POLLUTION OF STREAM-INJUNCTION.-An injunc tion will not lie to restrain a city from discharging sewage into a stream running through plaintiff's land lower down, and for emptying more than the natural flow of water therein, where, although the fish have been driven from the stream, and at times there is an offensive smell therefrom, not amounting to a nuisance, only surface drainage is allowed to run therein, and the small increment of water above the natural flow is never sufficient to cause an overflow. The pollution of the water by the usual impurities from streets is not a cause of action. The use of his land for streets, with the usual consequences to owners lower down upon the stream, would not exceed the common-law rights of an upper owner. Wheeler v. Worcester, 10 Allen, 591, 602; Merrifield v. Worcester, 110 Mass. 216, 220. See Middlesex Co. v. McCue, 149 id. 103. Equally little can the plaintiff complain of the increased discharge of surface-water into the stream. We do not say that no change of the water-shed on a large scale could give rise to a cause of action on the part of a lower proprietor. But a change which only slightly and occasionally enlarges the flow of a natural

stream within its capacity, and does not make it overflow, is not actionable. Jackman v. Arlington Mills, 137 Mass, 277, 283. Again, so far as appears, all the damage to the plaintiff, if any, was the necessary consequence of the laying out of the streets and ways from which the surface drainage came. If so, and if the statutes impose a greater liability than the common law for this damage, when so caused (Woodbury v. Beverly, 153 Mass.) the only remedy is under the statute. Flagg v. Worcester, 13 Gray, 601, 603; Wheeler v. Worcester, 10 Allen, 591, 603; Collins v. City of Waltham, 151 Mass. 196, 198. Sup. Jud. Ct. Mass., Suffolk, June 29, 1891. Bainard v. City of Newton. Opin- | step-daughters "die, the money shall be divided" ion by Holmes, J.

WILLS-VESTING OF ESTATE-LEGACIES CHARGED ON LAND-BOND OF EXECUTORS.-A testator gave the interest of $5,000 to his wife for life, and after her death the fund to be divided between his two stepdaughters, providing that in case of the death of either or both step daughters within ten years from the date of his will, his son was to have the use of said $5,000 by paying the interest to the children of deceased stepdaughter or step-daughters, and if said step-daughters "should die before the expiration of the above-mentioned ten years, at the expiration of the abovementioned ten years, in case either or both of the"

among their children. Held, while the collocation of words used by the testator in unnecessarily repeating the conditions attached to the payment of the $5,000 might import a contingent remainder, yet as the gen

eral scheme of the will showed an intention that the testator's widow and her daughters were to have successively the use of the $5,000, and that the principal sum should be divided equally between said daughters' children ultimately, this condition in the will attaches to the time of payment of the legacy only, and is vested instanter in the children of the step-daughters, the time of payment being postponed. (2) In constru ing wills of this class, two rules are to be observed: First, a remainder will not be construed to be contingent merely from the inaccurate and inartificial use of expressions importing contingency, if the substance and effect of the limitations afford ground for conclud

To

SALE-CONDITIONAL-ACTION FOR PRICE.-The pur-
chasers of a chattel gave a note binding themselves to
pay the sum stipulated absolutely and at all events,
title to remain in the seller until full payment of the
price, with the right to repossess himself of the chattel
for his own security; and it was further provided that
any payment, before resumption of possession, shoulding that they were not used with a view to suspend
be considered a payment for use, and that "nothing
shall constitute a defense or offset, or delay prompt
payment of this note at maturity." Held, that where
the note was not paid, the fact that the seller adver-
tised and resold the chattel, which he purchased for a
sum that left a balance still due on the note, will not
preclude his recovery of such balance from the pur-
chaser. It is true it was stipulated that any payment
made should be considered as "payment for use,'
," but
it was also stipulated that no cause shall constitute
a defense" of the promise to pay the money; and the
proposition that Dederick, by taking possession of the
press to make it available as security, surrendered or
abandoned or lost his right to go for the money still
due, is not maintainable. It rests on the view that
the contract was really a mere hiring for use, and that
the seller could end it by taking possession of the press
at any time, and treat any payment he had received
as hire or rent; and this view would be maintainable,
if regard be had to a single stipulation of the contract;
but "in determining the real character of a contract,
courts will always look to its purpose, rather than to
the name given to it by the parties." Hervey v. Loco-
motive Works, 93 U. S. 664; and see Hery ford v.
Davis, 102 id. 235, in which latter case the court dealt
with a contract substantially like the one before us,
and took the same view of its effect as we do of this.
The cases supporting our view are numerous. Many
are referred to in 3 Am. & Eng. Enc. Law, 426. Our
own are decisive in its favor. Duke v. Shackleford, 56 |
Miss. 552; Burnley v. Tufts, 66 id. 48. It would be a
most unreasonable interpretation of the contract to
hold that Dederick's taking possession of the press
was an abandonment of his claim to be paid what
had been promised, and not paid. There is no express
provision to that effect, and to give such effect to Ded-
erick's act is to cause a forfeiture of his right to be
paid in full, at all events, as promised by the buyer:
while the other view does justice to both parties, ac-
cording to their contract, by allowing the seller what
he was promised, and the buyer what was purchased,
and treating the press as it was intended to be, as a
security for the payment of the stipulated price. Miss.
Sup. Ct., April 20, 1891. Dederick v. Wolfe. Opinion
by Campbell, J.

