MINING RIGHT OF SUPPORT-HIGHWAY-GAS MAINS -CORPORATION-UNINCORPORATED ASSOCIATION IN

CORPORATED.-Under the N. Common Inclosure Act, 44 Geo. 4, ch. 72, the N. Common road was by an award set out as a public highway, the act reserving to the Duke of L. his rights to the minerals. In 1874 a limited company without statutory powers laid gas mains under the road. In 1878 the N. Gas Act incorporating the Gas Works Clauses Acts, 1847 and 1871. incorporated the plaintiff company, and enacted that all the mains which were before the passing of the act the property of the limited company should be vested in the plaintiff company to the same extent and interest as the same were previously vested in the limited company, and might be held and enjoyed, maintained, altered, discontinued, removed, dealt with, and disposed of by them as they might think fit, and that they might lay down other mains as they might think proper, for supplying gas within the limits of the act. Subsequently, in consequence of the mining operations of the defendants, the grantees of the rights of the Duke of L., the road subsided. In

an action for the damage thereby caused to the plaintiff company's mains, and for an injunction, held, that the incorporating act put an end to the weak title of the limited company, and gave a new title affirmatively to the plaintiffs, and that the plaintiffs were entitled to support for their mains, and to judgment for the damage sustained. Q. B. Div., Dec. 20, 1882. Normanton Gas Co. v. Pope. Opinion by Field, J. (48 L. T. Rep. [N. S.] 666.)

WILL-DEVISE TO ONE WHILE UNMARRIED-DIVORCE. -A testator by his will devised freehold and leasehold estates to trustees upon trust out of the rents and profits arising therefrom to pay an annual sum to his son and his son's wife E. jointly, and if his son predeceased E., to E. "so long as she continues unmarried." Before his son's death his son obtained a divorce from E. He was now dead, and E. had not been remarried. On an application that the receiver might be directed to pay E. the arrears unpaid since her husband's death, and continue to pay the annuity, held, that the phrase "so long as she continues unmarried" was not equivalent to "during widowhood," and that, although E. was not a widow, as she was the "E." named in the will, and was unmarried, she was entitled to the annuity so long as she remained unmarried. Re Boddington, 48 L. T. Rep. (N. S.) 110; 22 Ch. Div. 597, and Bullmore v. Wynter, 48 L. T. Rep. (N. S.) 309; 22 Ch. Div. 619, distinguished. Ch. Div., April 3, 1883. Knox V. Wells. Opinion by Bacon, V. C. (48 L. T. Rep. [N. S.] 655.)

WILL-GIFT TO "HEIRS."-A testator gave real and personal estate to his executors, and after directing

that certain legacies should be paid out of the proceeds of the whole, proceeded: "Whatever portion of my effects shall remain in the hands of my executors or the survivor of them, or, etc. (sic), after the payment of the above mentioned legacies, I desire to be divided in the manner following, and giving two-thirds to the surviving sisters or sister of my wife or their heirs." held, that the gift to heirs being substitutionary, the statutory next of kin of deceased sisters took under it, and not the heirs as persona designata. Smith v. Butcher, 10 Ch. Div. 113, distinguished; Neilson v. Monro, 41 L. T. Rep. (N. S.) 209, followed. Ch. Div., March 12, 1883. Matter of Stannard. Opinion by Kay, J. (48 L. T. Rep. [N. S.] 660.)

ATTORNEY-RETAINER FOR MARRIED WOMAN-SUCCESSIVE FIRMS.-A., a married woman entitled to separate estate, and her husband, verbally retained a firm of solicitors consisting of R. and P. to act for A. and her trustee in litigation concerning A.'s separate

estate. The husband of A. was at the time, and was known to R. and P. to be, an undischarged bankrupt. R. and P. required and obtained a written retainer from A.'s trustee, who had not previously been a client of theirs. Pending the litigation R. retired from the firm, P. took G. into partnership, and P. and G. continued the business under the name of R., P., and G. The new firm delivered a bill of costs for the whole litigation, signed R., P. and G., and brought an action to obtain payment out of the separate estate of A. Held, that A. must be taken to have retained R. and P. on behalf of her separate estate, and made it liable for costs, as well for the work done by R. and P. as for that done by P. and G., the new firm being entitled to such costs as assignees of the old. Ch. Div., Feb. 26, 1883. Penley v. Anstruther. Opinion by Pearson, J. (48 L. T. Rep. [N. S.] 665.)

LEASE-LIABILITY TO OUTGOING TENANT ATTACHED TO LAND. An owner in fee of a farm entered into a parol agreement to grant a lease of it for seven years,

and the tenant entered into possession. The lease was to contain a covenant by the landlord to pay the tenant for his property in and upon the farm at the expiration of the term at a valuation, but it was never executed. Before the expiration of the term the landlord died, having devised the farm to his trustees for a term of 1,000 years upon trust to raise money in aid of his personal estate, for the payment of his debts, funeral and testamentary expenses and legacies, and subject thereto to the plaintiff for life, with remainders over. On the expiration of the term the plaintiff took possession and paid the outgoing tenant the amount of the valuation of his property on the farm, and not being able to find a new tenant, claimed to be paid the amount out of the testator's estate. Held, that the liability to pay the outgoing tenant was a liability attached to the land, and that the plaintiff, being in receipt of the rents and profits, was the landlord, and was therefore the person liable to pay the amount of the valuation. Held also, that the plaintiff had no claim for the money against the testator's estate, nor against the remaindermen. Ct. App., Jan. 22, 1883. Mansel v. Norton. Opinions by Jessel, M. R., and Lindley, L. J. (48 L. T. Rep. [N. S.] 654.)

