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self the risk of the possible consequences of such changes in the grade of the street as may become necessary for the public convenience and safety. Raising the grade of the street, as was done in this case, and with the consequences alleged, is not a taking of plaintiff's property for which, under the Constitution, compensation must be made. The injury complained of is merely a consequence of the exercise of a legal right which the public acquired, and to which plaintiff's land became subject when the land was taken for a street. Whatever taking there has been was complete when the easement was first acquired. The constitutional provision is not applicable to the case. Burritt v. New Haven, and Callendar v. Marsh, supra. It is claimed that certain provisions of the city charter, providing for ascertaining "the amount of all damages occasioned to any private property by reason of any public works or structures," should be so construed as to sustain a right of recovery. We find no reason to so construe the act. These terms of the act were not employed for the purpose of conferring a right to compensation where none existed before, but merely with reference to providing a method of ascertaining the compensation to be paid for such taking of or injuries to property as, under the existing law, entitled the owner to compensation. As we understand the allegations of the complaint respecting injury from water coming upon plaintiff's property, the facts are in substance that before the grade of the street was changed the sewers and gutters carried the surface water from the premises in the vicinity of this lot to the northward and into the Mississippi river; but that these gutters and sewers being filled by the raising of the street, the surface water from the territory south of this property is left to flow over plaintiff's land as it naturally would in the absence of any artificial means of carrying it off. The city is not liable for failure to provide a means for carrying off this surface water (Lee v. City of Minneapolis, Alden v. City of Minneapolis, O'Brien v. City of St. Paul, supra; 2 Dill. Mun. Corp. (3d ed.) 1039 et seq.), and after it had once made provision which accomplished that result by the gutters and sewers of this street, upon the grade first established, it was not liable for failure to provide new means of accomplishing that end, when from the change of grade the old aqueducts became useless. Henderson v. City of Minneapolis. Opinion by Dickinson, J.

[Decided July 19, 1884.]

for the next three years at least, from filling any judicial position. Their acts in so contributing were certainly not illegal then, and to now declare it to be an offense disqualifying them from filling judicial positions would be an ex post facto law of the worst sort. The principle of the act is undoubtedly good, but the section referred to should be so amended that those lawyers who contributed to the legitimate expenses of the last campaign, and also of the two preceding it, should not be debarred from being candidates for a judicial position for the next three years to

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A Treatise on Contempt, including Civil and Criminal Contempts of Judicial Tribunals, Justices of the Peace, Legislative Bodies, Municipal Boards, Committees, Notaries, Commissioners, Referees, and other offices exercising judicial and quasi judicial functions, with Practice and Forms. By Stewart Rapalje. New York, 1884. L. K. Strouse & Co. Pp. 273, xivi.

The subject of this book is one which the active practitioner may be called upon at any moment for advice. At any point along the line of the progress of a case the question of "contempt " is apt to crop out. And now instead of having to wade through digests, and volumes of reports, with a feeling of assurance he can turn to the above, and find, as the author says in his preface, "the law as laid down in the books." Would that judges would apply the same law. The work is supplemented with appropriate forms and amply indexed.

CORRESPONDENCE.

POLITICAL CONTRIBUTIONS BY CANDIDATES FOR

JUDGESHIP.

Editor of the Albany Law Journal:

In your New York letter, published in your issue of the 24th inst., is a notice of a proposed bill to prohibit contributions for political purposes from judicial officers, or candidates for judicial offices. One section of the proposed bill requires every person elected to hold the office of judge, before assuming said office to file in the office of the secretary of State an oath to the effect that he has not within three years prior to the taking of such oath paid any assessment or contribution for political purposes.

As in this section of the State, pretty nearly all of the members of the bar took part on one side or the other in the recent presidential campaign, and contributed of their funds thereto, the passage of this section in its present shape would disqualify them all

THEA

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, Feb 3, 1885:

Order of General and Special Terms reversed and proceedings remitted to Special Term to appoint commissioners--In re Application of the Union Ferry Co., etc.-Judgment affirmed - People, respondent, v. Alfred F. Vedder, appellant.-Judgments affirmed with costs-In re Will of Catherine Harder, deceased, Julia E. Houghkirk, administratrix, respondent, v. President, etc., of the Delaware and Hudson Canal Co., appellant; Foster B. Moss, exr., appellant, v. James Hasbrouck and others, respondents.-Judg meut affirmed, on ground that there is no competent evidence of the execution of a will, without costs to either parties-In re Probate of Alleged Will of John Russell, etc.. -Motion to amend notice of appeal denied, with costs-Catherine C. Mc Donald, respondent, v. Frederick Sutor, appellant.