the vesting; second, that a legacy will be construed to
be contingent, if clearly so expressed, however absurd
and inconvenient such a construction may be, and
however inconsistent with what may be conjectured
was the testator's intention. 2 Pow. Dev. 224.
these may be added a third rule, that where the ques-
tion is whether a legacy is vested or contingent, the
burden of proof is upon those who claim the latter
construction, and a remainder will not be construed as
contingent when it can be construed, consistently with
the testator's intention, to be vested. Dingley v. Ding-
ley, 5 Mass. 535. It is also a canon of construction
that words and limitations may be transposed, sup-
plied or rejected where warranted by the immediate
context or the general scheme of the will. A testa-
tor devised two legacies which vested instanter, but
were payable in the future, and a residuary devise "of
all his estate, real and personal,
* * after the

above” legacies "are paid or secured to be paid."
Held, as there had been no express trust to pay the leg-
acies, and as a general residuary disposition of the es-
tate was made, the legacies will be a charge on the
land. (3) Where legacies are " to be paid or secured
to be paid," and the time of payment is uncertain, and
may not be for many years, the executor's statutory
bond, which is limited to six years, is not a proper se-
curity. In Lewis v. Darling, 16 How. 1, the court
held that whether the legacy was a charge on the
real estate depended upon the intention of the tes-
tator, to be collected from the residuary clause
of the will; the rule being that, where the tes-
tator gives several legacies, and then, without cre-
ating an express trust to pay them, makes a gen-
eral residuary disposition of the
whole estate,
blending the realty and personalty together in one
fund, the real estate will be charged with legacies,
for in such a case the residue can only mean what
remains after satisfying the previous gifts. The
court further says that such is the settled law
both in England and in the United States, citing
Hill Trustees, 360. See also Bank v. Hays, 12
Fed. Rep. 663, and Rambo V. Rumer, 4 Del.
Ch. 9. U. S. Circ. Ct., Dist. Del., May 8, 1891.
Atmore v. Walker. Opinion by Wales, J. 46 Fed.
Rep. 429.

THE AMERICAN BAR ASSOCIATION.

THE
HE fourteenth annual meeting of the American,
Bar Association will be held at Boston on Wed-
nesday, Thursday and Friday, August 26, 27 and, 28,
1891.

The sessions will be held at 10 o'clock A. M. and 3 o'clock P. M. on Wednesday and Thursday, and at 10 o'clock A. M. on Friday, at Horticultural Hall, Tremont street.

The annual dinner will take place on Friday evening at the Parker House, which will be the general headquarters of the association during the meeting.

The members of the general council will meet on Tuesday evening, August 25, at 8 o'clock, at the Parker House.

The secretary is Edward Otis Hinkley of 215 North Charles street, Baltimore, Md., and the treasurer, Francis Rawle of 402 Walnut street, Philadelphia, Pa.

CORRESPONDENCE.

DELEGATES TO MEETING OF AMERICAN BAR ASSO

CIATION.

Editor of the Albany Law Journal:

Allow me to correct an error into which you seem to have fallen in your notice of the meeting of the American Bar Association, to be held the latter part of this month. The matter was not overlooked at the last annual meeting of the New York State Bar Association. Mr. Van Vechten, who was one of the delegates to the last meeting of the American Bar Association, after making his report offered a resolution, which will be found on page 143 of the fourteenth annual report, authorizing the president, upon the assent of any one member of the executive committee, to appoint not exceeding three delegates to any meeting of like associations. I received definite notice of the time of the meeting to be held in Boston only a few days since, and I intend making the appointments as soon as I can ascertain that the persons appointed will be able to attend the meeting. It seems quite desir

able that the New York State Bar Association should be present with a full delegation. Several with whom I have communicated on the subject have been obliged to decline on account of previous engagements. The appointments, I trust, will be made and lodged with our secretary before your next issue.

