Counsel are always able and learned, and opinions are always luminous, sound, convincing, exhaustive and the like. Even law magazines are complimented, as witness the following: "The elaborate briefs used on the one side or the other, in the above appeal, and as given at length in the Western Reporter, will be found of incalculable value to the practitioner on this and kindred subjects." A statement of the price of the periodical would not have suprised us. We do not approve the writer's custom of citing cases by the official report and also by law magazines in which they have appeared, even when he cites this journal. Still more seriously do we object to an extract from "an able law journal" in support of "Professor Dwight's" opinion on a reference. Perhaps however these are mere matters of taste. One of the best features of the work is the index of one hundred pages, although it does start off with: "Abbott, C. J., opinion of," etc., and winds up with: "Wren, Sir Christopher, reference to his architectural productions." The book is handsomely printed.

* ** *

NEWMARK ON SALES.

The Law of Sales of Personal Property, as now established in the United States and Great Britain. By Nathan Newmark of the San Francisco Bar. Bancroft, Whitney & Co., San Francisco, 1887. Pp. 617, 696. This work is as the author states, an "attempt to present," within as small compass, in a suggestive manner, the sum and substance of the present law of the subject stated, as it is determined by English and American courts." A careful examination of the book has convinces us that the author has given to the profession a volume on this branch of the law that can take its stand at once by the side of any of its predecessors. The statements of the text are concise and we believe accurate, and the arrangement excellent, while the references to authorities show an untiring diligence in research, which can and only will be appreciated by those who are so fortunate as to possess a copy of the book.

A very full index puts the contents at the immediate service of those who may have occasion to consult it. It is safe to say that there is at least one-third more matter in this volume, than in the average full size text-book.

JACOBS' LAW OF DOMICILE.

A Treatise on the Law of Domicile, National, quasi-national, and municipal, based mainly upon the decisions of the British and American courts. With illustrations from the Roman law and the modern continental authorities. By M. W. Jacobs. Boston: Little, Brown & Company, 1887. Pp. xlv, 600.

The subject of this work is quite novel. It is the first American treatise upon it in an independent form. The importance of the subject is easily recognizable, especially in regard to divorce, voting, pauper settlements, and students. The writer treats of charge and reverter of domicile; of the domicile of infants, married women, paupers, non compotes, prisoners, refugees, invalids, soldiers, sailors, public officers, ambassadors, consuls, and students; and of the criteria of domicile. He has treated the subject in a large manner, subordinating his authorities to their proper place as illustrations, thus producing a treatise in its true sense rather than a dry digest, or patch-work or crazy-quilt of decisions. The method and treatment are quite admirable in this respect. At the same time the book does not lose its appropriate value as a means of reference. We have found much more consecutive interest in the treatise than in most that come under our notice, not only from the comparative freshness of the subject but from the excellence of the treatment. In these respects it reminds

us of Prof. Tiedemann's treatise on the Police Power. The work should find its way into the libraries of all liberal lawyers.

FOSTER'S FEderal JudiCIARY ACTS. The Federal Judiciary Acts 1875 and 1887, with an apendix containing the equity rules, annotated by Roger Foster of the New York Bar. New York. L. K. Strouse & Co., 1887. Pp. 109.

The first fifty-nine pages of this book are devoted to the judiciary acts and the annotations thereof; the latter taking up about three-fourths of the matter; which is a good indication that the editor's labors have exhausted the subject-matter. The book no doubt will find ready acceptance among the practitioners in the Federal courts, as they cannot afford to be without it. The Equity Rules in force, July 1, 1887, are added, and a good index of twenty-three pages completes the work.

Judgment affirmed with costs-James H. Hooker, respondent, v. City of Rochester, appellant; Solomon M. Schwartz et al. appellant, v. Joseph Hyman, respondent; Susan Petit, respondent, v. Asa Petit, appellant.-Judgment reversed, new trial granted, costs to abide the event-Arba Briggs, appellant, v. John Longford et al. respondents.- -Motion for reargument denied with costs-Joseph H. Berry et al. respondents, v. Andrew Brown, appellant.-Motion to dismiss appeals granted with costs-Daniel Smith, administrator, etc., respondent, v. Robert Meaghan, et al., appellants, and Stephen Tabor v. Maria Brundage; Appeal of Joseph V. Dana, v. R. Eldredge, Jr., purchaser, respondent.- -Motion to advance cause denied without costs-The People, respondent, v. Joel Sherwood, et al. executors, appellants.

