possibility of the Court of Appeals not sanctioning this very strong proposition. Indeed, it has already decided (Story's Case, 90 N. Y. 122, and Lahr v. The Met. El. Ry. Co., 104 id. 268) that the "easement" of an abutting owner in a street, "is an interest in real estate constituting property within the meaning of that term as used in the Constitution of the State, and requires compensation to be made therefor before it can lawfully be taken for public use." Has this already ceased to be the law of this State? If so, the science of law is progressing more rapidly than it has progressed in the past. The other proposition enunciated in Justice Dykman's opinion seems equally progressive, if not startling. Up to this time it has been held, the world over, that an order or judgment of a court of competent jurisdiction had to be abided by and obeyed by the parties thereto while it existed. But now, it seems, if an injunction order be reversed for error, a previous order punishing a party for defying it "while it was in force, ipso facto falls with it, and must also be reversed." Egad! we have not lived in vain. In the language of colored brother Jasper, "the sun do move." NEW YORK, January 2, 1889. Editor of the Albany Law Journal: M. of great practical inportance and comprehensiveness, HOLT ON CONCURRENT JURISDICTION. This book treats of the concurrent jurisdiction of the Federal and State courts. The subject is novel, as the author, Mr. George C. Holt, says. The title is narrower than the scope of the work, for after showing the cases of concurrent jurisdiction, the writer, under the head of "grounds of preference," shows what the respective decisions are in the cases of such jurisdiction. It looks like a useful little manual for those needing such information. Published by Baker, Voorhis & Co., New York. NOTES. THE gentleman who wrote the abusive book entitled "The American Jew," an ex-professor of Greek at Harvard, named Timayenis, is under arrest at New York for embezzlement. In a recent judicial opinion the writer speaks of "a lach." This is as bad as the stockings-seller who recommended "a ho." Exactly how to sentence a criminal to death under the new law is at present puzzling the criminal court being terse, scientific and to the point: "I therefore Your report of the decision of the General Term of the Supreme Court of the Second Department in Krone v. Kings County Elevated Railway in your issue of December 29, 1888, is not strictly accurate. If what that decision enunci-judges. The following form possesses the value of ates is good law, and is to be cited hereafter as a precedent, we may as well have it in its full force. In looking at the printed appeal papers, it will be found that the injunction which the defendant was fined for violating was granted in open court on consent of both sides. The record is that the motion for an injunction having come on "and the said counsel for the defendant having asked for an adjournment of one week, and stipulated in open court as a condition of obtaining such adjournment that the acts of the defendant in and about the building of the stairway and landing mentioned in the complaint should be stayed pending the motion, it is ordered," etc. This injunction the defendant violated, and he was fined for so doing. An order was granted, after argument, continuing the injunction during the pendency, and an appeal was taken from this order, and also from the said order punishing for contempt. The General Term (Dykman, J., writing) holds that a reversal of the former necessitates the reversal of the latter. You have had a good deal to say about Justice Rushbot-edly the wrong side of the account. There is no lack tom's decision concerning the bull and the bandanna, but what do you say of this? BROOKLYN, January 1, 1889. NEW BOOKS AND NEW EDITIONS. WAIT ON INSOLVENT CORPORATIONS. J. A Practical Treatise on Insolvent Corporations, including the liquidation, reorganization, forfeiture, dissolution, and winding up of corporations; and embracing the rights, powers and duties of receivers, the remedies of creditors and the individual duties of stockholders and officers By Frederick S. Wait. New York: Baker, Voorhis & Co., 1888. Pp. xlviii, 711. The author is known by his work on Fraudulent Conveyances, and by his joint work with Mr. Sedgwick of Trial of Title to Land. The present is a treatise A rummaging of the records for the past year reveals the fact that Judge Lynch executed 144 persons-101 in the south-while there were only eighty-seven legal hangings in this country. This is a balance on decid of law and machinery for promoting the ends of jus- The opponents of capital punishment will not be wisdom which fell from the lips of the honored The Albany Law Journal. speaker will afford food for reflection in the peru ALBANY, JANUARY 19, 1889. CURRENT TOPICS. HE State Bar Association held its twelfth an sal which will be afforded in the published proceedings. They were too precious to be trusted merely to the impression of the hour. The association elected Judge Cooley an honorary member, and in putting the vote even the conservative president could find no room for hesitation, for the result was unanimous. the usual number were present. Mr. Martin W. Cooke, the president, in a short address reviewed the work of the past year, and encouraged the association to continued action. Hardly consistent with this advice however was his expression of opinion that any action at present about the Civil Code by a majority was unadvisable. This was one of the subjects recommended last year for action, and