For soon these fellows separate And if one fellow makes a bull, The dog you love, the horse you drive, The loaf now steaming for a meal, The quill-wheel or your carriage, The baby mewling in your lap, The wife you won at marriage, The last memento, dear as breath, Some knavish whelp may up and claim You deem, because you have the right Sage men, a private word with you - With all your Courtly wisdom here NEW BOOKS AND NEW EDITIONS. DEVLIN ON DEEDS. A Treatise on the Law of Deeds, their form, requisites, execution, acknowledgment, registration, construction and effect, covering the alienation of title to real property by voluntary transfer, together with chapters on tax deed and sheriff's deed. By Robert T. Devlin. San Francisco: Bancroft, Whitney & Co., 1887. 2 vols. Pp. xxv, 753; xxi, 982. It was a judicious idea to separate the law peculiar to deeds from the great mass of real property law in which it has been hitherto buried, and to do for it what has been done for mortgages, for leases, for covenants, for wills. Mr. Devlin seems to have done this work thoroughly, comprehensively and practically. The amount of labor bestowed has evidently been great, and the result appears satisfactory in its intelligent and convenient arrangement, and the concise and clear treatment of details. conventions of New York and California would exhibit human nature in its most various forms, from wisdom to lunacy, from benevolence to selfishness, from cosmopolitanism to the narrowest patriotism, from revolutionary radicalism to rusty conservatism. An occasional convention is an excellent opportunity for men to air their opinions and for the people to find out what fools and demagogues many of their would-be rulers are. Taine gives a vivid account of the celebrated French convention, and in the recent records of this State we can find an almost equal display of the chimerical and the impracticable. Doubtless our next convention, if it ever comes off, will afford an equally amusing and annoying exhibition. Judge Jameson has produced an excellent treatise, of a decidedly novel character, containing much useful retrospection and many wise suggestions, especially well adapted to this country, composed of so many separate democracies with peculiar and sometimes opposing interests. The volume points out the true objects and defines the proper powers of such assemblies, and the author's views are expressed with vigor and precision. Prof. Pomeroy pronounced it the ablest work ever produced on American politics. NOTES. A rather spare old gentleman, with thin greyish whiskers and wearing a pair of highly-polished spectacles, leaned over the counter in the Southern Pacific Company's uptown ticket office Monday morning and asked for a round-trip ticket to Portland. "Thirty dollars," promptly responded the clerk. The passenger laid the gold on the counter and the clerk pulled the ticket out of the case and handed it toward him with a well-inked pen. "What's that for?" asked the passenger with a touch of contempt in his tone and glancing toward the pen. Sign there, please." "No sir; I refuse. There is no law in the United States compelling me to sign a railroad ticket. There is your money. Give me the ticket.' The somewhat ruffled agent looked at the passenger and then at the ticket, but did not touch the money. "What is your name, sir?" he asked at length. 'Stephen J. Field," was the reply. Then it dawned upon the rather dazed mind of the young man behind the counter that he was talking to one of the justices of the Supreme Court of the United States He quietly stamped the unsigned ticket, handed it to the passenger with a subdued air, and as he put the money in the drawer he was observed by the bystanders to be in a very reflective mood.-San Francisco Chronicle. 64 " A statement was made recently to the Washington Critic by a gentleman, who was a prominent member of the Confederate Congress, to the effect that there was never any Supreme Court in the Confederate States. He says a bill passed the Confederate house providing for the establishment of such a court, but when it reached the Senate it was defeated by Mr. Yancey of Alabama, who took the ground that such a tribunal was antagonistic to the Confederate idea of the sovereignty of the several States, to maintain which principle they had seceded from the Union. Mr. Yancey's views were acquiesced in, but the necessity for such a final arbiter of dispute between States came up some time afterward, when the courts of one State declared that Confederate bonds could be taxed for State revenues and the courts of another State decided just the contrary. The early collapse of the Confederacy prevented further conflicting complications of the State rights doctrine, as advocated JAMESON'S CONSTITUTIONAL CONVENTIONS. A Treatise on Constitutional Conventions, their history, powers and modes of proceeding. By John