ing the offense; that it had been found as a fact that the object of the defendants was, not the detection and suppression of crime, but the promotion of their own corrupt gain; that the defendants sought to extort " hush money" for suppressing the evidence of guilt. The court also said that those who induced a violation of the law for the purpose of compounding the offense and making gain by defeating public justice were guilty of a gross wrong. In this case it is not averred that the defendants offered to settle or compound the offenses, nor that they obtained any part of the informer's share of the penalties, nor even that the suits against the saloon keepers were prosecuted to judgment; in that reference it is simply alleged that the defendants, and others acting with them, had caused writs of summons to be issued by the aldermen for the penalty of $50 in each case. The decision of the question presented in Hazen v. Commonwealth does not warrant a ruling that this indictment can be sustained, nor has any authority for such a conclusion been found. The motion to quash must be sustained. Penn. Sup. Ct., March 1, 1886. Commonwealth v. Kostenbauder. Opinion per Curiam.

DEED-RESERVATION.-A warranty deed granted and conveyed a parallelogram of land, nine chains and ninety-six links long, by five chains and two links wide, "containing five acres, * * * reserving from said grant a strip thirty-three feet in width, on the south side of said tract for a public street. Held, that the fee of the thirty-three feet strip passed to the grantee. It is difficult to see why, when he had adopted the plan of describing the property by its width in chains and links, the grantor should have specified a width greater than the actual width of the premises which he intended to convey, or why he should have embraced in the specified width thirtythree feet more than he intended to convey simply for the purpose of taking it out again. The obvious and natural construction is that he meant to convey all that he described as a five-acre tract-nine chains ninety-six links long by five chains two links wide. This being the apparent intention of the grantor in his descriptions of the five-acre tract, how is it affected by the so-called "reservation?" Certainly that does not operate to except from the tract the fee of the thirty. three feet strip on the south side, for this would be inconsistent with the intention mentioned (if not repugnant, and therefore void), but to reserve an easement of right of way for a public street in and over the strip. As it did not accept the fee, and the strip had never been used as a street, and no street had ever been laid out or opened upon it at the time of the grant, the so-called "reservation” was not, strictly speaking, an exception of any thing; for an exception is of a part of the thing granted, and of something in esse at the time of the grant. A "reservation" is defined to be something newly created or reserved out of the thing granted, that was not in esse before; as for instance, an easement. Hurd v. Curtis, 7 Metc. 94; Winthrop v. Fairbanks, 41 Me. 312; Boone Real Prop., $303. So that although the terms "exception" and "reservation" are often used indiscriminately, and the difference between them is in particular cases sometimes obscure and uncertain (Bowen v. Conner, 6 Cush. 132, and cases supra; Roberts v. Robertson, 53 Vt. 690), the so-called "reserving" of the thirty-three feet strip in this case "for a public street" would be a "reservation" proper (if any thing) as distinguished from an "exception" properly so called. And right here, and upon this point, it is important to observe that the strip is reserved "for a public street." If the grantor intended to except the fee of the strip from the grant, his intention was not expressed. The strip is "reserved" for a public street, and for nothing else.

This does not require the exclusion of the fee of the strip from the graut, but only an easement; and upon the principle that a grantor's deed is to be taken most strongly against himself, no such exclusion of the fee is to be implied. Our construction of the deed then is that it passed to the grantee of the fee of the whole of the five-acre tract. Peck v. Smith, 1 Conn. 103; Richardson v. Palmer, 38 N. H. 212; Tuttle v. Walker, 46 Me. 286; Kuhn v. Farnsworth, 69 id. 404; Hays v. Askew, 5 Jones, 63; Cincinnati v. Newell's Heirs, 7 Ohio St. 37. Minn. Sup. Ct., July 9, 1886. Elliot v. Small. Opinion by Berry, J.

GIFT -CORPORATE STOCK

AGREEMENT AGAINST PUBLIC POLICY.-In an action for breach of contract for non-delivery of corporate stock, the defendant may show as matter of defense that the contract sued upon was part and parcel of a prior secret agreement between the plaintiff and the company, whereby the plaintiff was to subscribe for a large amount of the stock for the purpose of inducing others to subscribe, and that for so doing he was to receive, in addition to his subscription, the amount of stock in question as a gift from the company. Mass. Sup. Jud. Ct., July 3, 1886. Nickerson v. English. Opinion by Field, J.