it would seem quite appropriate for the association to put its opinion on record one way or the other. Mr. Cooke should recollect the fate of the Laodicean church. It is not probable that the association will ever be unanimous on the subject, but that is hardly a sound reason for shirking the question. The question is one that is not to be ignored. It will not down any more than Banquo's ghost, and it must be either recognized or decently buried, so far as the association can do either. All other subjects that are or can be brought before the association are mere mint, annise and cummin, in comparison with the weightier matter of codifi-suing year Judge Arnoux of New York, who is After writing the foregoing we attended the concluding session of the association, at which Mr. Van Voorhees of Rochester moved that the meeting express its opinion in favor of codification, observing that he thought the association could not afford any longer to shirk the great question of the day. Only three gentlemen spoke in opposition. One of these thought it was a pity to disturb a meeting which had been so delightful and harmonious by the introduction of a vexed question, especially as the association was not numerous enough to assume to represent the bar. Another spoke themselves in favor of codification. somewhat in the same strain, but both declared So the resolution was adopted, with only three or four dissentient voices. It is noticeable that not one spoke against codification as a measure. The majority was so overwhelming that even President Cooke's The association chose for the president for the entremors on the subject were probably assuaged. cation. known throughout the State for his learning, industry and marked abilities, and for the progressive spirit of his spirit and labors. It is the highest praise to say that the large audience of lawyers and laymen assembled to hear Judge Cooley discourse on the "Comparative MerThe State Library is now open in its new quarters its of Written and Unwritten Constitutions" were on the third floor in the west end of the Capitol, not disappointed in his treatment of the sub- occupying the northern half of the floor, the genject. He has the power, which he has often eral library occupying the southern half. The high evinced, of treating constitutional topics in a mas- ceiling has been utilized by galleries, and by the terly and comprehensive manner, adapted to the skillful arrangement of Mr. Griswold, the law libracommon understanding, and at the same time rian, the books have all been got in, and room is adorned by the graces of scholarship and graceful left for a few a very few years' growth. The diction. The essay was quite worthy of the repu- parts of the room furnished with tables and detation of the eminent jurist, and was read with the signed for work are well lighted, but the bookmodesty and simplicity of a great thinker. At cases, owing to want of space, are too near toevery step of Judge Cooley's argument, or rather gether, alcove fashion, presenting a sadly huddled judgment, in favor of written constitutions, we appearance, and with some exceptions will have no were struck by the apparently unconscious testi- sufficient light even by constant artificial aids. It mony he bore to the superiority of codification to would be a sad catastrophe for two stout lawyers the common law. Every argument in favor of to stoop down simultaneously back to back oppowritten constitutions is applicable in full force in site each other in one of these narrow places. It favor of written laws. Even the reproach which would be necessary for one or the other to back the opponents of codification have most strenu- out, or for one to lie down and let the other step ously urged against it, namely, its incapability of over him, as the mules do in narrow mountain expansion by construction, was successfully an- pathways in Spain. When we recall the beautiful swered in the case of constitutions, and fortified by old library building, demolished to give space for repeated examples. The chief instances of this ex- this showy monstrosity of the Capitol, it makes us pansive power were found in the abolition of slav- sad. It is cruel to crowd the great law library into ery under the power to make war, and the exten- such inadequate quarters. Is it possible that in a sion of the doctrine of inter-State commerce in re-building costing already eighteen millions, no betspect to railroads and telegraphs. The words of ter provision could have been made for this im VOL. 39- No. 3. portant adjunct to the State government? The space allotted should have been at least twice as great. The third volume of the "Bankside Shakespeare," published by the Shakespeare Society of New York, gives "The Merchant of Venice," the players' text of 1600 with that of the first folio of 1623, on opposite pages. The editorial work is done by Mr. William Reynolds of Baltimore, author of "Theory of the Law of Evidence," who furnishes an interesting introduction, tracing the sources and history of the play, with a critical review of the law of the famous trial scene. This play has always been a favorite with lawyers, and has been repeatedly commented on and criticised in the columns of this journal. All we have time and space now to say is that Mr. Reynolds, a competent judge of evidence, not only fails to find in this play any evidence of the legal learning so frequently attributed to Shakespeare, but concludes, "upon the strength of the trial scene in this play, that its author never was learned in the law, and therefore could not possibly have been