August 8, 1891.

Yours truly,

G. M. DIVEN,
President N. Y. S. B. A.

A CORRECTION. Editor of the Albany Law Journal:

There is a typographical error in the case of "In re Gehrig's Estate," as reported 44 Alb. L. J. 108, which seems to me important enough to correct, for it completely alters the sense of the sentence as used, while the correct word fully brings out the principle contended for by me as appellant's counsel, and decided. The error is on page 109, second column, twenty-fifth line from top. The sentence as printed is: "It may be observed that the very notion of a law, as furnishing a rule of government or of conduct, suggests performance as a characteristic, and does not involve the idea of change." For performance read permanence. Yours respectfully, RICHARD M. BRUNO.

NEW YORK, August 8, 1891.

ling mostly with matrimonial disturbances-March 4, 1891, a girl named Terhune and a boy named Mortom whose united ages are much less than forty, travelled to Kenosha and got married. Afterward the girl returned to her mamma and the boy to his papa. And now the little fools want to be divorced. The decree ought to include spanking.- - John Heilen married Barbara Heilen some years ago. She was a corn doctor, clairvoyant and fortune teller. Besides this, she threw hot water on her husband while he was in bed. Because of this and other indignities John asks Judge Horton for a divorce.-Caroline, married with Frederick Rose in April last, asks. a decree of separate maintenance because, she says, her Rose mistreats her and calls her bad names. - - Legal Advertiser (Chicago).

To the heat of the climate and malaria, we suppose, and the consequent declension of morality on the part of all connected with the administration of justice in India must be attributed the shameless profligacy in the matter of adjournments and postponements of trials that characterizes so many of our courts. The one virtue expected of courts of small causes is celerity of working. And yet we see that the deputation of gentlemen connected with trade that recently waited on the Lieutenant-Governor at Calcutta for the purpose of getting the court of Small Causes there punished for its misdeeds and generally reformed, complained of small causes being adjourned ten and even sixteen times, and taking nearly a year to decide! It is gratifying to learn that "His Honor, who seemed to be well posted in the details of the subject discussed, generally agreed that a reform of the procedure was necessary. He thanked the deputation for the free and open manner in which they had expressed their opinions, and promised to give the subject his best consideration." It would have been still more gratifying to learn that His Honor had promised to hang somebody, and to go home then and there and fetch a rope for the purpose. It is not the procedure that needs reform, but the judges who neglect their duty and care nothing for the cry of the suitors, i. e., the people at large.-Indian Jurist.

Any American who goes abroad this year will do well to visit a remarkable historical collection now to be seen in the German exhibition of London. This collection was made by a Franconian nobleman who had it set up in the town hall of Nuremberg. He spent years in making it. The central jewel, the Kohinoor of the collection, is one of the most awful graven images it ever entered into the heart of men to conceive. This is the world-famous Eiserne Jungfrau, the "Iron Maiden" of Nuremberg. This monstrous invention was an improvement in ferocity upon the brazen bull into which the ancient tyrant, after heating it red hot, was wont to thrust his naked victims. Many Americans have seen the Iron Maiden; all Americans ought to see her. The sight is an excellent tonic for young Yankees of both sexes suffering from overculture, and seduced into a fit of moonlit mediavalism by the picturesque and romantic attractions of such "quaint old towns of art and song as the city of Hans Sachs and Albert Durer. For the Iron Maiden was no ingenious toy devised to amuse the idle and frighten the thoughtless into good behavior. Clasped in her stifling embrace, pierced in all parts of the human body not absolutely vital by the sharpened spikes set into the steel valves which had closed upon him a living man, many a wretch yielded up the ghost in torments not to be conceived of adequately save by the imagination of an Edgar Poe. And this not by the edict of a despot mad with unbridled power, but in the normal course of justice, as justice was understood and administered during the "good old times."

The Albany Law Journal.

ALBANY, AUGUST 22, 1891.

CURRENT TOPICS.

matter how strong and influential, could possibly have. The fire of the English judges is scattering, and therefore less effective than our more concentrated shot.

