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amendment or amendments, by a majority of the who want the old cases at all, will be content with electors qualified to vote for members of the Legis- | mere analyses, however weli executed. The neceslature, voting thereon, such amendment or amendments shall become part of the Constitution.” | diminished in the slightest degree by publishing
This clause defines the qualifications of those enti- | the old, or an analysis of them. We must be pertled to vote on amendments, namely, such as are mitted to doubt the assertion in the prospectus required of those voting for members of Assem- that such a publication "seems to be demanded bly; and then it designates the requisite number, from every quarter." The only demand that reaches namely, a majority of such qualified electors vot- us from any quarter is to discourage the publicaing thereon, i. e., on the amendment. Such is the tion of any reports except the current decisions, practical construction it has always received, we and cheap and compact editions of old ones in full, believe, as for example in the election of the with notes and references to the new ones. twelve additional Supreme Court justices. This is an anomalous state of the law. One man can possibly change the Constitution! It ought not so to
NOTES OF CASES. be. If a majority of the voters at an election do not take interest enough in the question to vote I IN Bell v. Mahn, Pennsylvania Supreme Court, upon it, the fundamental law of the State ought 11 October 1, 1888, it was held that an opera is a not to be changed. A strong argument can be theatrical exhibition " within the meaning of an made in opposition to this construction of the Con
the Con- act providing for licenses for theatrical exhibitions, stitution, but we guess this is what the convention
circus performances and menageries. The court meant.
said: “A theater, among the ancients, was an edi
fice in which spectacles or shows were exhibited California is the land of prodigious vegetable for the amusement of the spectators, but in modern productions and extensive publishing enterprises. | times a theater is a house for the exhibition of draThe Bancroft Company - not the Bancroft-Whitney matic performances. A theatrical exhibition must Company - of San Francisco, have issued a pros- | be either such as pertains to a theater or to the pectus of a new series of reports, to be called the drama, for the representation of which the theater v American Law Reports.” The prospectus bewails is designed. Webster. A drama is a story reprethe enormous and constantly increasing number of sented by action. The representation is as if the reports, and proposes to alleviate it by issuing some real persons were introduced and employed in the more. Not a series of selected leading cases, from action itself. It is ordinarily designed to be spoken, the beginning of our system down to this time, but | but it may be represented in pantomine, when the rather an extensive digest -"clear, concise and ac- | actors use gesticulation, sometimes in the form of curate analyses of all the important original decis- | the ballet, but do not speak; or in opera, where ions." The language quoted is the closest descripc | music takes the place of poetry and of ordinary tion of the intended publication which we can find speech, and the dramatic treatment is essentially in this rather vague and visionary prospectus. It different from either. An opera' is defined: 'A is proposed to give ten volumes to the first half | musical drama, consisting of airs, choruses, recitacentury of our reports, twenty-five to the second, | tions, etc., enriched with magnificent scenery, mas and "fifty or seventy-five" to the third. Inas- l chinery and other decorations, and representing much as the Bancroft-Whitney Company and Mr. some passionate action.' Webster. The spoken John D. Parsons, Jr., have already given us nearly | drama therefore, and the opera, agree in the method if not quite all the important cases in full, with ex- | or manner which is essential to the dramatic art, tensive notes, down to the present time, in the viz., imitation in the way of action. In the former, American Decisions and American Reports, which it is true, the actor observes the rules of rhetoric have been widely sold, our soul cries out against
widely sora, our soul cries out against and of oratory, and follows the special laws of ura this new infliction. Spare us, good Bancroft! De- | matic delivery; while in the latter he employs the vote thyself to thy little history of California in | power of music, both vocal and instrumental, as a one hundred volumes, which is mercilessly grind. | medium of artistic and passionate expression ing its way like a car of Juggernath, and let us | music however which is not arranged with relen poor lawyers sweat under the burdens we already
ence mainly to its melodic interest, but in Buco have. As for this old stuff we need no more of it. | form as to express not only the words but the Something too much of it already. Let the dead | thoughts, emotions and passions of the mind, such cases bury their dead. The old reports in this as joy, grief, hope, despair, etc., which the idea of State are practically superseded by those of the conception of the play may involve. The wordCourt of Appeals. It is noticeable in the briefs in setting, the orchestrazation, the musical intervalo, that court that the old reports are seldom cited. / and the composition generally, are all arranged to It is true, as the prospectus states, that the old serve the exigency of the passing sentiment, and w cases are the foundations of the law, but they have turn the subject of the story into the action of the been adopted in the new cases, and are no longer play. In short, the opera is composed with reser indispensable - indeed, are only valuable in a bis- lence to the declamatory power of music. It is com torical view. In our opinion, very few lawyers, I tended on part of the defendant that the essential