Lord Bacon," We must leave to our readers the privilege of perusing the writer's investigation of the claims put forward for Shakespeare's legal learning as shown in Hamlet and some of the historical plays, with the remark that we are inclined to agree with him, and that as to Bacon, it is utterly incredible that such a lawyer and historical scholar as he could have stooped to put forth such ridiculous nonsense as the trial scene as law in Venice at the time in question. every man has his price -- if not in money in something else. And now we doubt not ever so many lawyers will run and buy it, and that the elegantly dressed gentry who haunt the lobbies will buy it to see whether they are included or left out. Our good old friend, the Virginia Law Journal, has changed to a weekly. We wish it success, and shall be twelve times as glad to see it as formerly. In its second number we find a capital article on Jurors by Occupation," which we shall republish.- Mr. Chas. C. Soule, the Freeman-street Chapel publisher in Boston, announces a new monthly for lawyers, called "The Green Bag," under the editorial charge of Mr. Horace W. Fuller, author of a pleasant little book on "Adventurers and Imposters.' This new magazine is designed to interest, amuse and beguile, rather than instruct and inform. This is a good idea. We have often wished we could afford to be less wise and to caper more. But here is an excellent vent for the funny men of the profession to get an audience for their amusing sayings and gleanings. Let every lawyer who understands a joke subscribe at once. The newspapers seem determined to convince people that they cannot be killed by electricity except by accident - that it is impracticable to execute a murderer by electricity. This is undoubtedly in the interest of the newspapers, so that they can continue to give their loathsome reports of the victim's dying struggles in the halter. They are determined not to be defeated of their ancient privilege of reporting the noose. One journal — in Buffalo, we believe - puts it on the ground of the right to report the executive sessions of the Senate, for example? Why do they not demand that executions shall be public, on high hills, so that all the reporters can be in at the death? Or why do they not demand the privilege of witnessing and reporting the corporeal punishment of disorderly convicts in the prisons? Or of reporting the religious exercises in the prisons on Sunday? All such things it is within the police power of the State to regulate. Newspapers are not above the laws or society, and if the government chooses, as a police measure, to shut out reporters from executions and prohibit the publication of the details, the gentry of pencil and pad must submit. The Jews who felt hurt by that vile book, "The American Jew," can have an easy revenge by read-liberty of printing. Why do they not demand the ing "The Lobby and Public Men from Thurlow Weed's Time, by Hudson C. Tanner, late official stenographer of the New York Legislature," published by George MacDonald of this city. It is a most unpleasant book, and the Jews certainly have never done any thing so reprehensible as the things set forth in this indubitable and shameful record of so-called Christians. The book is worth reading because of the impress of truth which it bears, but after all it might have been better not to tell these truths, just as it would not be wise to publish a book minutely describing all the houses of prostitution in a city and their frequenters. We were seduced into reading it by the preface, which it is difficult to believe was written by the same hand as the succeeding pages, which swarm with vulgarity, obscenity, profanity, slang, bad grammar and the intolerable smartness of the police court reporter of a city newspaper. There are too many tales of gambling, debauchery and corruption to recommend the book to general perusal. These are to some extent atoned for by a few good stories and the undeniable boldness of the writer's assertions and criticisms, but after all it leaves an unpleasant taste in the mouth to learn the writer's estimate of the virtue of public men, which apparently is that There is one senseless practice that we have grown tired of, and we are going to stop it. Poe wrote a grotesque tale called "Xing a Paragrab." We are going to stop xing our paragraphs. Hereafter when we have occasion to speak of a person who was formerly a judge, for example, we shall not call him "ex-Judge," but Judge. The expersonages throng the newspaper columns to a ridiculous excess, from ex-coroner to ex-president. If one were personally to address one of these re tired officials he would not think of calling him "ex-Judge." So hereafter we shall beg to be excused from the absurd and exclusively American practice. NOTES OF CASES. Robinson v. Rohr, Wisconsin Supreme Court, December 4, 1999, street commissioners having; in accordance with the charter, directed the city clerk to advertise for proposals for work and materials to repair a bridge according to plans and specifications adopted by them, accepted a proposal and directed a contract to be made with the bidder, but later rescinded the resolution and left the whole matter open. They then resolved to do the work themselves on plans reported by and under the supervision of a committee, and to appoint a superintendent of the work. While the work was being done in this manner plaintiff was injured by the fall of their derrick. Held, that in under. taking to carry out the work which as public officers they had resolved on, they ceased to act as officers