The Albany Law Journal.

IN

ALBANY, FEBRUARY 14, 1885.

CURRENT TOPICS.

it now makes our criminals worse, our home righteousness would be irresistible. Russia finds this process of forcing Nihilism in her universities highly successful. And if life among the heathen should kill off our exiled criminals as fast as it does our missionaries, whose average life abroad is three and one-half years, we could have the satisfaction of

a recent address before the Illinois State Bar knowing that though they perished on a foreign shore it is in a good cause." This temporarily stuns us. If it is sarcasm it is not without merit; if it is ate it; but if it is serious, we should simply answer a joke, although it is rather robust, we might tolerthat every nation is bound in fairness to "wash its dirty linen at home."

Association, Prof. Van Buren Denslow uttered the following very forcible and novel sentiments concerning the treatment of criminals: "They should be sent where they can get all the barbarism they want. This advice is so old that it seems new. In Job, exile to an island is a familiar idea. All nations have practiced it until recently. England started her empire in America and in Australia by it. We are maintaining fifty public nuisances, monasteries of malignity for the more complete eradica. tion of virtue in the depraved than is otherwise possible, filled with 50,000 convicts who to our civilization are mischievous. To Stanley's new State on the Congo, where the conditions of sensual existence are easy enough for the most incompetent, they would be an invaluable help, industrial missionaries, better than missionaries, for being more nearly like the rogues among whom they would be sent, the two would better understand each other than either of them now understand the missionaries. We spend vast sums of money and months of time and learning in litigating the question whether a man is a criminal or a lunatic. In fact, the question is immaterial. Both need nearly the same treatment, viz.: easy conditions of physical support by light labor, freedom as nearly as possible from all restraint, and especially from the highly complex restraints of civilized society; plenty of play and amusement; in fact, just the conditions which asylums and penitentiaries do not supply. Especially the criminal needs his wife and child, which the penitentiary takes away. When the relatives and friends of criminals receive letters from their convict friends in Africa advising them that they are doing far better there than they ever could here, and would not return if they could, convictions of crime will be easy and crime will diminish, because the persons who now constitute the criminal class will be drawn off and usefully employed. During our war crime ceased throughout the country, because the war created a demand for the criminal and made him useful. Colonizations of criminals will do exactly the same thing. I would like to see the treatment which we apply to missionaries and criminals exactly reversed by sending the criminals to the heathen and placing the missionaries under the operation of that great forcing process, the penitentiary, of course with such changes in the nature of the institution as would adapt it to its new inmates, but adhering to the principle that righteousness, like crime, is best cultivated by gathering large quantities of it together in one spot. We should then be intensifying piety at home as we now intensify crime. would bring out our missionaries as much better as Vol. 31 No. 7.

If it

A correspondent of the Central Law Journal writes judges of delivering opinions seriatim: "It is an as follows, concerning the habits of the English intolerable nuisance, after one judge has exhausted the case, to have another take it up, and go over all the points the first has made, and add a word or two by way of illustration, and agree with the first. It gets worse and worse when a third and fourth go through this same formula. We have to pay for these tautological reports. Our periodicals follow suit in this stupidity. They usually publish the opinions of all the judges, which are generally as much alike as two peas. Life is too short to read all this matter." This is quite just. It has often occurred to us, but it never occurred to us to say it, because our hands have been full in correcting the habit however is peculiar to the English bench. bad habits of our own judges. This particular bad The superfluity of opinions may be endured up to light or turn of expression that gives something like the house of lords, for there is usually some new variety to the unnecessary performance. But when it comes to the house of lords there is not a single alleviating characteristic, unless may be the recent poetical quotations indulged in by Lord Fitzgerald. How much better it would be if one judge should pronounce the opinion, and the others should content themselves with saying "ditto," or "me too.",

We recently called attention to the English mangling of Mr. Bigelow's work on Torts, by omitting all the American cases. Now a Mr. Grigsby has laid sacrilegious hands on the ark of Story's Equity Jurisprudence, under the pretense of editing it. The Law Journal says of it: "An English edition of this American legal classic will be received with much interest. The first question which the reader will ask himself is, upon what principle has the editor proceeded? The work might have been done in two ways. The text of Story might have been looked upon as sacred, whether it professed to be founded on English or American cases. view, the last edition by Story himself would have been printed entire, with comments by the editor either in the form of notes or bracketed interpolations, with the object of showing either that Story's