INSURANCE-EVIDENCE-CIVIL ACTION- CRIMINAL PROSECUTION.-A., who held a policy of insurance upon a building, upou its destruction by fire endeavored to collect the amount of the insurance from the insuring company by action; one ground of defense was that A. had fired the structure. On the trial the Common Pleas instructed the jury that the testimony to establish the fact of incendiarism ought to be as strong as that required to convict in a criminal court of arson. Held, error. The doctrine that a reasonable doubt of guilt is to workian acquittal does not apply in civil issues; in these the result should follow the preponderance of evidence, even though the result imputes a crime. Whart. Ev., 1246. In reference to the rule thus stated text-books and adjudications differ, and it would be difficult to ascertain on which side is the greater number. Many of them, for and against, are cited by Dr. Wharton, and we are content to refer to them, without a profitless review, or a reiteration of reasons leading to the conclusions adopted. In a civil issue the life or liberty of the person whose act is sought to be proved is not involved, proof of the act is only pertinent because it is to sustain or defeat a claim for damages or respecting the right of things. Where the act imputes a crime the inculpatory evidence must be sufficient to overcome the exculpatory evidence and the presumption of innocence; otherwise there is no preponderance to establish the fact. That presumption is due every man in every court, and when it is alleged that he has done a dishonest or criminal act, the presumption weighs in his favor. In the civil issue he is not on trial. The judgment is not evidence that he is guilty of crime. The act affirmed is an incident, a fact, to be proved like other pertinent facts. For instance, in this case, had the insured changed the tenancy or occupancy of the premises, without notice to the assurer, proof of the act would have been competent, and the fact established by preponderance of evidence. If a man by deceit fraudulently obtains insurance on a building, by like evidence, his act may be established to avoid the policy; if he burus the insured building the same rule of evidence ought to apply when it is proposed to prove the act for like purpose. Penn. Sup. Ct., March 1, 1886. Somerset Mutual Fire Ins. Co. v. Usaw. Opinion by Trunkey, J.

MALICIOUS PROSECUTION-WARRANT-WHO LIABLE WHEN ERRONEOUSLY ISSUED.-If the offense charged is of a public nature, and a justice, through error of

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EMBANK

unless the contract affords a certain measure or standard for ascertaining the amount of the damages; * the standard should be a subject-matter of the contract, * * *the standard must be shown by the contract, without the aid of inferences from extrinsic facts or circumstances. N. J. Sup. Ct., Aug. 26, 1886. Hecksher v. Trotter. Opinion by Dixon. J. NEGLIGENCE-HIGHWAY-UNPROTECTED MENT. The road for some distance at the place where the accident occurred was a single track, eleven or twelve feet wide. Upon the west side the ground sloped gradually from the travelled track, but on the east side there was a steep bank extending along the road within a foot of the wheel track; and there was no fence or railing upon that side. The accident occurred in the night-time, and was caused by the slipping of the buggy in which the plaintiff was riding, upon the bank on the easterly side, while her husband, who was driving, was attempting to turn out for a coach coming from the opposite direction, and in endeavoring to right the buggy he ran against the coach, and the plaintiff was thrown out and injured. Held, that the questions as to the dangerous condition of the road and the negligence of the plaintiff's husband should be left to the jury. In such a case, if the plaintiff and her husband were using due care as travellers upon the highway, and were by a defect in it exposed to imminent danger to life and limb, and as a reasonable precaution to avoid this danger the husband turned the horse to the left, whereby the buggy was brought into collision with the hack, which otherwise would not have happened, and thus the plaintiff suffered injury, the defect in the highway may be considered as the sole cause of the injury. Mass. Sup. Jud. Ct., July 3, 1886. Flagg v. Town of Hudson. STATUTE OF LIMITATIONS--ACKNOWLEDGMENT TO STRANGER.-The unqualified acknowledgment of a present subsisting indebtedness, whether made to the plaintiff or to his agent, or to a stranger, is sufficient to remove the bar of the statute of limitations. Since the decision in the leading case of Oliver v. Grey, 1 Har. & Gill, 204, this is no longer an open question in this State. In that case it was expressly decided that the unqualified acknowledgment of a subsisting indebtedness was sufficient whether such acknowledgment was made to the plaintiff or to a stranger. It has been held, we are aware, in some States, that the acknowledgment must be made to the party or his agent. The decisions in these cases proceed on the principle that the debt is extinguished by operation of the statute, and the action is brought on the new promise, and it is necessary therefore that the acknowledgment should be made to the contracting parties. The debt however is not in this State extinguished by the operation of the statute-it affects only the remedy. The suit is brought on the original cause of action, and the new promise is offered in evidence to remove the bar of the statute. So it may be considered as settled law in this State that the acknowledgment, whether made to the party or to his agent, or to a stranger, is sufficient. Md. Sup. Ct., June 22, 1886. Stewart v. Garrett. Opinion by Robinson, J.