Alexander JameFourth edition. Chicago: Callaghan & Co., 1887. The inner history of constitutional conventions from the time of the French revolution down to the last by Mr. Yancey and others. son The Albany Law Journal. ALBANY, AUGUST 6, 1887. CURRENT TOPICS. HE motion for a stay in Jacob Sharp's case has paper reports. It would not at all surprise us if it should prevail, for the evidence was all circumstantial and inferential, and in the absence of positive evidence some evidence which was admitted as to former attempts at bribery may seem, on mature consideration, to have been too remote properly to be invoked in the present consideration. We sincerely hope the conviction will be found legally sustainable, for it is our own belief, in common with the public, that the defendant is guilty. This impression is strongly confirmed by the fact — not lawfully to be considered on the trial, but which must have great weight with public opinion that the defendant did not take the stand to exculpate himself. Why did not Jacob Sharp swear to his innocence? If his physical condition is urged as an excuse for not proffering him as a witness, it may be answered that it would have been but a slight effort to answer one general question asserting his innocence, and even if he had succumbed under cross-examination the jury would have sympathized with him and made every allowance for him. We regard the omission to call him as a grave, probably a fatal mistake. Counsel treated the inculpatory evidence with too much contempt. In cases of this character, when the public is inflamed and clamoring for a victim, it will not do to despise evidence apparently composed of trifles light as air. We would have put the defendant on the stand and rested. We have perfect confidence that Justice Potter will do what he believes right, and shall await the result with patience. We do not believe, with the Tribune, that if he should grant a stay, it would be "startling," or that the people would regard it "with amazement" and "be wholly unable to understand " it, and it makes no difference if they should. The Tribune's threatening of Justice Potter is very indecent. But he will not be deterred by it. his opinions are those of a minority of alienists. One characteristic of the insane, on which we have always insisted, is strongly brought out by this essay, namely, the power of the great majority of insane persons to control their actions, and to distinguish between right and wrong. Justice Cave has some sound ideas of procedure. In a late case (19 Q. B. Div. 29) he says: "At the last moment the defendant's counsel invites the court to say to the plaintiff: You are entitled to approach the Temple of Justice. You have a case of much importance for the decision of the court, and the arguments on either side have been duly heard. But you have approached the temple by the front entrance, when you ought to have came and redouble your expenses.' For my part I will in by the back way. Retire, and renew your labor never adopt that course," etc. Two military Atlanta lawyers had a conflict in court a few days ago, in which one threw the Revised Statutes and the other the Bible. Probably each threw what he thought the other needed. But when one sur-rebutted with that peculiarly American weapon, the spittoon, the court thought it time to interfere. The by-standers were bespattered with ink and mucilage, but no blood was shed. What a miserable death, to be slain by a · cuspidor!" We should prefer to have our exit soothed by mucilage. But what has got into these lion-hearted Southrons, any way? - Col. Troy, Gov. Gordon, and the rest? We should feel very sad at seeing the governor "blasted," but we suspect that a good deal of this speechifying is in the nature of "blowing." In answer to many calls, we have prepared and now have ready for our subscribers, an indexdigest of this journal, volumes twenty-one to thirty-four, inclusive. This supplements our former index, and has been prepared under the personal supervision of the editor, much of it by his own hand, and it is hoped that it will be found convenient and labor-saving, and as nearly free from errors as such publications can ever be. There is prefixed a table of cases reported in full, which it is thought will be a convenience. It is offered at the price of two dollars, which will not cover the cost of production unless an unusually large edition should be called for. Dr. John S. Butler, of Hartford, has issued from the press of G. P. Putnam's Sons, of New York, a short monograph on the "Curability of Insanity and the Individualized Treatment of the In- Actually overheard by the editor at the State sane." The key-note of the treatise is found in Library. Various personally conducted tourists. the affirmative interpretation of the title; insanity (Two hayseeds-first hayseed:) "Wall, this is is generally curable, at all events, few cases require where your money and mine goes to, a good deal of restraint or force, and it is wrong treatment to put it." (Probably cost them about one old hen apiece.) insane persons together. The writer, albeit a great "But see them cracks!" (Other hayseed :) "That's authority on the subject, seems rather optimistic, so, but I tell you, Dave Hill won't stand no monkeyand yet it must be confessed that he defends his ing. He jest puts his foot down, every time, he views by numerous strong examples. We infer that does. Y'orter to've heerd his speech at our agriVOL. 