In this

law is the law of England at the present day or that it is not, and if not, why not. This we imagine is the ideal way of editing the book. Mr. Grigsby perhaps was deterred from following it by practical considerations. It might have required more space than was available, or might have been snpposed unsuitable in that form for the practical English lawyer. We do not think he or his publishers ought to have been so deterred, but such is the case. other mode of editing the book would have been to re-write it, using Story where it was considered convenient. This probably was considered as effacing Story too completely. The third and worst

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An

mode of editing has been adopted—namely, by omitting such part of Story as is borrowed from American cases, reproducing so much of him as is based on English cases, and putting on the top of all the subsequent English cases and statutes. The result of this compromise is mixed. We have neither an effective treatise on equity as now recognized by English law, nor have we a full exposition of the views of Story." It would be much fairer to steal Story's work without credit than to misrepresent or castrate it.

The spirit of civil service reform seems to have gone mad in Virginia. Last winter the legislature enacted as follows: "It shall not be lawful for the judge of any court, the superintendent of public instruction, any superintendent of schools, the superintendent, manager, or any employee of any asylum or State institution of learning, actively to induce or procure, either directly or indirectly, or to attempt, either directly or indirectly, to induce or procure any qualified elector to vote in any election for any particular candidate, or in favor of any particular political party, or to vote against any particular candidate or against any particular party. It shall not be lawful for any of the officers or employees, mentioned in the foregoing section, to participate actively in politics; and making political speeches, or the active or official participation in political meetings, shall be deemed to be an active participation in politics, within the meaning of this section." A school superintendent was convicted under this act of making a political speech, and on his appeal the Court of Appeals of Virginia has recently decided the law to be unconstitutional. The Independent very justly observes: "An office-holder has as much right actively to participate in politics. as any other man. He may, if he chooses, make speeches on political questions, attend political meetings, and seek to influence the action of his fellow citizens in respect to candidates and parties; and any law making such conduct a misdemeanor is in conflict with his fundamental rights of citizenship, and quite as bad as the old 'blue laws' of other days. If an officer may be thus restrained by a legislative statute, why may he not be equally restrained from voting according to his sentiments? If he may vote as he thinks, and thus influence the

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The family of the late Secretary Folger have presented his legal scrap-book and common-place book to the editor of this journal. It is an extensive and very curious collection, mainly consisting in manuscript slips, sometimes several deep, written without erasure or blots, in a very legible hand, and all accurately indexed. The collection was principally formed while Mr. Folger was on the bench of our Court of Appeals. He had alluded to it in correspondence with the editor, and had frequently made extracts from it for this journal.

The book contains two unfinished articles for this

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journal, one on "Names" of which there are many singular examples in the collection — and another on convicts earning deductions from their term of sentence for good behavior. It even contains the last piece of blotting-paper used in the book. It is a striking evidence of the learning, research, patience and order of our lamented chief. The editor feels greatly distinguished by being made the recipient of this precious legacy, and when he has done with it, and with all other earthly affairs, will deliver it to our Court of Appeals for preservation among its archives.

The New York Mail and Express, with its weekly edition of January 29th, sends out a supplement of Code proposed by Mr. Field. This is an opportune eight pages, containing a full reprint of the Civil publication, bringing the proposed body of our laws before the laymen of the State, and giving them the opportunity to see and judge for themselves. It is the privilege of the people to say whether they will have their laws written, or whether they will have them floating vaguely in the discretion or indiscretion of a few judges. The obstructionists talk about the dangers of adopting this Code because it has been hastily prepared. It has been in preparation for more than a generation. Very few but lawyers have ever seen it. Now let the people see how simple a thing the statutory enunciation of a principle may be, when it is not made to minister to the interest of a chosen body of interpreters.