SUBSCRIPTION-EFFECT OF ACCEPTANCE-CONTRIBUTION.-A promise to pay a subscription to a charitable object is a mere offer, which may be revoked at any time before it is accepted by the promisee; and an acceptance can only be shown by some act on the part of the promisee whereby some legal liability is incurred or money is expended on the faith of the promise. If the promisor dies before his offer is accepted it is thereby revoked, and cannot afterward, by any acts showing acceptance, be made good as against his estate. Pratt v. Trustees, etc., 93

Ill. 475; Beach v. Church, 96 id. 179; Phipps v. Jones, 20 Penn. St. 260; Helfenstein's Estate, 77 id. 331; Cottage Street Church v. Kendall, 121 Mass. 528. The rule is otherwise when subscribers agree together to make up a specified sum, and where the withdrawal of one increases the amount to be paid by the others. In such case, as between the subscribers, there is a mutual liability, and the co-subscribers may maintain an action against one who refuses to pay. George v. Harris, 4 N. H. 533; Curry v. Rogers, 1 Fost. 247; 1 Whart. Cont. 719. Cal. Sup. Ct., July 14, 1886. Grand Lodge of the Independent Order of Good Templars of the State of California v. Farnham. Opinion by Belcher, C. C.

WATERS AND WATER-COURSES OYSTERS—'IMPROVEMENTS."-The bedding of oysters is not an "improvement" within the contemplation of the Acts of 1862, ch. 129, which vests in the owner of land bounding on navigable water the exclusive right to make improvements upon all the soil of the water in front of his land, subject only to the restriction of not interfering with navigation. The subject-matter of the right declared by the first of these sections to be in the riparian proprietor is "all accretions to said land." It seems obvious the rights does not attach until the accretions to the land are formed and become visible. Until new land is made or emerges there can be no accretion to or increase of the land of which it shall constitute a part. The very term imports an addition of what possesses the characteristics of land. So long then as the water covers the soil adjacent to the land, it is not within the contemplation of the act, but remains under the control of the State, subject to the possibility of accretion being made or formed therefrom. The improvements, which under section 38, the proprietor of land bounding on navigable waters is entitled to make into the same, and which with the other accretions provided for, shall pass to the successive owners of the land to which they are attached as incident to their respective estates, are plainly, we think, such structures as are subservient to the land, and which, used in connection with the land, enhance its value, or enlarge its commercial or agricultural facilities, or other utility, to an extent the land alone would be incapable of, and in this way "improve" it. They are to be made "into" the water-a term inconsistent with entire separation from the land. Wharves, piers and landings are examples of such improvements. Farming and commercial interests are promoted by the privilege, and to encourage the development of these was the main object of conferring it. When such improvemets are made they become incident to the estate, as not inherently identical in nature with land, but from being joined to it, and contributing to its uses and value legally identified with it, as a fixture or a right of way or other appurtenance that passes with land. The mere planting or depositing of oysters in the water implies no essential union or relation between the main land and the soil under the water contiguous, and therefore does not effect an improvement of the former implied in something erected or constructed attached to the shore, and together with the land, furnishing conveniences and facilities that enlarge the advantages of the latter. Until therefore "improvements" are made to the land in the sense we have described, the mere right to construct them, although still subsisting, is not incompatible with licensing of the soil covered by water for uses not subversive of such right, or irreconcilable therewith, and which must yield to the paramount right of making improvements when actually exercised. Then and to the extent actually occupied by the improvements when actually occupied by the improvements, do the improvements, and the ground they necessa

The Albany Law Journal.

THE

ALBANY, OCTOBER 9, 1886.

CURRENT TOPICS.