36 No. 6. cultooral fair," etc. (Bride:) "Golden corridor? 'Cause it cost so much money, I suppose. My! see the cracks! Put your hand in 'em!" (Another bride, stopping in front of picture of judges of the old Superior Court:) "Oh, Harry! see these funny old fellows! Aint those collars killing? And look at their boots!" (Bridegroom:) "Yes, queer old that we object to dissents and demurrers. We would like to suppress the publication of the one, and compel the party to abide by the other. duffers - don't look as if they knew beans. By IN Jupiter! see the cracks! and smell the gas!" (Old lady, in front of pictures of justices of United States Supreme Court; pointing with umbrella to Mr. Justice Field:) "Gracious! there's Chief Justice Cyrus Field!" (Another O. L. :) "What do they wear them gownds for?" (First O. L.:) Oh, jest to be comfortable-don't wear no coats nor vests, you know. My! what awful cracks! could lay my hand in 'em! and smell the gas! (Bucolical juvenal and sire. B. J. :) "Father, d'ye spose any lawyer ever knew all there is into them books?" (Sire:) "Wall, dunno; praps old Dan'l Cady, and Eeverts, he's a powerful pleader, but as a senaytor he's a disappintment, I must say. But my! see them cracks!" (Bride-shy but comely: "I wonder who that gentleman is behind that great heap of books?" Conductor says something in a tone of awe. (Bride-looking shyly back:) "Why, he's real young and good-looking, aint he? See those horrid cracks!" (Husband- jealous already, evidently:) "No; no great, I don't think. But do you smell the gas?" And the editor's conceit is restored. The State Library will be closed to the public from the 5th to the 20th inst., inclusive, for the purpose of cleaning and repairs. Referring to the judges' "consciousness of each other's shortcomings," the Central Law Journal says: "This sort of consciousness is rather characteristic of the judicial mind. There is extant an old set of American Reports, published when the century was 'in its teens,' in which it appears that in nine out of every ten cases reported some one of the three judges dissented from the opinion of the court. These learned gentlemen were abundantly 'conscious of each other's shortcomings." The editor need not have gone so far back. Dissent, not to so great an extent perhaps, is common enough now. In looking over the early volumes of our own Court of Appeals reports one must be amazed at the dissents in cases supposed now to lay down wellsettled doctrines. In one volume of the commission of appeals' reports dissents were as thick as daisies in a pasture. Dissents are very common in Pennsylvania, where the dissent is usually by three judges, and if any one will tell us who writes the opinion and who sat in a particular case in which three dissent, we venture to say we can guess correctly as to two of the dissenters in a majority of cases. There is one judge in Missouri who is constantly dissenting, aud in the most scornful and contemptuous manner. There are two d's in the law NOTES OF CASES. [N State v. Goss, Vermont Supreme Court, June 21, 1887, an express agent delivered a package containing lager beer to the consignee, who paid him a sum of money to be transmitted to the consignor, and the agent was prosecuted for selling, furnishing and giving away intoxicating liquor without authority. On trial the court instructed the jury that it was immaterial whether he knew what the package contained. Held, that an express carrier, in the absence of suspicious appearances or circumstances, is neither bound to know nor authorized to find out as a condition of receiving it, what a package contains that is offered for carriage. The court said: "But do the circumstances shield the respondent? He says they do, because he says it was his duty to deliver the packages as he did, even though he had known their contents, and that he should have been liable had he not delivered them; while, on the other hand, it is said that he was bound to know their contents at his peril, and that his want of knowledge makes no difference. Both of these propositions are untenable. As to the first, although express companies are common carriers, and liable as such, yet the law neither requires nor permits them to do illegal acts; and they are not bound to transport and deliver intoxicating liquor, nor other