v. First National Bank of Buffalo and another.Receiver's appeal dismissed with costs-Henry R. Pierson, receiver, v. Andrew W. Morgan.-Judgment of General Term reversed, and that of the Erie Oyer and Terminer affirmed-People, appellant, v. Lorenzo Dimick, respondent.-Conviction affirmed with costs--People, ex rel. John Lockner, respondent, v. James A. Flack, county clerk, appellant.-Order of department removing relator reversed with costs-People, ex rel. John McLaughlin, appellant, v. Brooklyn Department of Buildings, respondent.-Order appealed from reversed, and that of Special Term affirmed, respondent to pay appellant's costs in all courts-People v. Knickerbocker Life Insurance Company. -Orders of courts below modified so that no costs shall be grauted, and as modified affirmed without costs-People, ex rel. Van Riper, v. New York Catholic Protectory.- -Judgment affirmed-People v. David C. Jones, appellant.-Conviction reversed, and new trial granted-People v. Alex. Dumas, appellant. Judgment affirmed with costs Lucius T. Reed, respondent, v. A. G. Darwin, appellant.-Order of General Term modified so as to make the reversal of the Special Term absolute, leaving the parties to apply for a new reference as they may be advised, on which all questions, except privately between bondholders and creditors holding certificates, may be considered-Charles Rapt v. Henry Y. Attrill and others; Appeal of Morton, Bliss & Company.— Judgment reversed, and ordered for defendant with costs of all courts-James Silvey, respondent, v. William H. Lindsay and others, appellants.-Orders affirmed with costs-In re petition of Joseph Little and others, appellants, in Sullivan v. Miller, J. F. Ames, receiver, respondent.-Judgment reversed, new trial granted, costs to abide event-Horace N. Sherman, respondent, v. Dealware, Lackawanna and Western Railroad Company, appellant.-Judgment affirmed with costs-Frank M. Thompson, appellant, v. Town of Mamakating, respondent.- -Judgment affirmed with costs-Diamond Match Company, respondent, v. William Roeber, appellant.- Judgment affirmed with costs-City of Brooklyn, respondent, v. George Copeland, appellant.-Judgment affirmed with costs toga county. The court thus decides that the county is responsible on its original obligations to the plaintiffs, notwithstanding the fact that they had surrendered them to Henry A. Mann, its county treasurer, from 1861 to 1876, and had accepted in presumable payment notes ostensibly made by the treasurer on the authority of the supervisors. When Mann's last-People v. Amaziah L. Bradner.-Orders affirmed term of office was about expiring (after having failed of another Republican nomination) it was discovered that there was a wide discrepancy between the county debt as reported by him to the supervisors in 1874 and the actual amount of the notes outstanding. To the supervisors he had reported that there was but $20,000 of outstanding debt, and it was discovered that there were outstanding in addition thereto notes for county obligations that Mann had reported to have been paid to the amount of $118,800, including two $10,000 notes that he had borrowed from the First National Bank of Ballston Spa, of which he was vice-president, in May, 1875, that the Supreme Court has found he was totally unauthorized to borrow. Judgment of General and Trial Terms affirmed with costs-First Nat. Bank of Ballston Spa v. Supervisors of Saratoga county. This is an action predicated on the two notes mentioned in Parker v. Supervisors, supra, and in it this court sustains the findings of Justice Landon that the plaintiff in the Mann note cases cannot recover against the county when knowledge was had that he was not authorized to borrow in the sum expressed in the note given by him. In this case Hiro Jones, plaintiff's president, was chairman of county supervisors, and knew that Mann was not authorized to borrow $10,000 in any one sum in the year 1875.Order of General Term reversed, and the case remitted to that court for further consideration-Adams v. Arkenburgh.Judgment for plaintiff affirmed with costs-Charles S. Archer v. New York, New Haven and Hartford Railroad Company.-Judgment for defendants reversed, new trial granted, costs to abide event-John W. Anderson, assignee, etc., v. Clement Reed and others.-Order in favor of plaintiff affirmed with costs-West Philadelphia Bank v. Allston Gerry. -Judgment for defentant affirmed with costsBowker Fertilizing Company'v. Lawrence N. Cox.Order affirmed and judgment obsolute ordered for plaintiff, with costs-Daniel C. Case v. Wealthy Dex--National Filtering Oil Company, respondent, v. ter and another.-Judgment for plaintiff reversed, new trial granted, costs to abide event-Thomas Cahill v. Henry Hilton.-Judgment for plaintiff affirmed with costs-Lavinia C. H. Dempsey v. Mayor, etc., of New York.