element of the opera is music; and of the drama, be effectively given, the opera would seem to be
obligations of an attorney. It is somewhat like the pupils to pay for school property which they may general distinction between crimes punishable by wantonly or carelessly break or destroy is not a rea. statute and moral delinquencies, to which men must sonable rule, and therefore not one which a teacher be left for their correction to the public sentiment may make and enforce by chastisement. The court of the community, or to religious principles, or to said: 6 Under our cases a school-teacher has the their general sense of right and wrong. * * * right to exact from pupils obedience to his lawful Now under the English system of law by which and reasonable demands and rules, and to punish counsel and attorneys practice in the courts of that for disobedience 'with kindness, prudence and procountry, and from which we derive most of our law priety.' And where in such case the punishment upon the subject, the attorney and the counsellor or is not administered with unreasonable severity : barrister have separate and distinct duties. All proceeding for assault and battery cannot be mainthis which Mr. Thomas undertook to do through tained against the teacher. Danenhoffer v. State, Mr. Eames belongs in that country to the attorney | 69 Ind. 295. The rule or rules to wbich the teacher at law, or the solicitor in chancery - the man who may thus enforce obedience must however be reanever appears in court at all, who gets up the testi- sonable, and whether or not such rules are reasonamony, who learns what witnesses will swear, or at ble is ultimately a question for the courts. Fertich least what the witnesses on his side will swear to, v. Michener, 111 Ind. 472. We think that a rule who endeavors to inform the barrister or counsellor requiring pupils to pay for school property which what will be proved on the other side and he, | they may wantonly and carelessly break or destroy having ascertained all this, puts that into a paper is not a reasonable rule, and therefore that teachers called a “brief.' That is the origin of the word | have no right to make and enforce such a rule by
brief' in the practice of the law. This attorney, chastisement of the pupils. The Swanton and if it is a case at law, hunts all this up, ascertains, careless destruction,' etc., amounts to nothing has his talk with his witnesses, learns from their more than carelessness. Railroad Co. v. Huffman, own mouths what things they will testify to, and 28 Ind. 287; Railroad Co. v. Graham, 95 id. 286 puts it down on paper, hands it to the barrister; 1 (296). Carelessness on the part of children is one and these are called “instructions' in the English of the most common, and yet one the least blamepractice. In those early days the lawyer made his worthy of their faults. In simple carelessness there speech before the evidence was offered. He says: | is no purpose to do wrong. To punish a child for "I am instructed that such and such things will be carelessness, in any case, is to punish it where it proven,' and he refers to his paper, and he relies | has no purpose or intent to do wrong or violate upon that instruction of the attorney; but he never | rules. But beyond this, no rule is reasonable has an interview with the witness, and it is consid which requires of the pupils what they cannot do. ered unprofessional for him to have any talk in ad- | The vast majority of pupils, whether small or laryance with a witness, even on his own side. But I ger, have no money at their command with which in this country that system has not prevailed. | to pay for school property which they injure or de There is no separation of the duties of an attorney | stroy by carelessness or otherwise. If required to and a counsellor. There is none in practice, although I pay for such property they would have to look to often those admitted to the bar are sworn in as their parents or guardians for the money. If the attorneys and counsellors both, but they perform the parent or guardian should not have the money, or functions of both; and so the lawyer, placed as Mr. | if they refuse to give it to the chiid, the child Thomas was, is very often compelled for himself to l would be left subject to punishment for not having have interviews with his own witnesses, and to as done what it had no power to do." The teacher certain what they will testify to in the matter; and | may chastise for fighting away from school. Hution in the same way he must seek, either from his | v. State, 23 Tex. Ct. App. 386; S. C., 59 Am. Rep. 776. client or somebody else, to know what will be the And for quarreling and profanity on way home. Diescase against him. Now in this double capacity | kins v. Gose, 85 Mo. 485; S. C., 55 Am. Rep. 387. May Mr. Thomas was seeking for light, and pursuing, not compel scholars to bring in firewood. State . as he supposed, the best interests of his client, as Board of Education, 63 Wis. 234; S. C., 53 Am. he swears; and I think did believe consistently | Rep. 282. with the proper course for a lawyer exercising both the function of an attorney and counsellor. I think | LICENSE-PAROL-REVOCABILITY-EQUIT. he was mistaken in the propriety of some of the
ABLE ESTOPPEL. efforts he made to discharge that duty. I should
VERMONT SUPREME COURT, OCT. 2, 1888. be sorry to have them prevail as the common modes of practice in this country. But having read all
CLARK V. GLIDDEN. the testimony in this case, and read the deposition | A parol license to lay an aqueduct to a spring of water om and sworn answer of Mr. Thomas, I cannot feel that one's land is irrevocable during the existence of the
aqueduct; and a court of equity, on the ground of equit he was morally guilty of such intentional miscon
able estoppel, will protect the licensee in the use of the duct as justifies his expulsion from the bar.”