exercising judicial and legislative powers, and became liable individually for the consequences of their negligent acts, the city being relieved from responsibility. The court said: "If as public officers they owe only a duty to the public and are not liable to persons, yet if they do so act as to owe a duty to individuals then their negligence therein is an individual wrong which may be redressed by private action. In this case the defendants owed a duty to the travelling public and to the plaintiff while travelling over the bridge, to look out for her personal safety while they were managing the work through their servants. This is not a public but a private duty, which they must discharge properly, or be liable to those injured by their negligence. As public officers, acting for the public alone, they are exempt from personal liability. The doctrine of respondeat superior does not apply to such. But if, as the authors say, they engage in some special employment, and their duties are of a more private character and concern individuals as well as the public, they are amenable to private actions. Whart. Neg., § 284; Shear. & R. Neg., §§ 166, 167. This distinction is plainly marked and easily applied. The authorities cited by the learned counsel of the respondents apply only to the first class, and therefore are not applicable to this case; such as Squiers v. Village of Neenah, 24 Wis. 588; Hurley v. Town of Texas, 20 id. 637; Hamilton v. Fond du Lac, 40 id. 47; Smith v. Gould, 61 id. 31. Special attention is called to Alvord v. Barrett, 16 id. 175, as illustrating the rule contended for by the learned counsel. But in that case the court said: 'If the town clerk had been guilty of any neglect of duty or misconduct, whereby the appellant had sustained damages, the case would have been different.' So in Harris v. Baker, 4 Maule & S. 27, the trustees for lighting streets were not liable to a person injured by falling over a heap of dust deposited in the highway, because, the court said: They were too far removed from the cause of it.' But suppose the trustees had deposited the heap in the highway wrongfully or negligently, they would not have been too far removed from the cause of the injury. The defendants rejected the contractor, who would have been liable for such injury, and took his place to do the work, and thereby assumed the liabilities of a contractor to those injured by the negligence of their servants. The board planned the ditch, and are not liable for their plan; but if the commissioners dug the ditch and negligently left it unguarded, and a person falls into it in the dark, are they not liable? By personally and practically undertaking to do the work through servants of their own employment they are brought into contact and relation with the travelling public and the plaintiff, and assume corresponding duties and obligations. This is sufficient as to the principle which governs this case, treating the defendants as officers as well as operatives. In such case it follows, as of course, if they are liable the city is not so; and that cases in which it is held that the municipality is not liable for such a personal injury, caused by negligence or wrong, are authorities that the persons or officers who did the wrong or were guilty of the negligence are liable. In Wallace v. City of Menasha, 48 Wis. 79, the city treasurer sold the property of one person for the tax of another. It was held that the city was not liable for such a tort. His acting colore officii made no difference. In that case the doctrine and distinction, as above stated, together with the above and other authorities, are fully and ably reviewed by Mr. Justice Lyon, and it is a case in point with this in principle. In Uren v. Walsh, 57 Wis. 98, it was held that the defendants were liable to personal action for unlawfully tearing down a fence to open a highway, and it made no difference that they pretended to act as public offi cers. This class of cases is distinguished from the cases cited by the learned counsel of the respondent by the chief justice in an able review of the doctrine. It was a personal wrong for which the town was not liable, and is distinguished from those cases where the municipality is held liable, because in such cases it directed the act, or ratified it, or it was within its general powers. In that class of cases the damages are the natural and proximate consequence of the illegal act, and not the result, as in this and similar cases, of some incidental and independent act of negligence or of wrong, not necessary to the work, and committed while doing it, to the injury of third persons. For such an act of negligence or wrong as that complained of the municipality was never held liable. The city of Watertown had nothing to do with it, never authorized or ratified it, and it was not within its general powers or for its benefit. The city might as well be held liable for an assault and battery committed by these commissioners while prosecuting this work. But treating the defendants as officers, and lawfully doing the work, they would be liable and the city would not be. A city is not lia ble for injuries or damages caused by the neglect of its officers in the performance of their duties (Schultz v. Milwaukee, 49 Wis. 254), or for their misfeasance or malfeasance, or omission to perform their duties, or for negligence in its performance (Little v. City of Madison, id. 605). When an officer of a corporation performs an illegal act resulting în an injury to another he is liable. Peck v. Cooper, 112 Ill. 192. Whenever a person sued