- -Plaintiff's appeal dismissed-American Exchange National Bank, respondent, v. with costs-Albert W. Darrow v. Horace F. Darrow and others. Judgment for plaintiff affirmed with costs-Joseph Eager v. Jonathan Sniffin and others. -Order of General Term reversed, and judgment of Circuit in favor of plaintiff affirmed with costs-John E. Furman v. Union Pacific Insurance Company.Order of lower courts reversed, and the prayer of the petitioner denied with costs-John Horne, respondent, v. John Watts De Peyster and others.- -Order affirmed with cost-In re New York District Railway Company. Judgment for plaintiff affirmed-Mary A. E. La Duke v. Village of Walton.- -Order of General Term reversed, and judgment of the Circuit for defendant affirmed with costs-John J. Mack v. Rochester German Insurance Company.-Judgment for plaintiff reversed, new trial granted, costs to abide event-Jacob Morris, respondent, v. New York Central and Hudson River Railroad Company.-Judgment for defendant affirmed with costs-Helen A. Moser v. Thomas B. Cochrane. Judgment for plaintiff reversed, new trial granted, costs to abide eventThomas J. Pope v. Terre Haute Car Company.- -Order of General Term reversed, and that of Trial Term for defendants affirmed with costs-Erastus S. Prosser Citizens' Insurance Company of Missouri, appellant. Stephen Voisin.-Judgment affirmed with costsClara F. Visscher, respondent, v. Stanley Bagg, appellant.-Personal judgment against the individual defendants reversed with costs, and modified in respect to charging the costs in the foreclosure action as a lien, and by making the mortgaged property in the hands of defendant corporation primarily liable, and as so modified affirmed, with costs against corporation's defendant-Harriet H. Vilas and others, respondents, v. Delaware and Hudson Canal Company and others, appellants.- -Judgment reversed, new trial granted, costs to abide event-Hannah M. Woodward, respondent, v. New York, Lake Shore and Western Railroad Company, appellant.-Judgment affirmed with costs-Humphrey E. Woodhouse and others, respondents, v. Jacob M. Duncan, appellant. Order of General and Special Terms modified by declaring that the damages when ascertained shall be paid out of the fund reserved under the order ot the court, and as modified affirmed, costs of appellants to be paid out of this fund-Samuel Week and another v. J. W. Cornwell and others.Appeal dismissed with costs-William Williams, appellant, v. Robert W. Freeman, respondent. The Albany Law Journal. IN ALBANY, OCTOBER 15, 1887. CURRENT TOPICS. N the consideration of legal affairs the great dailies of the city of New York furnish a remarkable variety of forms of idiocy and folly. There is the Post, which gives us the dignified or Sir Leicester Dedlock form, like a highly respecta ble, stiff-necked, white-cravatted old gentleman, sitting with his shiny boots on the fender, a glass of port wine in his hand and his glasses insecurely balanced on his tremulous nose, his face red with indignation at the assumptions of these chief justices, and saying, “dear, dear!" in a dazed way. Then there is the Tribune, awkwardly masquerading in the over-wide, forsaken garments of the profane old Grahamite philosopher, laying down the law in the arrogant style in which the shorttrousered, muddy-booted "Founder " used to damn champion of Democracy, moaning in the sad belief that there is one law for the rich and another for the poor, and denouncing a state of things in which there are not lawyers who will work for nothing and pay their own expenses. And then there is the clown of the Herald, wearing his own proper cap and bells, and beating the air with his stick and bladder, and "whooping up" the most absurd views in the most vulgar and atrocious rhetoric. There are other grades and weak imitations not worth specifying. But the Herald, to adopt its own felicitous style, "rags the bun." In regard to the stay in the Sharp case all these guides of popular opinion have ranged over the gamut of demagogism and ignorance, and have done their worst to bring discredit on magistrates who are powerless to answer. In a late number the Herald warns the chief judge of this State not to sit on the argument of the Sharp case, because he has prejudged its merits; not in the letter, the Herald admits, but in spirit, because he has avowed that he has "serious doubt" of the correctness of the rulings in the courts below. But the Herald shrieks, "didn't the unanimous opinion of the four judges at General Term settle all that? How can the Court of Appeals avoid affirming their judgment?" To think that thousands of busy, unreflecting men will gobble down the precious wisdom of the Herald ignoramus, and respond, "why, of course, the chief judge has no right to sit; he must be corrupt!" Such are the oracles and regulators of popular opinion on subjects of purely legal interest. One of these papers -the Tribune, we believe actually says that the chief judge's announcement that such stays are not uncommon or unprecedented will be "a great surprise to the people and the district attorney, and if he is correct, why were they not asked