a queduct, and will grant and continue ad injunction straining the owner of the spring from inte, rfering"
the aqueduct until its decay. In State v. Vanderbilt, Indiana Supreme Court, 1 APPEAL from Chancery Court. Bill in chancery. October 12, 1888, it was beld that a ruie requiring TA Heard on the pleadiugs and a special "master 8 10
port, September Term, 1886. Decree for the oratrix, an easement is a right in the owner of one parcel of and that the iujunctiou be continued in force during land, by reason of such ownership, to use the land of the existence of the aqueduct. The case appears in another for a specific purpose, not inconsistent with a the opinion of the court.
general property in the owner-a right which one proJ. P. Lamson, for oratrix.
prietor has to some profit, benefit or beneficial use,
out of, in or over the estate of another proprietor. S. C. Shurtleif, for defendants.
Pomeroy v. Mills, 3 Vt. 279; 2 Washb. Real Prop. 25. TYLER, J. The material facts reported by the mas The grant of an easement does not pass the realty to ter are that the oratrix and defendant owned adjoin
the grantee. It conveys an interest in the realty, it is ipg farms in Cabot; that the oratrix was about to lay
true; but that interest consists of a right of use, like an aqueduct from a small and insufficient spring on a way over land, or a right of aqueduct or drainage her farm to her farm buildings, when she had a con through it, while the general property remains in the versation with the defendant, in wbich he told her grantor. It is well settled that an eagement must pass there was a good chance for her to take water from a by deed or by prescription, while a mere license to do large spring on his farm, about the same distance from
a particular act or a series of acts on the lands of the the oratrix' buildings as her own spring. The de liceusor may be by parol; and yet Washburu (page feudant was making no use of the water, and told the 398) says that a license may be and often is coupled oratrix that it was not benefiting him, and she might with a grant of some interest in the land itself. It is take it if she wanted it. The master finds that the | apparent that the distinction between an easement parties understood they had made an agreement by and a parol license can not always be maintained, which the oratrix was to tako water from the defend- either in respect to the extent of the privilege or its ant's spring, but that they misunderstood each other duration. as to the terms of the agreement; the oratrix suppos | Iu 3 Kent Com. 592, it is said that the distinction is ing she was to bave the water for nothing, while the quito subtle, and that it becomes difficult in some of defendant understood that she was to pay him at least the cases to discerni a substantial difference between a dominal rent, so that she would not acquire title by them. The defendant's spring of water was a part of possess101). No sum or price was named as rent. The his realty, and the right claimed by the oratrix is a oratrix had a ditch dug for her aqueduct; but before right in the realty, together with an easement from having the logs laid, she saw the defeudant again, and the spring through the defendant's land to her own told him she would like some kind of a writing from land. The question therefore is whether this license, him; but he, understanding that she desired a deed, resting wholly in parol, had any validity; whether it declined to give it-saying that she required no writ was revocable at any time at the defendant's option, ing, and that she could take the water just as well even after the licensed act had been fully executed by without as with one. The oratrix then had the aque the oratrix. duct laid, 100 rods of which ran through lands of the It is clear that an interest in laud cannot be condefendant. After the logs were laid the pressure of veyed by parol, nor can an easement be created exthe water upon them was found so great that for a
cept by deed (Ang. Water-Courses, &$ 168-173); that liportion of the distance they had to be taken up and ceuses which in their nature amount to the granting irou pipes laid in their stead. All this was done with of an estate for ever so short a time are not good withthe defendant's knowledge and consent. The entire out deed (Cook v. Stearns, supra; Hewlins v. Shippam, expense of the aqueduct was $400. The defendant 5 Barn. & C. 2211, Dowl. & R. 783); and that a parol constructed a fence around the spring for its protec license, which, if given by deed, would create an easetion, and permitted the oratrix, without objection, to ment, is revocable although executed by the licensee. use the water for the space of three years, when he | As was said by Parker, C. J., in Cook v. Stearns: “A notified her that she must pay something for the use permanent right to hold another's land for a particuof the spring to prevent her getting title by posses lar purpose, and to enter upon it at all times without sion. She replied she had already got it, and refused his consent, is an important interest, which ought not to pay any thing; whereupon the defendant out off to pass without writing, and is the very object prothe water, which was the cause of this suit.