But the remedies above discussed are but palliations of a situation which would be intolerable if there were no more radical cure. These deal only

ERHAPS the most prolific and not the least ju- with the volume of current decisions, which proba

Mr. T. B. Browning of Toronto, Canada, and not the least of his services to the bar of our country as well as his own is his article on "The Publication of Case Law," in the last number of the Canadian Law Times. As is well known to our readers, this is a subject on which the editor of this journal has "views," and we are glad to find the views of this vigorous Canadian writer in substantial harmony Mr. Browning pleads for the official publication of all current decisions of courts of last resort, contending that these decisions are even more authoritative and more pregnant with consequences than public statutes, which are published by the State as a matter of course, while the decision of the court which breathes into a statute the

with our own.

breath of life and gives it substance and meaning
may by the whim of a reporter remain unpublished.
And the chief value of decisions being to serve as
precedents for future decisions, as foundation stones
on which to rear the structure of legal principles
yet to be developed, the writer contends also that
no man, no matter how learned in the law and how
gifted with judgment, can safely be intrusted with
the task of selecting and determining which of the
decisions of the courts shall be published to serve
as such precedents for the time to come, and which
shall be suppressed as of no value. He too laments,
as we have so often done, "the bulkiness of case-
law, its frequent repetitions, useless aggregations of
fact and general unwieldiness." But his remedy is
not to reduce the number of reports by any ar-
bitrary process of discrimination and rejection, but
to render the lawyer's task in the examination of
authorities more sure and easy by improved head-
notes and better digested digests. We would add
to these recommendations the suggestion that coun-
sel's briefs are properly no part of the report of a
case, and that, if preserved at all, they should be
reduced to a mere skeleton, with citation of only
such cases as are actually in point. Our views on the
subject of dissenting opinions have frequently been
expressed, but our English brethren are greater sin-
ners than we are in that respect. And why English
judges should pile "Pelion upon Ossa" by heaping
up concurring opinions, we must confess ourselves un-
able to understand. Our American practice of a |
single opinion, expressing the views of the majority
of the judges, and by open discussion or simple ac-
quiescence becoming the opinion of the court, is far
better. It gives to the words of the learned judge
by whom it is written the added weight of his asso-
ciates' learning and authority, and thus acquires a
weight which the opinion of a single judge, no
VOL. 44 No. 8.

our reach. The difficulty lies not here, but with the monstrous mass of precedents, numbering thousands of volumes, already accumulated, and which the practitioner must read as he runs. The relief demanded is relief from this burden, and it is to this that the reformer of the common law must first address himself. Two methods of relief are suggested by the author of the article referred to-first, the republication in condensed form, and with the omission of obsolete matter, of the older case law, and, second, codification. We have recently (44 Alb. L. J. 23) commended Sir Frederick Pollock's series of "Revised Reports," which will, when completed, give the law of six hundred and twenty-seven volumes of existing reports in fifty volumes; and it is easy to see how, by a periodical revision of the case and on the lines of this experiment, the lawyer's law of England and the United States, in the spirit labor in dealing with the mass of precedents upon diminished. But left, as it probably must be, to which his work must be based may be greatly private initiative, with a very indifferent prospect of pecuniary reward for the enormous labor inthe problem is likely to be very extensively applied. volved, not even this very inadequate solution of

Admirable and praiseworthy as it is, we do not look for a speedy repetition of Pollock's heroic experiment. There remains, then, only one possible. measure of relief, and that is to enact the law of these innumerable precedents into a code.

We do not propose to disturb the serenity of the lawyer's vacation by projecting into his consciousness a code discussion. But we cannot refrain from reminding our Canadian brother that his "New York friends," who "in codifying their system would do the work so completely as to be independent of amendment, and never call for 'tinkering' more," exist only in his vivid imagination. We know something of the men who are engaged in the struggle for a reformed legal system in this State, but we have yet to find one who believes that "the rule now established shall prevail to the latest generation," or who would "abolish our doctrine of precedents," or compel our judges, "under penalty, to decide every case entered in court according to the Code, whether the case be provided for or not." It is not necessary to worship the common law, and to regard it, with all its enormities, as a thing too sacred to touch with reforming hand, in order to appreciate the advantages of our system of law, based on precedents, over the rigid, inflexible systems of continental Europe that have never

tants, sets the law of the land at open defiance, and now asserts a claim to international recognition." "It is named Lynch Law," says our self-constituted,