NOTES.

Mr. Charles C. Soule, publisher and dealer in law books, of Boston, Massachusetts, has issued a "Short Catalogue of Law Books Illustrated with Portraits of Legal Authors." The ALBANY LAW JOURNAL enumerates the sitters as "including Messrs. Wood, Schouler. Stimson, Chamberlayne, B. V. Abbott, Ewell, Jones, Sheldon, Indermaur, Cohen, Henry Austin, and another -a fine array of intellectual beauty, excepting that other." Who "that other," so modestly named is, must be left to be guessed; but the estimate of the portraits in question cannot be indorsed. The idea, which appears to be entirely new, seems intended to satisfy the curiosity expressed in the lines: "Still the wonder grew that one small head could carry all he knew." It may therefore be as well to say at once that each author has but one head.-London Law Journal. You are "away off," brother. Our grammar is unimpeachable. Pray may we not say, "The array of jurors was accepted excepting one?" Besides, why should not " we "have more than one head? And how can you know, with your narrow and insular notions, that American editors do not habitually have more than one head?"

In speaking of the abolition of the rule in Shelley's case in Alabama, Stone, C. J., says in McQueen v. Logan, 80 Ala. 307. "Alabama can now share with New York in the touchingly beautiful tribute paid to it by the learned and classical Kent, 4 Com. *283." This reminds us of Mark Twain's weeping over the tomb of Adam.

the United States Circuit Court, on the subject of cumulative sentences, from which we make the following extracts: "In the State of Ohio, as held in the case of Williams v. State, 18 Ohio St. 46, the Supreme Court declared the common law of Ohio to be such that cumulative sentences could be imposed, and by a great majority of cases in England, especially the recent cases, cumulative sentences are recognized as proper under the common law of that country, but by the common law of Kentucky and by the common law of Indiana, as interpreted by the Supreme Courts of these States, cumulative sentences are not recognized; and now if this court should follow the common law as expounded by the highest court in the State where the case is tried, which is the rule recognized by Judge Nelson in the Albro case already referred to, and make that a warrant for a cumulative sentence, it would be equally bound to follow the common law of the State of Kentucky in a case arising there, where, according to the decisions of the highest court of the State, cumulative sentences are not recognized as legal, and the result would be that for precisely the same offense under the United States law a defendant convicted in the State of Ohio might be subjected to a heavier punishment than could be imposed in Kentucky. The consideration is well nigh conclusive. In Ex parte Lang, 18 Wall. 62, the Supreme Court seemed to be of the opinion - although it is not perhaps directly stated (it is plainly intimated in the dissenting opinion in that case) — that it regards a sentence as an entirety. If this be so, the result of that might be that a cumulative sentence would invalidate the entire sentence. This court therefore, after a careful consideration, has come to the conclusion that the gravity of this case is such that it would not be warranted in taking any doubtful course in the imposition of sentence upon this defendant, and that it is the duty of the court to keep itself safely within a safe course. The motion for a cumulative sentence is therefore overruled."

NOTES OF CASES.

IN Neitzey v. Railroad Co., 5 Mack. 34, it was held

that a railway is not a nuisance because of profanity in its neighborhood, unless it is shown that the profanity was practiced by its employees. The court said: "Now it is claimed that the company should not be charged with the profanity occurring in that neighborhood, and we hardly see how it can be properly so charged. We have seen a case in the books in which a man was held responsible for something like this: where he gave an entertainment on the common or highroad which attracted many disorderly, noisy and unruly people, he was held responsible for the nuisance occasioned by them. But that was a case where the very business in which he was engaged invited people of that class. It was a part of his entertainment, and a necessary incident of it that this nuisance should be created. This instruction does not show that

the profanity complained of was practiced by the persons employed by the defendant at all. In fact the evidence shows that it was due probably to the tramps and outsiders congregated there for the purpose of picking up loose scraps and pieces of coal, and things of that sort. The business transacted by this company did not certainly invite profanity or the crowd on that street; it was not at all incident to the prosecution of the business that they should assemble there and blaspheme, and we do not think the defendant properly chargeable with that part of the grievances complained of."