vided for by the statute.” It is further found that before this suit was brought | The defendant's counsel relies upon the above authe defendant conveyed his farm to the other two de thorities, and upon the statement of the law in Gould fendants, who are his sons, and who took the title Waters, $ 323, that “the more recent decisions and the thereto with full knowledge of the oratrix' claim to a weight of authority are to the effect that both at law right in the spring. It is also found that the right to and in equity, the doctrine that an executed license is take the water and to have the spring properly fenced irrevocable is confined to those licenses under which, by the defendant, together with a right to enter upon when executed, it cannot be claimed that any estate defendant's land to repair the aqueduct, is worth $50, or interest in lands passes, and to licenses which are or an annual rental of $3. Also that the taking of the I given upon a valuable consideration. water by the oratrix was of no benefit or advantage to In Houston v. Lafree, 46 N. H. 505, the court said the defendant. The oratrix put in her aqueduct, and 1 that while it had been held that where a license beincurred large expense about the same, pot as a tres came executed by an expenditure incurred it is either passer, but by the defendant's license. It is insisted irrevocable or cannot be revoked without remuneraby her that the license, having been executed on her tion, on the ground that a revocation would be fraudpart, was either irrevocable, or could only be revoked | ulent and uncouscionable, yet the more recent decisafter she bad received the full benefit of her expendi ions sustain the doctrine that the license is in all cases ture. The defendant, on the other hand, claims that revocable so far as it remains unexecuted, or so far as the right to the water of the spring was an interest in any future enjoyment of the easement is concerned," the realty, and that the doctrine that executed lic Redfield, J., in bis note to his opinion in Hall v. Chafcenses are irrevocable is confined to those cases in fee, 13 Vt. 150, recognizes this to be the law. which no interest in the land passes, and to licenses The courts, both in this country and in England, that are given on a valuable consideration.
have held variously upon this subject. As was said by A license is defined to be an authority given to do the vice-chancellor in Iron Co. v. Wright, 32 N. J. Eq. some act, or a series of acts, on the land of avother, 248: “The adjudioations uponjtbis subject are numerwithout passing any interest in the land (Cook v. ous and discordant. Taken in their aggregate,they canStearns, 11 Mass. 537; 1 Washb. Real Prop. 398); wbile | not be reconciled; and if an attempt should be made
to arrange them into harmonious groups, I think some year and a half afterward the defendant obstructed of them would be found to be so eccentric in their ap- the ditch. Upon a bill being brought praying for a plicatiou of legal principles, as well as in their logical | specifio performance of the agreement, the court beld deductions, as to be impossible of classification."
that there had been a sufficient part performance to In the case last cited, it was held that a contract take the case out of the statute of frauds. In that case giving a party an exclusive right to dig ore in certain there was a consideration for the license, but the de. lands, no estate or interest in the lands being granted, cision went on the ground that a revocation operated is a license, and not a grant or demise. The vice as a fraud on the orators. See Stark v. Wilder, 36 Vt. chancellor quotes from numerous cases wherein it is 752. “Where one of the two contracting parties has held that a license is a mere personal privilege; that been induced or allowed to alter his position on the even where money has been paid for it it is revocable faith of such contract, to such an extent that it would at law, at the pleasure of the licensor; that the death be fraud on the part of the other party to set up its of either of the parties will terminate it; that even invalidity, courts of equity hold that the clear proof of when under seal the licensor may revoke it at will; the contract, and of the aots of part performance, will and when it affects lands a conveyance of them will take the case out of the operation of the statute, if the revoke it. But be adds: “These rules do not how acts of part performance were clearly such as to show eper apply when an interest is coupled with the li- | that they are properly referable to the parol agreecense, or an interest is created by an execution of the ment." Williams v. Morris, 95 U. S. 444. license." And he lays down the rule, that except in In this case there was a clear agreement between the cases where it appears that the authority or privilege parties that the oratrix should lay an aqueduct. Thes given has been so far executed that its withdrawal | misunderstood each other only in regard to the con• will amount to a fraud, a license, whether created by | sideration. We think the defendant is equitably parol or oy writing uuder seal, is always revocable. estopped from interfering with the aqueduct during The oratrix would be remediless by the strict rules of its existence. That should be the duration of the law. Is she entitled to equitable relief upon the facts estoppel bar, and no use short of that would give reported?