CORRESPONDENCE.

THE ENDLESS REPORTS.

Editor of the Albany Law Journal:

It is impossible to say how many reports, in volumes varying from 500 to 800 pages, are printed annually in the United States. In this State there are over fifty volumes each year, let alone a continual outpouring of digests, text-books, glossaries, etc. Each volume is more voluminous than the last. Cases are first brought out in a daily, repeated in a weekly, a monthly, and lastly in an annual digestive form. We adopt a new code, and the old practice decisions are necessarily out of joint with it. A new series of practice decisions not affecting the merits of a question are produced; endless reports, endless litigation, the (pleasant at least to lawyers) consequence.

But there is, it seems, also a great tendency now-adays to prolixity in rendering decisions. A vast quantity of superfluous matter is apt to be introduced in opinions of judges which is worse than worthless. With all due respect to the bench, the matter of their decisions on appeal is seldom sifted and sufficiently condensed. The rule is sound that good condensation requires extra labor. Take the average New York

Court Appeal Report, what lack of any attempt at condensation' Not only in the reportorial resumé of facts on which the case rests, but in the opinions. And oftentimes what lofty elaboration of legal common places, what absurdities! To show that our position is not altogether far fetched, we select, purely at random, sentences from opinions in late reports, e. g.: "Did not the dead man have enough of advantage when he was allowed to reach out from his grave, and put into the middle of this trial his declaration in writing that he owned these bonds?" (85 N. Y. 641). Again, "who was Ver S. Moore? If Ver is to be held not to be a name but an abbreviation of some name, of what name? Is it the abbreviation of a mau or of a woman? It might be the abbreviation (sic) of Verplank, Vergil, Verrius, Verginus, or of other names which could be mentioned. The inference is ***that Ver S. Moore was a man," etc. Again, ib., we are informed that for several centuries, by common law, among all English-speaking people, a woman upon her marriage takes her husband's name " (85 N. Y. 449). But the inference is wrong, for "Ver S. Moore" is a southern lady, afterward, we are informed in the opinion, the wife of a clergyman. Another instance: "By this time the customer had gone, but Carter, with a reckless confidence in the strength of the boiler, sent two men to the shop for additional weights, and before their return, took hold of the lever, first with one hand, then with both, holding it down. On the instant the explosion occurred, scattering death and injury around." (Ib. 221.) The italics are ours. Of what use is this graphic description? Why are we lacerated with the tale of the rash Mr. Carter, who was too too inquisitive about a miserable steam boiler? The opinion on page 81 of same report is an example of extreme length, unnecessary length. In Mullally v. People, 87 N. Y. 367, the noble animal, the dog, is thus eulogized: "When we call to mind the small spaniel that saved the life of William of Orange, and thus probably changed the current of modern history (2 Motley's Dutch Republic, 398); and the faithful St. Bernard, which, after a storm has swept over the crests and sides of the Alps, starts out in search of lost travelers, the claim that the nature of a dog is essentially base, and that he should be left a prey to every vagabond who chooses to steal him, will not now receive ready assent." We might go on and cite dozens more of instances of, it seems to us, unnecessary verbiage. Life is too short to prepare, now-a-days, a perfect brief of authorities, embracing every known case bearing on a question. Would it not be well to condense opinions? And as well, study to respect precedents? Of the great tendency now-adays to neglect precedent we propose to speak in another article. PRACTITIONER.

JONES ON CHATTEL MORTGAGES.

A Treatise on the Law of Mortgages of Personal Property. By Leonard A. Jones. Second edition, revised and enlarged. Boston. Houghton, Mifflin and Company, 1883. Pp. xlii, 713.

We can only repeat, of this edition, the warm praise we gave the first, 23 Alb. Law Jour. 459. The work has been largely cited by our judges, and has become indispensable.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, October 2, 1883.

Order of the General Term reversed, and judgment entered on report of the referee, affirmed, with costsCraig, respondent, v. Town of Andes, appellant.-Judg. ment reversed; new trial granted; costs to abide the event Strong, respondent, v. Brooklyn Crosstown Railroad, appellant.-Orders affirmed with costsPeople, ex rel. King, appellant, v. Gallagher, principal, etc., respondent; Matter of Arbitration between the National Bank of the Republic, etc., appellants, v. Darrage, respondent.-Appeal dismissed with costsVictory, Commissioner, etc., respondent, v. Blood, appellant; Witouski, respondent, v. Paramere, etc., ap pellant; Fogg, respondent, v. Fisk, appellant; Cushman V. Leonard, trustee, etc., respondent, v. Knowlton, appellant. Appeals dismissed — Eldridge, respondent, v. Flagg, appellant; Metropolitan Concert Co., appellant, v. Abbey et al., respondents. Order affirmed - People, etc., respondents, V. Hovey, appellant. Motion for reargument denied, with $10 costs-Bridges v. Supervisors of Sullivan County.-Motion to advance cause denied, without costs--Cosgrove v. New York Central and Hudson River Railroad Company.-Motion for reargument denied, without costs-Yuengling v. Howe.