sets up a defense that he was an officer of the government acting under color of law, it plainly devolves upon him to show that the law which he invokes authorized the particular act in question to be done, and that he acted in good faith. Flanders v. Tweed, 16 Wall. 504. But where the issue is negligence motives or good faith are immaterial. Hover v. Barkhoof, 44 N. Y. 113. Where an officer injures another while performing ministerial duties he is liable. Mills v. City of Brooklyn, 32 id. 489. For a personal injury caused by the negligence of several persons they are severally or jointly liable. Creed v. Hartmann, 29 id. 591; City of Peoria v. Simpson, 110 Ill. 294; Wright v. Compton, 53 Ind. 337; State v. Babcock, 42 Wis. 138." * * * In Innis v. Cedar Rapids, I. F. & N. W. Ry. Co., Iowa Supreme Court, December 18, 1888, it was held that under the Code of Iowa, section 3331, which provides that whatever is "an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action may be brought thereon by any person injured thereby," one who has established on a navigable lake, after a railroad bridge had been built essentially interfering with navigation, the business of letting boats to pleasure parties, does not sustain such peculiar injury from the bridge, in distinction from the general public, as to entitle him to bring an action under the statute, though his business is his complaint is that the bridge obstructs the navigation of the lake. But with reference to the right to navigate it he occupies precisely the same position as other members of the general public. The fact that since the bridge was erected he has purchased boats and engaged in the business, gives him no other or different rights with reference to the subject than are enjoyed by others, for every one had the right to do the same thing. His sole right in the premises is to use the lake as a highway. But every other member of the public has the same right. We have no occasion to consider whether his right would have been different if he had owned the property and been engaged in the business when the bridge was erected, or had subsequently purchased from one who at that time was engaged in it, for it is not claimed that he did either. It was held by this court in Ewell v. Greenwood, 26 Iowa, 377; Wilson v. Sexon, 27 id. 15; and Hougham v. Harvey, 33 id. 203, that the plaintiffs could maintain actions to abate obstructions in public highways. But in each of those cases the plaintiff suffered injuries in consequence of the nuisance not sustained by the general public, and it was that fact which gave him a standing in the court, and the general rule which has been applied was recognized in each of the cases. We were urged by counsel for appellee to determine whether Medium Lake is a navigable water; but we think it would be manifestly improper for us to attempt any determination of that question in the present case. It is one in which the general public, or individuals other than plaintiff, may be deeply concerned, and any judgment or order we might enter with reference to it would be binding only upon the parties before us." LOST WILLS. I. materially injured. The court said: "It is very JURISDICTION. There is not entire harmony in the clear that under this provision a person who sustains a special injury from a public nuisance, aside from and independent of that sustained by the general public, may maintain an action for its abatement or to restrain its continuance. Indeed that is the law in the absence of any statute on the subject. But independent of statutory provisions the rule undoubtedly is that a private individual will not be allowed to maintain an action to restrain or abate a public nuisance unless he can show that it occasions some peculiar or special damage or injury to him. 1 High Inj., § 762; Gould Waters, §§ 121, 122; Blackwell v. Railroad Co., 122 Mass. 1; Willard v. Cambridge, 3 Allen, 574; Prince v. McCoy, 40 Iowa, 533; Prosser v, Ottumwa, 42 id. 509. And in the latter case it was held that this rule is not changed by our statute. The case depends then upon whether plaintiff has established that he suffers any injury from the alleged nuisance distinct from that sustained by the general public, and we think it clear that he has not. The substance of cases as to what courts a lost, destroyed or suppressed will may be established or probated in. In England the Ecclesiastical Courts always exercised the power to probate wills of personalty, but not wills of real estate; and if the will probated in those courts also related to real estate, the probate as to the latter property was a nullity. Buchanan v. Matlock, 8 Humph. 390; S. C., 47 Am. Dec. 622; Dower v. Seeds, 28 W. Va. 113; S. C., 57 Am. Rep. 646; Apperson v. Cottrell, 3 Port. (Ala.) 51; S. C., 29 Am. Dec. 239. But chancery in that country has always entertained jurisdiction to set up lost instruments, and has included among the list lost, destroyed or suppressed wills. Thus it is reported that "a will having been destroyed by the brother of the disinherited heir, the devisee was decreed to hold and enjoy, and a trial was denied." Hayne v. Hayne, 1 Dick. 18 (1702). So where a legacy was given it was held that the legatee was not required to first go into a spiritual court and prove the will. Tucker v. Phipps, 3 Atk. 359 (1746). So where it was said the heir snatched and tore up a will, a bill to establish the will was allowed, and it was decreed that the devisees should hold and enjoy the land devised against the heirs, and that he convey it to them. Haines v. Haines, 2 Vern. 441 (1702). (This |