commodities, if thereby they would commit an offense or incur a penalty. They cannot be allowed, any more than other people, knowingly and with impunity to make themselves agents for others to break the laws of the State. As to the other proposition, express carriers are not bound, as a general thing, to know the contents of packages offered to them for carriage. If they were it would follow that they might refuse to carry without such knowledge; and as it would be unreasonable to require them to accept as conclusive the word of the shipper as to contents, they must have a right to inspect for themselves as a condition of carrying, which would occasion great inconvenience in practice. But no such rights exist as a general rule. This precise question was passed upon by the Supreme Court of the United States in the Nitro-Glycerine case, 15 Wall. 524, where the rule is laid down thus: 'It not then being his (the carrier's) duty to know the contents of any package offered to him for carriage, when there are no attendant circumstances awakening his suspicion as to their character, there can be no presumption of law that he had such knowledge in any particular case of that kind, and he cannot accordingly be charged, as matter of law, with notice of the properties and character of packages thus received.' In Crouch v. London & N. W. R. Co., 14 C. B. 255, it is said that the proposition that a carrier has in all cases a right to be informed as to the contents of packages brought to him, and may refuse to carry them if the information is withheld, has not a shadow of authority to sustain it, except a dictum of Best, C. J., in Riley v. Horne, 5 Bing. 217, and that in its generality it cannot stand the test of reasoning. But this case recognizes the right of the carrier to refuse to receive packages offered without being made acquainted with their contents, when there is good ground for believing that they contain any thing of a dangerous character; and it is said in the Nitro-Glycerine case that it is only when such ground exists, arising from the appearance of the package or other circumstances tending to excite suspicion, that the carrier | is authorized, in the absence of special legislation on the subject, to require knowledge of the contents of the packages offered as a condition of receiving them for carriage. In England railway carriers are authorized by statute to refuse to take any parcel that they suspect to contain goods of a dangerous nature, or require the same to be opened to ascertain the fact. In Brass v. Maitland, 6 El. & Bl. 471, which holds it to be the duty of the shipper, when he offers goods of a dangerous character to be carried, to give notice of their character, the chief justice said: 'It would be strange to suppose that the master or the mate, having no reason to suspect that goods offered for general shipment might not be safely stowed away in the hold, must ask every shipper the contents of every package.' 1 Smith Lead. Cas. (7th Am. ed.) 389, 411. If then in the absence of suspicious appearances or circumstances, an express carrier is neither bound to know nor authorized to find out, as a condition of receiving it, what a package contains that is offered to him for carriage, it would be strange to hold him guilty of a criminal offense because of the character of the contents; for in such case he is bound to carry, and liable if he does not, and the law will not compel a man to act, and then punish him for acting. Hence the turning point of this case is whether the respondent had reason to believe or suspect for it appears that he did not know that these packages contained what they did. If he did he is charged with notice of their contents, and is guilty; if he did not, he is not charged with such notice, and is not guilty; and as the evidence tended to show he did, and the court ruled the point immaterial, the case must go back for a new trial." In Frost v. Eastern Railroad Co., New Hampshire Supreme Court, March 11, 1887, the ground of the action was that the defendant was guilty of negligence in maintaining a turn-table insecurely guarded, which being wrongfully set in motion by older boys, caused an injury to the plaintiff, who was at that time seven years old, and was attracted to the turn-table by the noise of the older and larger boys turning and playing upon it. The turn-table was situated on the defendant's land, about sixty feet from the public street, and in a cut with high, steep embankments on each side, and the land on | It was each side was private property and fenced. fastened by a toggle, which prevented its being set in motion unless the toggle was drawn by a lever to which was attached a switch padlock, which being locked, prevented the lever from being used unless the staple was drawn. At the time of the accident the turn-table was fastened by the toggle, but it was a controverted point