and taxes, shall be exempt from any further inspections and from the pains and penalties of the abovenamed acts. § 2. Any company authorized by the first section of this act for the purpose of making guaranteed steam boiler inspections, and which have complied with the law set forth in the first section of this amended act, shall, at least once in each month, make and file returns under oath with the inspector in chief, except in the city and county of New York, and for said city and county with the board of commissioners of police, of all inspections made by them of steam boilers and of all certificates issued by them, and those at the time of making said return either in full force, unrevoked or canceled. Each and every company so authorized and making insurances under the provisions of this act, and failing to make said returns as aforesaid, shall pay the penal sum of fifty dollars for each and every failure or neglect to make and file said returns, the same to be recovered by suit to be brought by said inspector in chief, except in the city and county of New York, and in said city and county by said commissioners of police. § 3. This act shall take effect immediately. CHAP. 628. AN ACT to amend an act entitled "An act for the incorporation of villages," passed April twentieth, eighteen hundred and seventy. PASSED June 9, 1874; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. Section thirty-two of title eight of chapter two hundred and ninety-one of the Laws of eighteen hundred and seventy, entitled "An act for the incorporation of villages," is hereby amended so as to read as follows: § 32. All other general acts and laws of this State for the general incorporation of villages, are hereby repealed as to the future incorporation of villages, except sections ninety and ninety-one of chapter four hundred and twenty-six of the Laws of eighteen hundred and forty-seven, which sections shall form a part of this act, and shall apply to all villages already incorporated or which may hereafter be incorporated under this act. In case there shall be any village which has been incorporated under a general act or acts for that purpose, such act or acts shall continue to be of effect as to such villages so incorporated until they may become incorporated under this act; and after their becoming so incorporated, shall cease to be operative as to such village, except as controlled by the provisions of this act. § 3. Section three of title two of the act entitled "An act for the incorporation of villages," passed April twentieth, one thousand eight hundred and seventy, is hereby amended so as to read as follows: § 2. The president, treasurer, collector, and onehalf of the trustees, if an even number, shall be elected annually by the electors of the village, and, if an odd number, the smallest majority of them shall be so elected at one annual election, and the largest minority of them shall be so elected at the next annual election. At the annual election in the year one thousand eight hundred and seventy-five, the ballots shall designate which of the trustees therein named shall hold office for one year, and which for two years. The clerk and street commissioner shall be appointed annually by the board of trustees. § 3. Section five of title two of the said act is hereby amended so as to read as follows: § 5. All officers elected or appointed under this act shall hold their respective offices one year, except the trustees elected for two years, who shall hold their offices for two years; and the said officers shall so hold for the respective terms aforesaid unless sooner removed or disqualified, and until their successors shall be elected or appointed and qualified. § 4. This act shall take effect immediately. CHAP. 642. AN ACT declaratory of and to amend chapter five hundred and forty-nine of the Laws of eighteen hundred and seventy-three, entitled "An act to amend an act entitled An act regulating the sale of intoxicating liquors,"" passed April eleventh, eighteen hundred and seventy, and the act entitled An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed April sixteenth, eighteen hundred and fifty-seven. PASSED June 23, 1874; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. Section one of the act entitled "An act to amend an act entitled 'An act regulating the sale of intoxicating liquors,'" passed April eleventh, eighteen hundred and seventy, and the act entitled "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed April sixteenth, eighteen hundred and fifty-seven, is hereby amended so as to read as follows: § 1. Section two of the act entitled "An act to regulate the sale of intoxicating liquors," passed April eleventh, eighteen hundred and seventy, is hereby amended by inserting after the words "and shall be paid as other city officers are paid," the words following: Provided, that in the city of New York the commissioners of excise shall receive a salary not to exceed five thousand dollars a year each, to be fixed by the board of estimate and apportionment of said city, who shall annually fix such amount as may be necessary for hire of employees, rent and other necessary expenses of said board of commissioners, which amount shall be paid out of moneys received for licenses, and said commissioners shall receive no other compensation or emolument for services as commissioners; and provided further, that all excise moneys hereafter derived from licenses for the sale of intoxicating liquors by said commissioners, except as above provided, shall from time to time and in sums according to their discretion, be appropriated by the board of apportionment and estimate of said city by resolution of the said board to whatever benevolent, charitable or humane institutions may seem to such board deserving or proper, but no such resclution shall be valid unless adopted by the vote of a majority of said board, and the comptroller of said city is hereby authorized and directed to draw his warrants in favor of the corporations, societies or charitable institutions respectively mentioned in such resolutions according to the tenor thereof, and the chamberlain of said city shall pay such warrants out of the said moneys received for licenses, which are hereby directed to be deposited with and paid over to him within thirty days after it is received. § 2. This act shall take effect immediately. We issue with this number of the LAW JOURNAL, the INDEX, Title Page, etc., to vol. 9. Subscribers not receiving it should notify the publishers without delay. the revolution was adopted by us, none but the plainest principles were considered to be settled law until All communications intended for publication in the LAW passed upon by the courts. The early reports are full of such decisions, declaring this and that principle of the common law to be part of our law. The necessity of this is obvious, for in many cases there was a JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. Communications on business matters should be ad- departure from old