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opposite to the banner. A rope led from one corner of the bottom to an awning post on the sidewalk, and one running from the other corner of the bottom was fastened to the sill of a window of a house. The jury found that the banner was an object likely to frighten horses ordinarily gentle and well trained. The banner had been up a considerable time. In an action by the plaintiff to recover damages sustained by being thrown from his buggy while his horse, which had been frightened by the banner while passing under it, was running away, held, that the defendant was liable. The court said: "The argument presented by the defendant is this: That it is not the duty of a municipal corporation to remove objects suspended over the street, fastened to supports wholly outside of the street, if they are elevated so high as not to actually obstruct the use of the road-bed or sidewalk. In this State the proposition, as stated, has never been approved by any reported decision, nor have I been able to find any rule or authority which supports the argument. I think the doctrine contended for was repudiated in Hume v. Mayor, 74 N. Y. 264. In that case the erection complained of as an obstruction to the street was an awning made of a permanent roofing of boards over the entire sidewalk, resting against the building and supported on the outer line by wooden posts standing in the ground, near the curb-stone, and was used wholly for private purposes. was held to be an unauthorized obstruction, or an encroachment upon the street, and the city was held liable to a person injured by its fall, for the reason that it was the duty of the city to remove it after notice of its erection. In the opinion of the court, no point was made of the circumstance that a part of the structure was supported by a post standing | in the street. The court referred to several Massachusetts cases, with approval, where hanging objects were supported by fastenings in the face of the buildings which were standing on the line of the street, which were held to be unlawful obstructions. The cases to which I refer are, Pedrick v. Bailey, 12 Gray, 161; Day v. Inhabitants of Milford, 5 Allen, 98. The court, in commenting on these cases, said they are precisely in point upon the question whether such a structure, if in a dangerous position or condition, is a defect in the street, which a municipal corporation, in pursuance of its general duty, is bound to remove or repair. It has been repeatedly held that it is the duty of a municipal corporation to remove objects deposited upon the streets, the natural effect of which is to occasion accidents, frightening horses of ordinary gentleness, although the objects were placed wholly outside of the traveled part of the road-bed. In Eggleston v. Columbia Turnpike Co., 18 Hun, 146, the court remarked: The more common causes of injury and liability are structural defects or means to repair the road-bed; but a road may be also rendered unsafe, with consequent liabilities therefor, by unsightly objects placed or permitted to remain upon it, which are calculated to frighten animals employed thereon.

See also Sherm. and Redf. Neg., § 388; Morse v. Richmond, 41 Vt. 435; Winship v. Enfield, 42 N. H. 199; Dimock v. Suffield, 30 Conn. 129; Bennett v. Lovell, 18 Alb. Law. Jour. 303; Harris v. Mobbs, id. 382. We are unable to discover any sensible reason for holding that an object permanently suspended directly over the travelled part of a highway, although fastened to supports outside of the limits of the same, is not an obstruction to travel, if it naturally tends to frighten horses of ordinary gentleness. Such an object drives travel from the street over which it is suspended, because discreet persons will avoid the risk and danger incident to an attempt to pass under the same. It endangers travel and makes it perilous to all travellers riding in conveyances drawn by horses. Such an object placed in a place so conspicuous as this banner was, within the plain sight of horses, is to be distinguished from objects which are suspended over sidewalks and fastened to the face of a building, like a sign or a bracket fastened in the face of a building, on which traders display their goods, or a show-case standing in front of a store. In many of the cases cited the argument is rejected that a road-bed can only be rendered defective by something in or upon the road itself, as being narrow and unreasonable. See Norristown v. Moyer, 67 Penn. St. 365; Grove v. City of Fort Wayne, 45 Ind. 429; S. C., 15 Am. Rep. 262."

In Pilgreen v. State, 71 Ala. 368, it was held that when goods are forwarded through an express company, by instructions of the purchaser, marked “C. O. D.," the carrier is the agent of the purchaser to receive the goods from the seller, and the agent of the seller to collect the price from the purchaser; and the sale is complete when the goods are delivered to the carrier. The court said: "Upon all sales of specific goods in the possession of the vendor, the contract is complete when the buyer and seller agree; the property in the goods then passes to the buyer, and the risk of loss by accident, or from any other cause than the fault or negligence of the seller, is cast upon the buyer as an incident of ownership, though actual possession may not pass, and he may not be entitled to it until he pays the price, or performs some other like stipulation. 1 Pars. Cont. (6th ed.) 525. An illustration given in some of the books is, if a man sells his horse for money, though he may keep him until he is paid, yet the property of the horse is in the bargainor or buyer.' When buyer and seller are distant from each other, the delivery of the goods to a carrier by the seller, in accordance with the specific request of the purchaser, is a delivery to the purchaser. 1 Pars. Cont. (6 ed.) 532; Benj. Sales (3rd Am. ed.), § 181. Applying these settled rules of the law of sales of personal property to the facts, the transaction cannot be located at Columbiana. All the dealings between the buyer and the seller were at Calera. There the offer of the buyer was received, accepted and acted upon, and there every act was done, which it was intended the seller should do.