HE judicial nominations have resulted, as we supposed they would result, in the triumph of wire-pulling partisanship, and the degradation of the judicial office to serve the low aims of party managers. Both parties are equally to blame for this inglorious spectacle. The difficulty is that each thinks it can elect its own nominee, and thus help the party in other points. We have said our say about Judge Peckham, and after this we shall have nothing or little more to say. The writer highly regards him as a personal friend, and certainly nothing can be said against his character nor in depreciation of his abilities, except that they consist in the forensic vigor and the convincing power of the advocate rather than in the deep legal learning, the reflective habit, and the capacity of expression in writing of the judge. He very much resembles his father in personal and mental qualities, although he is probably an abler lawyer, and we have observed that his father's opinions are very seldom quoted. The father was and the son is just a little too fond of his own off-hand expressions to be the most patient and safest kind of a judge. Still a superb common-sense is the endowment of both, as it was of the late chief judge, Church an endowment not too prevalent on our bench, nor on any other, and which we have sometimes missed since the death of the late chief. As for Judge Daniels, the Republican nominee, he would have been a capital candidate for both parties, but he early declined in a most decided manner. We are glad he has reconsidered this unfortunate decision. is a nominee in every way suitable. He is in no sense a partisan or politician; he has had a very great experience as an appellate judge; although a resident of Buffalo he may be considered a fair representative of the first district, where he has sat for so many years; his learning is ample, his industry is untiring, his patience is proved and unfailing; his integrity never has been questioned; and not the least, he did not seek the office. Office seems to run after Buffalonians of late. It is a pity that he will be able to remain on the bench only about eight years. Judge Daniels ought to command every Republican vote, and will probably draw some moderate democrats, and is perhaps as strong a candidate as the party could put up. On the other hand, Judge Peckham has some enemies and opponents in his own party- which is nothing against him and has never sought to conciliate the members of the other party which is very much in his favor. He is not a "popular" man — for which we do not blame him; but he is a partisan, for which we do not admire him.

He

He was

should weigh; the question for every lawyer to settle for himself is, who will make the better judge?

"Leviticus XVIII, and Marriage between Affines," is the title of a pamphlet of twenty pages, by Mr. John B. Gale, of Troy, N. Y. This is designed as a supplement, reinforcement and condensation of the author's former tract, entitled “Affinity no bar to Marriage," on which we commented at the time of its publication. This subject is kept continually alive by the annual discussion in the British Parliament as to marriage with a deceased wife's sister. In Great Britain marriage is prohibited between twenty classes of persons related only by marriage, while in this country eighteen States, including New York, prohibit no such marriages, and in none except Georgia is marriage unlawful with either brother's or nephew's widow, or sister or niece of deceased wife. Mr. Gale justifies his publication as follows: "If our permissive State laws really oppose Divine law we need to know it, and to reform them; or if instead, the restrictive ones have no Divine warrant, and rest only on civil polity, we should know that, and reconsider them. | And as to the restrictive ecclesiastical laws if they are not scriptural they are defenseless, and should be blotted out as setting up traditions of men for the word of God, and as working egregious wrong by subjecting parties to these Christian marriages to unjust criticism, and to the shameful attacks upon them which advocates of the restriction so often resort to. For these reasons alone a better public understanding of this neglected subject becomes desirable. But they are not all, for the growing demands for uniform marriage and divorce laws throughout the States, and for Federal suppression of polygamy in Utah, give it new and national importance; and especially so when it is considered that such Federal action, and indeed all marriage laws, must face the fact that if the Levitical laws in question command restrictions upon affinitous marriages they as certainly, and for like reason (or unreason), sanction polygamy, and give rank to that infamy as a Divine institution for all nations and ages." Mr. Gale now, in the form and dimensions of a lawyer's brief, conclusively demonstrates the unsoundness of the ecclesiastical deduction that marriage with a deceased wife's sister is forbidden by the Bible. We quite agree with Mr. Gale that the phrases" uncover the nakedness of" and "lie carnally with" did not mean marriage; that "laws against lewdness with the wives of kin by no means forbade marriage with their widows; and that "all who consider that laws must be construed by their subject will escape the imbecility of reading laws against lewdness with others' wives as laws against marrying their widows." As Mr. Gale is an Episcopalian this tract may be an influential protest against the silly doctrine, to the inculcation of which some of the clergy of that church seem to devote much of their time and talents, mainly because "it's

VOL. 34-No. 15.

little pains to preach against the common vice of