for in the cases of the aldermen?" It seems not to occur to VOL. 36 No. 16. off the slaveholders. Then there is the World, - these blind leaders that if there is in the mind of the chief magistrate of the State serious doubt that a prisoner has had a legal trial, it would be disgraceful to jurisprudence to incarcerate him as a felon in the State prison until the question can be examined, with the delay of two or three months. If Jacob Sharp were an editor, and had been convicted of malicious libel, and the courts had denied such a stay, how their columns would reverberate with abuse! "Circumstances alter cases." As to doubt about a case in which four or five inferior the suggestion that there cannot be any serious is the Court of Appeals for? Surely not to affirm judges have been unanimous, we would ask, what convictions pro forma. We believe the judges below were unanimous in Tweed's case, and yet the Court of Appeals were unanimous against them, Republicans as well as Democrats. We greatly admire the independent and unpopular course which Judge Potter and Chief Judge Ruger have taken in this case. their heads elevated in an atmosphere far above the With judicial calmness and indifference, low level where these angry, ignorant, scheming and abusive disputants are wrangling, and frothing and cursing. They have done their duty like impartial and just magistrates, contemptuous of all considerations but those of conscience, and illuminated by the white light of reason, information papers to be getting ready to go into more convuland experience. Meanwhile we advise the news sions when they hear of the result. We recommend to perusal the paper by Mr. David Dudley Field, on the amelioration of the laws of war, which we published last week. It seems a wicked and absurd thing that on the continent of Europe four millions of men, in the prime of life, should be kept constantly arrayed in arms against one another, at a ruinous expense to the different States, wasting the best years of their existence, and all to gratify the ambition and selfishness of the imbeciles or tyrants who are suffered to rule over them. How fortunate is this country, protected by its isolated position from such complications, and left unembarrassed to pursue its wonderful and unexampled career of useful industry! At the close of our own late war, unparalleled in modern times, the soldiery sank back into the ranks of peaceful producers, and the country is now embarrassed by the rapidity with which the war debt is being discharged! Mr. Justice Grove, who has recently retired from the English bench, full of years and honors, is a distinguished scientist, once president of the British Association, and the inventor of the celebrated "Grove battery." We recommend to the commissioners appointed in this State to consider the subject of ameliorating the mode of capital punishment, the propriety of recommending electricity instead of hanging, and the adoption of the "Grove battery " as the means. This would seem very ap propriate, and a handsome compliment to the inventor. Perhaps he might complain that it would give him a "shocking" immortality. Why not try it on the Chicago anarchists? - electricity for dynamite. Such scientific persons ought to feel complimented by being hoist with their own petard, or something like it. A new law school has been organized at Buffalo, a home product for home industry, we should say. Judge Daniels is the dean and professor of constitutional law, and the remainder of the faculty are as follows: Charles Beckwith, chief judge of the Superior Court of Buffalo, professor of equity jurisprudence; Albion W. Tourgee, professor of legal ethics; LeRoy Parker, professor of the law of contracts and private rights; Spencer Clinton, professor of the law of property; James Frazer Gluck, professor of the law of corporations; George Clinton, professor of maritime law and admiralty; John G. Milburn, professor of the theory of law, codes and codification; Geo. S. Wardwell, judge of the Municipal Court, professor of the law of torts; Adelbert Moot, professor of the law of evidence; Tracy C. Becker, professor of criminal law and procedure, and medical jurisprudence; Charles P. Norton, registrar, and professor of the law and practice in civil actions. Special lectures will also be delivered as follows: Hon. Loren L. Lewis, Trial of Causes; Hon. Sherman S. Rogers, International Law; Hon. Jacob Stern, Wills and Estates; Hon. L. N. Bangs, Trusts; Sheldon T. Viele, Roman Civil Law; Charles B. Wheeler, Law of Corporations; E. L. Parker, Real Property; Carl T. Chester, Marriage and Divorce. This is a board of remarkable ability, although we should doubt that the members would find time, in their engrossing business, to prepare careful lectures. Judge Daniels, notoriously the hardest working lawyer in the State, seems never to have enough to do with his own and other judges' work, and must take on this duty for relaxation. We heartily wish the new