whether the padlock was then locked. When secured by the toggle, and not locked with the padlock, the turntable could not be set in motion by boys of the age and strength of the plaintiff. Upon these facts we think the action cannot be maintained. The alleged negligence complained of relates to the construction and condition of the turn-table, and it is not claimed that the defendant was guilty of any active misconduct toward the plaintiff. The right of a land-owner in the use of his own land is not limited or qualified like the enjoyment of a right or privilege in which others have an interest, as the use of a street for highway purposes under the general law, or for other purposes under special license (Moynihan v. Whidden, 143 Mass. 287), where care must be taken not to infringe upon the lawful rights of others. At the time of his injury the plaintiff was using the defendant's premises as a play-ground without right. The turn-table was required in operating the defendant's railroad. It was located on its own land, so far removed from the highway as not to interfere with the convenience and safety of the public travel, and it was not a trap set for the purpose of injuring trespassers. Aldrich v. Wright, 53 N. H. 404; S. C., 16 Am. Rep. 339. Under these circumstances the defendant owed no duty to the plaintiff, and there can be no negligence or breach of duty where there is no act or service which the party is bound to perform or fulfill. A land-owner is not required to take active measures to insure the safety of intruders, nor is he liable for an injury resulting from the lawful use of his premises to one entering upon them without right. A trespasser ordinarily assumes all risk of danger from the condition of the premises, and to recover for an injury happening to him he must show that it was wantonly inflicted, or that the owner or occupant, being present and acting, might have prevented the injury by the exercise of reasonable care after discovering the danger. Clark v. Manchester, 62 N. H.-; State v. Railroad, 52 id. 528; Sweeny v. Railroad, 10 Allen, 368; Morrissey v. Railroad, 126 Mass. 377; S. C., 30 Am. Rep. 686; Severy v. Nickerson, 120 Mass. 306; S. C., 21 Am. Rep. 514; Morgan v. Hallowell, 57 Me. 375; Pierce v. Whitcomb, 48 Vt. 127; S. C., 21 Am. Rep. 120; McAlpin v. Powell,, 70 N. Y. 126; S. C., 26 Am. Rep. 555; St. Louis, V. & T. H. R. Co. v. Bell, 81 Ill. 76; Gavin v. City of Chicago, 97 id. 66; S. C., 37 Am. Rep. 99; Wood v. School District, 44 Iowa, 27; Gramlich v. Wurst, 86 Penn. St. 74; S. C., 27 Am. Rep. 684; Cauley v. Pittsburgh, C. St. L. R. Co., 95 Penn. St. 398; S. C., 40 Am. Rep. 664; Gillespie v. McGowan, 100 Penn. St. 144; S. C., 45 Am. Rep. 365; Mangan v. Atterton, L. R., 1 Exch. 239. The maxim that a man must use his property so as not to incommode his neighbor only applies to neighbors who do not interfere with it or enter upon it. Knight v. Abert, 6 Penn. St. 472. To hold the owner liable for consequential damages happening to trespassers from the lawful and beneficial use of his own land would be an unreasonable restriction of One recover damages sustained by a subsidence as in Backhouse v. Bonomi. The defense was that the cause of action for the subsidence had been satisfied, and to overthrow this defense plaintiff replied, that the action was brought for a subsequent subsidence. On demurrer this avoidance of the defense was held bad, The case is clearly in conflict with Backhouse v. Bonomi, and as the latter is a more recent and authoritative adjudication, the case of Nicklin v. Wil liams, must be regarded as overruled. In Lamb v Walker, 2 Q. B. Div. 389, the question was again presented under similar facts. The decision was the same as in Nicklin v. Williams, but the lord chief justice dissented, and his reasoning is unanswerable. Finally the Court of Appeals in Mitchell v. Darley Main Colliery Co., 14 Q. B. Div. 125, reviewed the whole question and came to the only sound conclusion that each new subsidence created a new cause of action. It is true that the question did not arise under the plea of a former recovery. The defense was the statute of limitations, but the court could not decide as it did, that the claim for damages was not outlawed, without in effect holding that the new subsidence gave a new cause of action on which a recovery could be had even though a recovery had been had for the first subsidence. It is immaterial whether the cause of action for the first subsidence has been satisfied by a recovery or is barred by the statute of limitations. In either case no new action can be maintained for a new sub his enjoyment of it. We are not prepared to adopt the doctrine of Railroad Co. v. Stout, 17 Wall. 657, and cases following it, that the owner of machinery or other property attractive to children is liable for injuries happening to children wrongfully interfering with it on