In Pullman's Palace-Car Co. v. Pollock, Texas Supreme Court, Oct. 28, 1887, plaintiff paid for a berth in a sleeping-car of defendant. Entering the car he placed his valise on the floor in the smokingroom. He went out of the car for a short time at a station, leaving the conductor and porter in the car. Returning, he found his valise missing. Held, that the sleeping-car company is responsible. The court said: "Enough appears to show that the appellant assumed to the appellee the duties of a carrier, and while it is evidently true that it did not assume the duties and liabilities which the common law imposes upon common carriers as to ordinary freight, or the liabilities which the innkeeper assumes to guests, yet we see no reason why it should not be held responsible, just as any common carrier would be held responsible for a failure to perform the duties which devolve upon the common carrier in relation to the baggage of a passenger which is not given into the carrier's exclusive custody. The true rule in this class of cases we believe to be that asserted by the Supreme Court of Massachusetts in the case of Lewis v. Sleeping- Car Co., 143 Mass. 269; S. C., 56 Am. Rep. 852. In that case it is said 'that while it is not liable as a common carrier, or as an innholder, yet it is its clear duty to use reasonable care to guard the passengers from theft, and if through want of such care the personal effects of a passenger, such as he might reasonably carry with him, are stolen, the company is liable therefor. Such a rule is required by public policy, and by the true intent of both the passenger and the company, and the decided weight of authority supports it. Sleeping-Car Co. v. Diehl, 84 Ind. 474; Palace-Car Co. v. Gardner, 3 Penny. 78; Palace- Car Co. v. Gaylord, 23 Am. Law Reg. 788.' The facts that a railway company to whose train a sleeping-car may be attached may not own such car or control its internal management, and that the same may be under the control of a company who does own and operate such car, and that the main compensation for transportation may be paid to the company to whose train the sleeper is attached, do not deprive the company so owning and operating a sleeping-car of the character of a passenger carrier; for the contract of such a company is not only that the passenger may sit and sleep in the car during the journey for which he contracts, but it goes further, and binds the owner of such car to transport the passenger in

the States General to the West India Company, that the colony was to be governed by the ordinances of the company, and in default of these, by the civil law. Any roads therefore which were laid out during the Dutch occupation were governed by the civil law in respect to their creation, discontinuance and the ultimate ownership of the fee. Hoffman Corporation, 92 ff. The civil law gave the fee of a highway to the State, subject to the public use, and left no title to the fee in the adjoining owners. Hoffman, 305, and authorities cited. In this it differed from the common law by which each adjoining proprietor owned the fee of one-half of the road-bed, subject to the public easement. Jackson v. Hathaway, 15 Johns. 447; Matter of John and Cherry Sts., 19 Wend. 659. The result is that on the discontinuance of a highway, the fee of the road-bed vested, by the civil law, in the State, by the common law, in the adjoining owners, one-half to each. It is evident therefore that the fee of all the roads opened on Manhattan Island during the Dutch occupation vested in the State, and passed to the English crown on the conquest of the island by the English in 1664. Dunham v. Williams, 37 N. Y. 251.

Thereafter in the year 1686, Governor Dongan, granted to the mayor, aldermen and commonalty of the city of New York, all the vacant and unoccupied lands on Manhattan Island not already granted, and all the streets, lanes and highways within the city of New York and Manhattan Island; so that the fee of all the Dutch roads, and of all the land not previously granted by the Dutch or English patents vested in the corporation of New York. The principal grant that it is important to notice is that of the Harlem Commons, so-called, which were granted to the freeholders of Harlem by Governor Nichols in 1666-7, and confirmed by charter of Governor Dongan in 1686, previous to his charter to the corporation of New York. The line between the lands of Harlem and New York ran nearly north and south, from a point on the Hudson river near One Hundred and Thirtieth street to a point on the East river near Seventy-fifth street. Several roads were opened through these Harlem Commons before they were divided among the freeholders, and it is a question whether the fee of such roads became vested in the town of Harlem, and thus later in the city of New York, or whether it passed to the adjoining owners at the time of the division. In regard to New York, it is clear that the city owns the fee of all the Dutch roads, and of all roads and streets laid out through the lands granted by Dongan's char

ter.