enterprise suc "Whatever there may be in a name under other circumstances, it would seem as if a judge had the right to have his judicial opinions accredited to his own name. But there is an instance in the local courts of frequent mistakes in this respect. Chief Judge Larremore of the Common Pleas, and Justice Lawrence of the Supreme Court, have both been sitting upon the bench for more than a dozen years, but the name of the former is so unusual, and under the pen of a hasty writer assumes such a similarity to the name of the latter that great confusion of names has resulted. For instance, the recent decision of the chief judge of the Common Pleas, defining and limiting the duties of the referee in the Ives case, has gone over the country, and is even ap pearing in the most carefully edited law journals, as a decision by Chief Justice Lawrence.'"-Tribune. If this means us, we must plead that we think the Tribune itself printed the name "Lawrence." By the way, we do wish the Tribune would not say "under circumstances." "In" is much better. It is much more natural to be in things standing around than under them. The Tribune also says: "A politician observed the other day that the pale-faced David Hill was concentrating himself on politics as in his youth he wreaked himself on law. 'Dave went into an Elmira law office as general utility boy,' he said, and determined to be a lawyer himself, and to be a successful one. From that moment he thought of nothing else. Nobody ever saw him at any kind of entertainment; he never amused himself; he simply stuck to the law, and of course he made a success.'" It is understood that our clever governor is now industriously studying the law of succession and descent. It has been suggested that in the new revision by the judges of our Supreme Court rules, a new rule should be adopted requiring counsel to exchange briefs on appeal a few days before term. This seems a wise suggestion. It is difficult to guess what can be urged against it. This, we believe, is the practice in the United States Supreme Court. Arguments and citations are designed to enlighten the court; not to surprise counsel. No doubt in most instances much better arguments would be made on both sides under such a regulation; especially would all citations be examined and criticised. Arguments at nisi prius are frequently very incomplete and crude, and the adoption of the suggested rule would tend to promote justice. The difficulty of definition is one of the standard objections to codification. But the difficulty is not so much real as apparent. It exists more in the refinements and ingenuity of counsel, paid for picking flaws, than in substance. Now one would suppose that there could be no doubt about the phrase "the outside of a cab," but it seems that there is. The London Law Journal says: "The Edipus of the nursery, when asked which is the right side of a plum pudding, replies, 'the side which is not left,' and a similar answer has been given by the commissioner of police to the question, what is the outside of a cab? The commissioner says in effect that it is the side which is not in. Some one wrote to inquire whether he is bound to pay for a Gladstone bag, carried partly inside and partly outside the door of a hansom cab, as luggage carried outside,' and the commissioner is of opinion that he is if the doors cannot be closed over the bag. According to this, if a lady's dress spreads on to the splashboard of one of the new Victoria cabs it is luggage carried outside. The truth is that the question is one of fact according to the circumstances of each case. If luggage is wholly on the footboard it is carried outside. If it is partly on the footboard and partly within the doors the question is whether it is substantially being carried inside or outside the doors. The phrase 'carried outside' was used originally in the table of fares of the Hackney Carriages Act, of four-wheeled cabs only, in the days when there was no charge for luggage unless there were more than two passengers, and no one thought of the footboard of hansoms when it was applied generally. It is arguable that the outside of a hansom is the roof only, but the law meant to adjust the fare to the burden, and to give the cabman extra when there was more luggage than would fill the part of the cab not occupied by passengers. No encouragement ought to be given to an extra charge for luggage on the footboard, which is not meant for luggage." Another curious case of definition is to be found in 70th Iowa, where it is held that the erection of movable iron cells in a jail is not "repairs." IN NOTES OF CASES. 