his own premises. The owner is not an insurer of the safety of infant trespassers. having in his possession agricultural or mechanical tools is not responsible for injuries caused to trespassers by careless handling, nor is the owner of a fruit tree bound to cut it down or inclose it, or to exercise care in securing the staple and lock with which his ladder is fastened, for the protection of trespassing boys who may be attracted by the fruit. Neither is the owner or occupant of premises upon which there is a natural or artificial pond, or a blueberry pasture, legally required to exercise care in securing his gates and bars to guard against accidents to straying and trespassing children. The owner is under no duty to a mere trespasser to keep his premises safe, and the fact that the trespasser is an infant cannot have the effect to raise a duty place because of the excavation made in 1868, no new where none otherwise exists. 'The supposed duty has regard to the public at large, and cannot well exist as to one portion of the public and not to another, under the same circumstances. In this respect, children, women and men are upon the same footing. In cases where certain duties exist, infants may require greater care than adults, or a different care; but precautionary measures having for their object the protection of the public must, as a rule, have reference to all classes alike.' Nolan v. New York, N. II. & H. R. Co., 53 Conn. 461." See notes, 40 Am. Rep. 667; 38 id. 72; 31 id. 206; Messenger v. Dennie, 137 Mass. 197; S. C., 50 Am. Rep. 295. THE FUTURE DAMAGES. II. HE cases in which lateral or subjacent support has been removed have been referred to but not cited. They will now be considered. In Backhouse v. Bonomi, 9 H. L. Cas. 503, the action was brought to recover damages by reason of the subsidence of the superior tenement caused by an excavation of the underlying stratum; and the defense was that more than six years had elapsed since the completion of the excavation, but the House of Lords held that this fact constituted no defense, as the subsidence had taken place within six years before the commencement of the action. It was held that the excavation being lawful when made never became unlawful for the purpose of giving a cause of action, but was the cause of the cause of action which was the subsidence itself. The cause of action therefore did not accrue till the subsidence took place, and the statutory time commenced running then and not before. In Nicklin v. Williams, 10 Ex. 259, the action was to sidence, unless such subsidence create a new and independent cause of action. The excavation which caused the subsidence in the case was made in 1868, and subsequently plaintiff was damaged by the subsidence of his land. In 1882, a new subsidence took excavation having been made, and the one made in 1868 not having been disturbed since that time. It was claimed in the action brought to recover the damages sustained by the new subsidence, that when the first subsidence occurred the cause of action was complete, and that the second subsidence was but an element of the damages flowing from the digging of the excavation which was the cause of action and did not create a new cause of action. This sophistry was brushed aside by the court. Brett, M. R., writing the opinion, based the decision of the court partly on authority but mainly on principle. He agrees with the argument of the counsel for the plaintiff, which he expresses in the following language: "The reply on the part of the plaintiff is this, the fact of the defendants' excavating these minerals gave him no cause of action; it did him no injury by itself, they had a right to do it, their mines were their own property, and they had a perfect right to do what they liked with their own, so long as they did not hurt him. When they excavated the minerals which were their own property, if they had then and there taken means to prevent the sinking of the plaintiffs' property he would have had no cause of action against them. What they did in excavating was perfectly lawful, if they had taken care that in so using their property they did not hurt him. But in 1868, or immediately afterward they did something which did give him a cause of action, that is, they caused his land to subside, and that subsidence caused by them was his cause of action. They caused that subsidence by mining, and by not propping, so as to prevent the plaintiff's land subsiding afterward. That cause of action was settled between them when they repaired his houses, but now they have done him a new and wholly independent injury; they have caused his land to subside again. It is true that in this case, it is the same spot as before, but it might have been a hundred yards off. It is a new subsidence. They have caused that subsidence by the excavation of the minerals in 1868, and by not having filled up that |