In course of time, as the city grew northward, and new streets were opened, some of the old roads were disused, and were fenced in by the adjoining owners on both sides, who conveyed the road-bed so fenced in under a claim of title. Let us take a case of this kind, assuming for the purposes of the discussion that it was a Dutch road, the fee of which was in the city.

The first question that occurs is whether a highway can legally be discontinued by private means. It does not matter whether the road is recorded or not. Any road used for twenty years prior to March 21, 1797, 18 by law a highway, though not recorded. Laws 1813, chap. 33. § 24. It is subject therefore to the laws of the States in respect to the closing or discontinance of highways in the cities or townships of the State. The latter are governed by the general highway laws, in which the methods of closing and discontinuing roads are specified. 1 R. S. 513, ff. Under this act, the commissioners of highways, of their own motion, or on petition of a property-owner of the township, have power to close and discontinue the road. The proceedings are minutely specified, and there is no provision for the closing of a road by private persons, or by any other method than that set forth in the act.

Roads and streets in cities are governed by provisious in their charters, or by specific legislation as to particular cities. By the Laws of 1818, chap. 213, the mayor, aldermen and commonalty of the city of New York, if they wished to alter or close any existing street, road, etc., were authorized to apply to the Supreme Court, for the appointment of three commissioners of estimate, who were to appraise the damage sustained by property owners by reason of the closing of the street, road, etc. Their report was subject to the confirmation of the court. This power of applying for commissioners is at present conferred on the board of street openings, as to all streets in the city south of Fifty-Ninth street, and on the department of public works as to all streets north of Fifty-Ninth street, except in the Twenty-Third and Twenty-Fourth wards. Laws of 1873, chap. 335, Laws 1882, § 1010, etc., Consolidation Act. In this case also there is no provision for the closing of a road by any except the regularly constituted authorities.

It would seem therefore that the action of an adjacent owner in fencing in a portion of such road was unauthorized by statute and illegal. The highway, not having been legally discontinued, was still a highway; and any fence across it was an obstruction of it, and per se a nuisance. Driggs v. Phillips, 103 N. Y. 77; Hume v. Mayer, 74 id. 264. The obstructions might have been removed at any time by the authorities in the manner provided by statute; or by the common-law methods of indictment or abatement. Wetmore v. Tracy, 14 Wend. 250. Nor could any right be gained by prescription. It is well settled that no length of time will legalize a nuisance. Driggs v. Phillips, supra; Dygert v. Schenck, 23 Wend. 446, and the public still have an apparent right to have the road open as a highway.

It follows that the adjacent owners gained no title to the land inclosed by them by the common law and statutes, and we have already seen that they could have no title by the civil law, so that the title is still in the corporation of New York, either absolutely, or in trust for the use of the public.

It may however be said that the public easement has nothing to do with the fee, and that the only right of the public is to have the road kept open. Since the public, by their failure to use the road, have justified the owners in believing that this right would never be exercised, it might be argued that the public easement is extinguished, and that the question of title is one simply between the city and the adjacent owners. The question then arises whether the city differs from an individual as to its ownership of land. It is evident that any private owner of this land would have lost his title by adverse possession on the part of the adjacent owners, and it is difficult to see how a municipal corporation can stand in any better position. See Robie v. Sedgwick, 35 Barb. 319. Certainly municipal corporations are not excepted from the statute of limitations. They have all the other incidents of ownership; why then are they not subject to adverse possession? We have assumed that the public easement is extinguisoed; but even if it were not, there is reason to believe that the fee of a highway may be transferred from one owner to another by adverse possession for more than twenty years, subject in any case to the public easement. Bliss v. Johnson, 94 N. Y. 235. In this case therefore the owner would have a perfect title against all the world, the only flaw in which would be the public right to have the premises kept open as a public highway, and it would seem that a regular legal discontinuance by the proper authorities would remove that flaw, and leave a perfect title in the adjacent owners.

This reasoning however proceeds upon the theory that the public easement may be lost by non-user.