The general property in the thing sold there passed Common Pleas would order the release of the said to the buyer, by the delivery to the carrier of his prisoner. The court said: "The questions involved own appointment, though he could not entitle him- in the determination of this case are new. * * * self to possession until he paid the price to the carThe question is therefore one of comity between rier. The carrier was his agent to receive the thing the State of New York and the State of Pennsylsold at Calera, and was the agent of the seller to vania. Every sovereign State is independent of receive the price. It would have been a neglect of every other in the exercise of its judicial power, and duty, as a collecting agent, rendering the express one of the purposes of this judicial power is to puncomyany liable to the seller, if there had been a de- ish all offenses against the municipal laws of the livery of the whiskey without payment of the price; State, by whomsoever committed, within its terriand if possession had been wrongfully obtained, it tory. This independence and sovereignty of the | may be, the seller could have reclaimed it. The several States exists as truly as does the independgeneral property however passed to the buyer by ence and sovereignty of the United States from that the delivery to the express company at Calera; the of a foreign State or sovereignty, subject only to risk of loss then passed to him; though there may the powers expressly conferred by the States upon have remained in the seller a special property, the general government. It follows from this that and though the buyer could not, without the pay- there is no rightful authority or power on the part ment of the price, entitle himself to the absolute of one State to invade the territory of another State property and to the actual possession. In law,' as for any purpose whatsoever, except it be given by is observed by Mr. Benjamin, 'a thing may in some the Constitution of the United States. And the cases be said to have in a certain sense two owners, power to extradite fugitives from justice from one one of whom has the general, and the other a spec- State to another is expressly given by the 4th arial property in it.' Benj. Sales, § 1. And this oc- ticle, section 2, Constitution of the United States, curs in sales of personal property, when the bargain and the mode regulated by the act of Congress of is struck, and the payment of the price is intended the 12th of February, 1793. But the facts in this to be simultaneous with the delivery of possession. case show that the prisoner was not brought into The seller has a lien on the property for the price, our jurisdiction in pursuance of the mode thus reguand the right of possession until it is paid. A sale, lated by law. That the manner of his arrest and the which will be in violation of the statute under which means employed to bring him out of the State of the conviction was had, must, within the designated New York and within the State of Pennsylvania locality, pass the title; a sale made in a different constitutes the crime of kidnapping at common law locality, where the liquor is set apart and delivered will not be denied; that it was in express violation to the purchaser, or to a carrier for him, passing of the statutes of the State of New York, punishing title, is not within its words or spirit. Garbracht v. the crime of kidnapping (vide Penal Code of Commonwealth, 96 Penn. St. 449; S. C., 42 Am. Rep. New York, sec. 211), will not be disputed; that it 550." This is contrary to Baker v. Bourcicault, 1 would be so held and construed by the courts of Daly, 28. The Supreme Court of Vermont stand that State under the statute cannot be doubted, equally divided on the question. We believe the since the decision in the case of Hadden v. People, Alabama doctrine to be wrong. 25 N. Y. 373. If the power to surrender the prisoner was vested in the executive of the State and he

In Morton's case, Pennsylvania Common Pleas, Dec. 1884, 16 W. N. C. 395, a citizen of New York committed a criminal offense in Pennsylvania, and fled into the State of New York, whence he was by artifice and force brought back into Pennsylvania, and arrested, and after hearing upon habeas corpus was remanded by the Court of Common Pleas to the custody of the sheriff; thereupon the governor of New York formally requested the governor of Pennsylvania, if consistent with his ideas of justice and executive power, to cause the release of the prisoner; and the governor of Pennsylvania, in a communication to the president judge of the said Court of Common Pleas, disclaiming executive power to order such discharge, and recognizing the power of said Court of Common Pleas to act in the premises, requested the said president judge to cause the release of the prisoner. Held, that in the exercise of the undoubted power and discretion of the Court of Common Pleas, and in the exercise of that comity, which does now and ought always to exist between adjoining State in this government, the Court of

refused to deliver him, no legal power exists anywhere to compel him to do so, even if he were a fugitive from justice. Commonwealth v. Dennison, should refuse to release the prisoner upon the demand of the executive department of the State of New York. No power but that of force and war could compel his release. This therefore brings us to face the importance of the question, shall this prisoner who stands indicted for violation of law within our jurisdiction be set at large, only from considerations of utility and mutual convenience of the States of New York and Pennsylvania, ex comitate ob reciprocam utilitatem. We are not wholly without precedent however. In Dow's case, 6 Harris. 37, Chief Justice Gibson, a greater judge than whom never lived, said, 'Had the prisoner's release been demanded by the executive of Michigan, we would have been bound to set him at large.' It was not shown nor alleged in that case that any law of Michigan had been violated. Indeed it is a question whether the prisoner, Dow, was within the ter

24 How. 66. And the same we claim is true if we

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