known the method and the spirit of the common law. This spirit and method - the altogether and only admirable features of our system will still remain and, in undiminished vigor, govern the fur-righteous judge, and it has the same title to be ther development of our legal system. The man if such there be - who believes that the codes for which we are contending in this State should, or ever would, impose upon us a cast-iron system and method, like that of the Code Napoleon, knows very little of the issues of that contest and has no part in it. But our author is sound on the main question, and we shall therefore have less difficulty in overlooking his blunder relative to the movement for reform among us. He declares codification to be the only effectual mode of dealing with the problem of case law, and says: "Since Macaulay reduced the English criminal law of India to definite expression, codification has earned the support of the foremost English lawyers, and is rapidly recasting our whole system;' " and he gives this summary view of the progress of the movement: "Codification has passed beyond the pale of mere experiment. India would not willingly go back to the codeless mass of precedent she enjoyed fifty years ago. Several States in the adjoining Union have made distinct efforts toward codification. The mother country codified her law of bills and notes in 1882, and has lately subjected partnership to the same ordeal. Several other codifying bills await but the subsidence of the Irish fever to be enacted. Last year Canada took her first step in the new movement. The minister of justice promises a codification of the criminal law for next session. In course of time, no doubt, Mr. Mowat will apply the same method to property law and civil rights. Face to face with fact, the new departure has proved its usefulness; its success is no longer open to question."

Never was there a juster proverb than the modern sentiment that an indictment will not lie against a whole people. Perhaps there is in the economy of nature no more astonishing spectacle than that of a private individual summoning a foreign nation before the bar of his judgment and summarily condemning it for high crimes and misdemeanors. Our readers will be interested to learn that we, the people of America, have been thus summoned, tried and convicted by Mr. N. J. D. Kennedy, of Edinburgh, Scotland. Ours not to reason why, ours not to make reply, ours but to do and die! So into the valley of death, into the mouth of hell, into the awful presence of Kennedy, have we been swept by inexorable fate, and there has our doom been pronounced. But if the American people, not having the fear of the Scotch jurist, but rather of God, before their eyes, would know the head and front of their offending, it is this: they have made Judge Lynch and his court the capstone of their judicial system. "In several of the States there prevails a higher, or at least a stronger law" than that of the text-books, "found in no Constitution, formed by no statute, on which Kent, Story and Wharton are silent, which is implicitly obeyed by the inhabi

called law that devil-worship has to be called religion." And then he goes on and gives a sensational and highly-colored account of the recent orgie of crime at New Orleans, most of the facts of which were taken from an article in the Revue des Deux Mondes, and proceeds to the easy and happy conclusion that the state of affairs there disclosed is characteristic of the whole of this savage country, and that in all of the United States there is observable a well-defined tendency "toward erecting the casual will of any temporary majority into a standard of right and wrong." He conclusively proves the truth of this conclusion by citing the case of the martyred Lovejoy (A. D. 1836), of Joe Smith, of blessed memory, and two sensational newspaper accounts (never believed, and both afterward disproved) of an alleged thief who was dipped in petroleum and burned to death, and of a young girl who was stripped entirely naked and tied face downward on a log and whipped" to death, for the crime of marrying a clergyman against the wishes of his daughters. He cites certain veracious newspaper statistics also, to show that in the five years from 1884 to 1889 "five hundred and fifty-eight persons were executed by the law of the land, while nine hundred and seventy-five met death at the hands of Judge Lynch, sixty of these in one county within less than two years." Now we presume that no one will suspect us of undue partiality for the mob which slaughtered the hapless victims of the popular suspicion and wrath in New Orleans last winter, and we have never been accused of being partizans of the eminent but arbitrary judge whose dominion is here criticised, but we do desire, in a respectful but most emphatic manner, to protest against the style of criticism in which the obscure writer of the article in question has indulged. Indeed it is a matter of some surprise to us that the Juridical Review, a journal of recognized standing, should have admitted such a ridiculous production to its columns. Surely something is due, even in a Scotch law magazine, to the sense of humor of its readers.

The Indian Jurist calls attention to a recent decision of the English Court of Appeal, which promises to seriously modify the accepted doctrine of remedy by injunction for enticing away a servant. The case is that of Whitwood Chemical Co. v. Hardman, and the facts were as follows: The defendant was manager of plaintiffs' business, and was under agreement to give his whole time to their service. While so employed he was induced to become a director of a rival company in the neighborhood, whereupon plaintiffs applied to the court for an injunction restraining him from so doing. The writ was issued, but an appeal was taken, and the Court of Appeal said that this went further than any previous decision; that defendant had never contracted not to set up a rival business, and that the