompson, rather more famous as a law-breaker than as a law-maker, was triumphantly acquitted for trying and executing Mr. Davis "on his own hook," and has received the customary "ovation" from his neighbors and constituents. Thompson is now probably in a fair way of becoming governor or something else in the community where such men are admired. Prudent Mr. Thompson, to convert a domestic tragedy into an important factor in his political career, and make a touching speech in excuse of his crime, furnishing a copy for the press. If he should VOL. 27-No. 21.

add to the cowardly killing of which he was guilty, and for which he is so much admired, a timely duel, there is no telling where he would stop in his career of fame -- perhaps he might soon aspire to the Presidency.

Rather worse than this affair is that of Dunn and Elliott. The law as settled for Chicago by that case seems to be as follows: If ruffian, bully and coward number one threatens to kill ruffian, bully and coward number two, or drive him out of town, and goes "hunting" for him, and number two hears of it, but they do not meet, number two may lawfully search for number one, and having found him, peacable and unarmed, may lawfully kill him out of hand. These outrages on justice are not to be charged to the jury system; they grow out of the public spirit of the community where they occur. The result in the Thompson case is such as usually takes place in every community, and such being the public sentiment, why not make adultery or seduction a crime, capital if need be, and punish it in a decent and orderly way, and if the offender takes the law into his own hands, punish him? As the matter now stands, we have the anomalous spectacle of a man acquitted for killing another who has done him no legal wrong. For the result in the Dunn case there is and can be no excuse or explanation.

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Our contemporaries are discussing the propriety and policy of newspaper criticisms on judicial opinions of courts of last resort. The Denver Law Journal observes: "The only benefit to be derived from a criticism is a correction of errors, into which the court may have fallen inadvertently. But in making such criticisms, the writer does so at a great disadvantage. He has not the facts of the case heard by the court before him; he has not heard the arguments of counsel; he is not familiar with the peculiar circumstances of the case, which justify the opinion given by the court in that case. In a word, he does not view the whole case from the same stand point as the court did when giving its decision; all which is indispensable to a reasonable criticism of any opinion in a given case. Another serious objection to such criticisms is found in the fact that such criticisms have a tendency to destroy that confidence in the learning, ability and integrity of our highest court of judicature, which is essential to its carrying out the purposes of its institution. Interest reipublicæ ut sit finis litium, is a very ancient maxim, the truth of which has been undisputed for thousands of years. The object of the establishment of the Supreme Court is to put an end to the particular litigation. Its decisions are final, and not subject to review in another court. Though not so theoretically, yet practically, it is infallible, so far as the decision in the particular case is in question. When the decision is finally made, for that case, it is like the laws of the Medes and Persians, irrepealable. It is the duty of the litigants to bow in submission to the decree, however much the decree may be against their interest ormatured views. * * *

We never read such criticisms without feeling that the critic is, perhaps unintentionally, contributing his mite toward destroying all respect for law and order, and promoting a sentiment too common in America, which destroys all reverence for the powers that be. We are not ignorant of the fact that our judges are liable to err, because they are not placed beyond the frailties of human nature. But while such is the fact, why bring to the public gaze the errors committed by them, and thus destroy the respect of the public for the court, and as a necessary result destroy its capacity for usefulness to the community? It seems to us that the evils arising from the now too common criticisms of judicial opinions in the public journals, overbalance any good derivable from such criticism and are of no real public benefit." For ourselves, while we agree that mere newspapers have little business with judicial criticism, we think that law journals may answer a useful purpose by temperate, candid, and disinterested criticism, even of decisions of courts of last resort. Counsel in particular cases are never fit to criticize the decision, and should never be heard to do so in the law journals. And the office should be very considerately and delicately employed by others. The courts cannot answer, and if they could, would probably in five cases of six be able to vindicate themselves. The right may more justifiably be exercised in cases of dissent than in cases unanimity. After all there is more in the spirit, manner and source of the criticism than in the fact. We feel that our ultimate judges ought to have a conventional respect shown their opinions, but we shall never concede that they are or ought to be above all criticism.

of

There flourished one lawyer three hundred years ago whose memory is still green. But he wrote a book. The ter-centenary celebration of Grotius' birth has recently been held in Holland. This great jurist was as far in advance of his age in international law as Socrates was in advance of his own age in religion. He urged many ameliorations of warfare, some of which have not yet been adopted, and some of which have only lately been adopted; and especially he recommended international arbitration. He wrote against enslaving prisoners of war, the violation of women, the practice of privateering, and wanton destruction of property, and he urged humanity toward non-combatants.

The periodicals keep up the discussion of the "jury question" as if there were really something in it of practical moment. The Century for June contains several answers to Mr. Albert Stickney's published views on the subject, and a rejoinder by Mr. Stickney. There is nothing new either in the one or the other. Mr. Stickney cites the opinion of a judge of the Federal Court of Claims to show that a bench of judges is a better tribunal for the determination of questions of fact than a jury. We have not yet seen any answer from Mr. Stickney or

any one else to these two objections to the proposed changes: first, the tribunal for determining facts should not be known beforehand, and should not always be composed of the same individuals, but from the community at large, for the sake of safety, public policy, and the influence of the verdict on the parties; second, the same tribunal should not be invested with the determination of the facts and the application of the law, but the facts should be determined without any knowledge of or regard to the legal results. When some body undertakes to meet these two suggestions, then there will be something definite to discuss. But the attempt of Mr. Stickney and his school to induce the people of this country to give up the jury system are as futile as the efforts of the Baconians to make us give up Shakespeare. The solution of the matter is very simple; if Mr. Stickney has a lawsuit with a party who entertains the same views of this subject, they can agree to dispense with a jury; but if his antagonist wants a jury he should have one, and he will insist on having one, in spite of Mr. Stickney's theories. If Mr. Stickney would bend his energies to the practical work of reforming or correcting the jury system, he would be doing something much more feasible and useful. As it is he is wasting his powder.

In Munster v. Lamb, it has just been held in England, by Matthew and Smith, JJ., that no action lies against a solicitor for defamatory expressions used by him in defending a prisoner. This is founded on Hodgson v. Scarlett, 1 B. & Ald. 232, where the defendant, afterward Lord Abinger, was sued for calling the plaintiff a "fraudulent and wicked attorney." It would indeed be a fine state of affairs if attorneys should be held responsible for their utterances in court, and editors should be held irresponsible for their writings in newspapers.

One of the female lawyers of this country, speaking of the inequality of woman's position before the law, says it is as easy for a man to get a divorce in Maine as it is to get "a drink." If this is so, we suppose it is equally easy for a woman to get a divorce. The committee of the American Bar Associa tion on Jurisprudence and Law Reform, in their last report said on the subject of marriage and divorce laws: "We find that the number of causes of divorce rises to sixteen in New Hampshire and falls to two in Delaware. Among some of the causes which, though not found in the statutes of most of our States, are deemed sufficient in one or more of them, we may mention the following as specified by Mr. Browne: Colorado. - Willful absence from the State without the intention of returning. Dakota. — When, from threatening words, the weaker party feels in danger of bodily injury. Florida.- Habitual indulgence of violent and ungovernable temper. Indiana, Maine, and North Carolina. - Any cause which the court, in its discrection, may deem sufficient. Indiana. - Failure of husband to support his family.

Missouri. Vagrancy of the hus