the oratrix the full benefit of her expenditure. In the In Ang. Water-Courses, section 318, it is said that in earlier New Hampshire cases it was held that a license equity licenses executed are taken out of the statute to build a dam or a bridge on another's land was irreof frauds; and that relief may be had in equitable vooable while the structures continued, but might be tribunals by the licensee. This is not upon the ground terminated by their decay. Woodbury v. Parshley, 1 that the right passes by parol license or agreement; N. H. 237; Bridge v. Bragg, 11 id. 102. but that where one party has executed it by payment The case of Allen v. Fiske, 42 Vt. 462, is similar in its or agreement, taking possession and making valuable facts to the present one. While the court held in that improvements, the conscience of the other is bound to
case that the defeudant had the right of revocation, carry it into execution. The author cites the case of | and that the contract between the parties was not Short v. Taylor, 2 Eq. Cas. Abr. 523, pt. 3, where one sufficiently clear to warrant a decree for specifio perparty stood by and saw his water-course diverted,
formance, yet as the orators laid the aqueduct with and instead of preventing it, encouraged the work,
defendant's permission, their right to receive the full and afterward brought his action at law. The defend
benefit of their expenditure by the use of tbe first aut, on application to the Court of Chaucery, obtained
aqueduct while it lasted, before such revocation would au injunction.
take effect, was fuliy recognized. It was held that the A leading case is Rerick v. Kern, 14 Serg. & R. 267,
orators had not a right, after notice of revocation, to where it is held that an executed license, the execu- l lav another aqueduct, the first having decayed. tion of which has involved the expenditure of money
It seems that at law the licensor may revoke bis ll or labor, is regarded in equity as an executed agree
| cenge at any time, even after the licensed act bas been ment for valuable consideration, and as such will be
executed that a sale of the realty upon which the right enforced, even when merely verbal, and relating to rests is deemed to be an act of revocation (Stevens V. the use or occupation of real estate. It 18 urged in this Stevens, 11 Meto. 251); and that such license could not case that the defendant was not guilty of bad faith in
be enforced against the bona fide purchaser of the interrupting the aqueduct. But it is not necessary
18 not necessary | realty without notice. But wben the licensor has that active fraud should be found. Relief must be stood by and allowed the licensee to perform acts and granted, if at all, upon the ground that the oratrix
spend money in reliance on his license, a court of laid her aqueduct by defendant's permission, and at
| equity will interfero, and protect the licensee in the great expense, and that the revocation of the license
use of the aqueduct until its decay, on the ground of operates as a fraud upon her.
equitable estoppei. in the case of Houston v. Laffee, above cited, the The decree of the ohancellor is affirmed, and cause court referred to several authorities to show that when
remanded under a mandate that the injunction rethe parties cannot be placed in statri quo the court of
main in force so long as the present aqueduct lasis; equity wili grant relief, as in any other case of part with the right in the oratrix and her heirs and assigns, performance of a parol contract for the sale of land, during that time, of repairing the same as may be upon the ground of preventing fraud. Judge Redfield.
necessary to keep it usable, but not with the right of in the note before referred to, assigus the same ground
making any repairs that shali in any just sendo for granting equitable relief, and in his opinion ho
amount to a renewal of the aqueduct itself; on Cobu says: “Doubtless a parol license to flow water back
tion that the oratrix pay the defendant au annual upon land, when once executed, becomes irrevocable,
rental of $3 while the aqueduct continues, including to some extent, in equity, aud this although it may be
$3 for each year since it was laid. an interest in land."
Iu Adams v. Patrick, 30 Vt. 516, the defendant permitted the orators to dig a ditch from their mill
RAILROAD- BONDS- EXTENSION OF PAYthrough his laud to take away the waste water from
MENT-COUPONS-NEGOTIABILITY. their wheel-pit, in consideration that they would build a substantial wall for him along the bank of the
NEW YORK COURT OF APPEALS, OCTOBER 2, 1888. stream. In reliance upon this permission the orators lowered their water-wheel, dug a ditch, and incurred
MCCLELLAND V. NORFOLD SOUTH, R. Co. other expenses, and built a wall for the defendant, I
une derendant, Defendant executed a mortgage, providing that on dela though not so substantial a one as was agreed. Some! for six months in the interest on the bonds secure