'N State v. Moncla, Louisiana Supreme Court, July❘ 5, 1887, the court said: "The next exception was to the exclusion of the following question, propounded on cross-examination to the sheriff, a witness for the State: You have stated in your examination in chief that the accused fled from your custody and made his escape. Please state whether he did not afterward return to this place, Marksville, and without any further arrest by you or your deputies.' The judge says: "The accused was permitted to show the circumstances attendant on his flight, such as that he was very much excited at the time, and his mother and brother advised him to do it. Accordingly he made this proof. All this formed part of the res gesta. The alleged fact that some time after his escape he returned to Marksville and appeared on the public streets without further arrest, does not form a part of the res gesta, and was therefore inadmissible. The testimony showed that after escaping the accused went to Natchez.' We are compelled to hold that the reason of the court for excluding the testimony is not sound, and that the principle of res gesta has no application in this matter. Under the humane spirit | of modern law the weight attributed by the old common law to flight from justice as a presumption | of conscious guilt has been greatly diminished. It is now regarded merely as a circumstance, which though by no means strong enough by itself to warrant a conviction, yet may become one of a series of circumstances from which guilt may be inferred.' Whart Crim. Ev., § 750. Other circumstances explaining the flight, and tending to show that it was prompted by other motives than conscious guilt, may undoubtedly be proved. Wills Circ. Ev., §§ 89, 90; 1 Bish. Crim. Proc., § 1250. It appears however that the accused was allowed to In Robinson v. Missisquoi R. Co., Vermont Supreme Court, Sept. 7, 1887, where the granting part of a deed would convey a fee, but to the description of the land granted was added the clause "for the use of a plank-road,” held, that the last clause was a limitation upon the grant, and that only an easement was conveyed. The court said: "The language used in the granting part of the deed and in the habendum is appropriate, and that commonly used to convey the fee. The first part of the description of the premises, 'being a strip of land four rods in width across my land, and being the same land now occupied by the St. Albans and Richford Plank-road Company for their road,' is appropriate to an absolute grant. But the remaining clause, 'for the use of a plank-road,' unless properly descriptive of the premises, is such language as would naturally be used to limit or qualify the grant-to change it from a fee to an easement. The description of the premises granted is complete without this clause. This clause, in the original deed, is separated from the former part of the description by a mark of some kind, designed, evidently, either for a comma or a dash. This clause can have no force as descriptive of the premises conveyed, and no force at all unless as qualifying and limiting the grant. It is an important rule of construction, applicable to all written instruments, that every word and every clause shall, as far as possible, be given some force and meaning; and that in case construing the whole instrument one way meaning is given to every word and clause, while construing it another way some portion of the language used is rendered meaningless, the construction which gives force and meaning to all the language used is, as a rule, to prevail. This is upon the presumption that the party making the instrument did not use any language except what was necessary to make it speak the intention of the parties thereto. Again, when it is doubtful what the construction should be, resort to the circumstances surrounding the transaction may be had to enable the reader to understand and apply the language used. The language of the deed indicates that the grantee was already in the occupation of the premises granted. The only possible use to which the grantee could put the premises was for its plank-road, hence it would desire to purchase the right to so use it only. It was also natural that the grantor should desire to limit the grant, it being a strip of land four rods wide through his entire farm. The consideration of the deed, forty dollars, is quite inadequate for an absolute grant of three acres so situated as to sever the orator's farm. Under these circumstances we should naturally expect to find an easement rather than a fee granted. When language is found in the instrument making the grant, fitted to create the grant naturally to be desired by both parties, although not in the usual form of such a grant, it should be given its evidently intended force and effect. Keeler v. Wood, 30 Vt. 243. In making the conveyance a common printed blank deed was used. It was easier to write the limiting clause in the blank space left to be filled with the description of the premises, and at the close of such description, then to erase and insert it in the habendum. We think this clause was intended as a limitation upon the grant, reducing it from the grant of the fee to a grant of an easement for the use of a plank-road, all that the grantee cared to acquire, and all that the grantor would