-Motion to amend remittitur granted, without costs-Brant v. Halbrook.-Motion to dismiss appeal granted, with costs-Winter v. Eckert.—Motion to withdraw appeal granted, without costs of appeal up to this time, and $10 costs of motion-Tallman v. Earle.-Motion to put cause on calendar as preferred, granted-Newcomb v. McCall.

The Albany Law Journal.

ALBANY, OCTOBER 20, 1883.

CURRENT TOPICS.

THE reception to Lord Coleridge at the Academy

of Music, in the city of New York, on the 11th instant was a brilliant social gathering. The guest was welcomed in admirable speeches by Chief Judge Ruger and Mr. Evarts, and replied in the most elaborate address that he has delivered in this country. A correspondent writes us: "Lord Coleridge's oration was probably as great as any he ever delivered. He took the audience by storm. And when you think what a learned, sedate, cautious, critical audience he had, that is the highest praise. His words will long live to do good both in England and America. His manner was most animated, polished and dignified; his gestures were forcible and appropriate; his intonation the most musical, sonorous and charming." We give a correct version of this admirable address in another column. Lord Coleridge's speeches have all been marked, not only by an absence of conventional flattery, but by a plain but friendly expression of wholesome truths. In the speech at the Academy, he disclaimed

any

admiration for our country on account of its great size or the colossal fortunes of many of its citizens. But what more especially concerns us as New Yorkers and as lawyers is the tone of the orator's remarks concerning codification. We particularly commend this portion of the address to the attention of that persistent little body of New York city lawyers who are standing in the way of general codification. And at the same time we commend to them the following which we have just run across in Paterson's "Liberty of the Subject:" "A petty State, having little to boast of, may well keep its laws, or what are called laws, hidden in obscurity; but a great country loses half its dignity and strength when it cannot in an orderly and methodical way give some account to all whom it may concern of the main reasons why its own social progress and the contentment of its citizens have been so well assured." Lord Coleridge however ought to bear in mind that on this subject England, like every other country, is the learner and follower of America. Codification and the simplification of legal remedies are the rightful and peculiar boast and pride of our State, and the New York Code of Civil Procedure of 1848 is the parent and model of all cognate legislation in every part of

the world.

definition of an action it seems to us would be the following: A proceeding instituted in a court of justice, having jurisdiction of the subject-matter in controversy and of the parties to the action, by a party complaining against a party defendant, to obtain the judgment of that court upon some right claimed by the plaintiff and denied by the defend

ant, and to enforce such judgment in due course of the law.'" The definition in our Code is perfectly admirable and complete, and the writer would obscure it by interjecting the non-essential of jurisdiction, and by general diffuseness and lack of point. An action is no less an action although the court may not have jurisdiction. Jurisdiction is not an essential of an action but only of the power of the particular court to hear and decide the action. The writer is as little successful as some others who have endeavored to improve the Code definitions and statements.

The ephemeral character of the greatest lawyers' fame is sadly illustrated in a passage in a recent address on the death of Judge Black, in which the writer says, in speaking of Chief Justice Gibson: "It is a just pride of the Pennsylvania bar that boasts of the possession of two such men, and in that regard, we fondly cherish their memories together. It belongs to the bar to take care of the fame of great jurists, as such; for here, in passing, I note as a curious fact apparently hard to under. stand that in our 'American Encyclopedia,' which purports to give, in its sixteen big volumes, with annual supplements, biographical sketches of all eminent Americans there is no mention whatever of John Bannister Gibson. Had he been a cleric who had ever written a pamphlet on a theological question, we may infer from the biographies generally throughout the work, a full account of him would have appeared." Chief Justice Gibson was one of the greatest judges that ever lived, of more use to his generation and posterity than forty of the average fiddle-D. D.'s conserved in the mausoleum of the American Encyclopedia.

An accomplished legal and literary scholar writes us that Schiller has the following, which he regards as better than Sir Walter Raleigh's rendering of the same idea:

"Remember, aye, the ocean deeps are mute,
The shallows roar;

Worth is the ocean; fame is but the bruit
Along the shore."

The same correspondent, in speaking of Lord Coleridge's quotation about the gift of liberty, doubts that the lines are Dryden's, and says: "The lines of Dryden which you doubtless had in your mind, I remember perfectly, and they are from his Palamon and Arcite, I believe, viz. :

The love of liberty with life is given, And life itself the inferior gift of heaven.'" Another correspondent points to the same passage, and says: "I should like to know if any one is at fault in this quotation."