be likely to desire to part with." See Farnham v. Thompson, 34 Minn. 331; S. C., 57 Am. Rep. 59, and note, 63. In Dalay v. Rice, Massachusetts Supreme Judicial Court, Sept. 6, 1887, it was held that the owner of real estate abutting upon the street is liable to strangers who suffer injury from the dangerous construction or condition of a coal-hole in the sidewalk appurtenant to the premises, although they are let to and occupied by a tenant at will, if the defect existed at the time of the letting, and if the tenant was not bound by agreement with the owner to put the premises in proper condition. The court said: "It seems to be settled that if a landlord lets premises abutting upon a way, which are, from their condition or construction, dangerous to persons lawfully using the way, he is liable to such persons for injuries suffered thereupon, although the premises are occupied by a tenant, unless the tenant has agreed with his landlord to put the premises in proper repair. That the tenant may also be liable is not a defense to the landlord. The case which perhaps most nearly resembles this is Gandy v. Jubber, 5 Best & S. 78; same case on error, id. 486. The reasons why the Court of Exchequer Chamber recommended that the plaintiff consent that the proceedings be stayed do not appear in the report; but in 9 Best & S. 15, there is what purports to be the undelivered judgment of that court in the case. One question was whether a landlord, who has the power to determine a tenancy from year to year by giving notice, and who does not exercise it, is to be held as thereby reletting the premises. In the course of the argument in the Exchequer Chamber, Erle, C. J., said of the landlord's liability: 'If he lets the premises with a nuisance, all parties agree that he is responsible.' In the opinion published in 9 Best & S. 15, the grounds on which the Court of Exchequer Chamber differed from that of the Queen's Bench distinctly appear, as follows: 'We agree that to bring the liability home to the owner, the premises being let, the nuisance must be one which was in its very essence and nature a nuisance at the time of letting, and not something which was capable of being thereafter rendered a nuisance by the tenants, and that it is a sound principle of law that the owner of property receiving rent should be liable for a nuisance existing upon his premises at the date of the demise; but that wherein we differ is that a landlord from year to year, having the power of giving the ordinary notice to quit, and not giving it, is thereby to be held as reletting the premises, and that such forbearing to give notice is equivalent to a reletting.' The reason of the rule, that if a landlord lets premises in a condition which is dangerous to the public, or with a nuisance upon them, he is liable to strangers for injuries suffered therefrom, is that by the letting he has authorized the continuance of the nuisance. Pretty v. Bickmore, L. R., 8 C. P. 401, was decided on the ground that the tenant had covenanted to keep the premises in repair, and therefore the landlord could not be said to have given authority that the premises should be kept in a dangerous state. See Leonard v. Storer, 115 Mass. 86; S. C., 15 Am. Rep. 76. Gwinnell v. Eamer, L. R., 10 C. P. 658, fellows Pretty v. Bickmore. In Nelson v. Brewery Co., 2 C. P. Div. 311, it is expressly said that if the landlord lets premises in a ruinous condition he is liable to strangers. In Saltonstall v. Banker, 8 Gray, 195, 197, the decisions in Rich v. Basterfield, 4 C. B. 783, and in Rex v. Pedly, 1 Ad. & E. 822, are approved; and it is said that if the nuisance existed at the time of the demise the landlord is liable. See Todd v. Flight, 9 C. B. (N. S.) 377. In Jackman v. Arlington Mills, 137 Mass. 277, the landlord was held liable for the acts of his tenants in polluting the water of a brook by discharging into it the sink-water from the houses let; and the reason given was that the houses let were intended to be used by the tenants in the manner in which they were used, and that if the landlord did not retain the control of the water used by the tenants, he had by the letting authorized the use which the tenants made of the water. See also Owings v. Jones, 9 Md. 108; City of Peoria v. Simpson, 110 Ill. 294, 300; Irvine v. Wood, 51 N. Y. 224; S. C., 10 Am. Rep. 603; Durant v. Palmer, 29 N. J. Law, 544. An attempt has been made to bring the present case within the rule that if the nuisance is created by a tenant, or by a former owner who has let the premises to a tenant, a grantee is not liable for any injury that may result from the condition of the premises while the occupation of the tenant continues. If the defendant Savage had bought the premises subject to a lease to Breslin, who had continued in occupation under it, a different case would have been presented. But when the defendant Savage purchased the premises, and a deed was delivered to him by the mortgagee, pursuant to the |