principles. I suppose nothing dressed to the publishers. The Albany Law Journal. ALBANY, AUGUST 1, 1874. ANCIENT LIGHTS. In the LAW JOURNAL of June 20th, there is an article defending the old doctrine of ancient lights, and in criticizing the law of opposing decisions it is said that the grounds upon which they rest "are not that the doctrine is unreasonable in itself, nor that it is no part of the common law, nor that we did not inherit it from our ancestors, nor that it had been a rule of real | estate for sixty years; but the argument in all the cases is simply, 'that it was unsuited to this country.'" The writer also says that the change in the law was arbitrary, and that resort had been had to "judicial legislation." Even granting all this, what stronger reason could there be for changing the law, if necessary, than that it is unsuited to this country? was more firmly established than the common-law They are not One more example. By the English common law, from the time of Henry VIII, an estate from year to year could only be terminated by a six months' notice to quit, which must expire at the end of the year. This was adopted in New York (1 Johns. 327), but not in Massachusetts. 17 Mass. 287. While But, putting aside for a moment the question of the reasonableness of the doctrine, is it true, first, that this is a part of the common law which we inherited from our ancestors; or, second, that it was the rule of property in this country for sixty years? In regard❘ to the first point, we find in the old common law that even thirty or forty years uninterrupted use was not So, too, New York adopted the common law on enough to give the right. Bury v. Pope, Cro. Eliz. the subject of distress for rent. 3 Kent, 472. 118. It is true that the time of prescription was in North Carolina the whole law has been judicially afterward fixed at twenty years; but, still, the pre-❘ declared to be irreconcilable with the spirit of their sumption of a grant was left to the jury, who, even laws and government, and to be of no force in that under the direction of the court, would refuse so to State. Dalgelish v. Gandy, Cam. & Nor. Reps. 22. find where such presumption was "a tax upon con- Deaver v. Rice, Battle's Rep. 431. Thus examples science and good sense." The judges would then show that not even the plainest principles of the comgrant new trials. But in regard to ancient lights mon law can be considered settled here, until recogthere appear to be no decisions making mere enjoy-nized by the courts, if there is any question of their ment for twenty years an absolute presumption of a grant until very late, not until about 1780, according to Judge Bronson, in Parker v. Foote, 19 Wend., at which time such decision would not be authority here, but only argument. If, then, this was not settled law in England at the time of the revolution, it❘ must certainly be considered an open question here, with full liberty for the courts to decide the question. It is by no means certain, then, that we inherited this doctrine as a part of the common law. But, waiving this objection- even supposing that we did, it could not have been a fixed rule of property in this country until judicially decided so to be; because, though the common law of England at the time of being suitable. Such was the feeling in regard to ancient lights before the question was judicially settled. Kent says that the doctrine is not much relished in this country, and the decision of the court, when the matter was finally presented, confirms the idea that it had never been accepted in this State. I quote from Abbott's Digest, title Ancient Lights: "The English doctrine on the subject of ancient lights is not a part of our law, and an uninterrupted enjoyment of lights for twenty years or more does not give the party a right of action against his neighbor for stopping them." Parker v. Foote, 19 Wend. To sum up, then. It is not certain that the doctrine of ancient lights was common law at the time of the revolution, and so would be open to discussion here, but whether common law or not, if there is any question as to its being reasonable or suitable, it could not be considered adopted in this country until so decided by the court. In view of these facts this doctrine could hardly have been settled law for sixty years, and it can hardly be soberly asserted that by the decision in question, "the rule of property was changed, men disquieted in the enjoyment of long continued and valuable rights and the value of their estates diminished." It only remains then to show that the doctrine of ancient lights is unreasonable in itself. twenty or even forty years cannot strengthen this, or he has no such right, as where a new channel is made over my land, when an action will lie. It is this principle that makes the difference between ancient lights and other easements. This is especially clear if we look back at the Roman law of Servitudes, where this distinction was not recognized. That system not only allowed ancient lights, but easements of prospect, and that too when the lands were not adjacent. Hadley's Lectures on Roman Law. Clearly, under such a condition no land would be safe. Any one who had gazed upon the distant mountains over my lot for a length of time, might call, when I had made my fortune and was ready to build, and say: "I live over yonder. You must not spoil my view. You should not have put off building so long." The English law of easements was taken directly from the Roman, but not even a common-law fiction could sustain an implied grant in such a case. It became then a fixed principle that the dominent and servient estates must be adjacent. But even with this limitation, the acquisition of an easement of prospect could not be properly guarded against, and consequently this was not adopted in the common law. 3 Bl. 216; except by express grant. Aldred's case, 9 Coke, 58. Tindal, C. J., in Pennaider v. Ching, Moo. & Mal. 400. Had the above-mentioned principle been fully understood ancient lights would have shared the same fate, but the circumstances under which the law developed in England were different, the hardships not fully felt. All we have done in this country is to go a step further. We carry out the principle consistently. If there is no easement of prospect to be gained by prescription there can be none of light. If one rests on a wrong foundation so does the other. An easement is a servitude. The burden on the land consists in patiendo, not in faciendo. Nothing active has to be done by the owner of the servient estate. For example, no man can be compelled to keep up an artificial stream though he has done so for more than twenty years, and another has in consequence built a mill to be run by it. Tud. Cas. 120. Now, in general, this same principle applies where it is attempted to gain an easement by prescription. To prevent the success of such attempt nothing active has to be done on the land. An action of trespass in some form or another will cover all cases, for some aggressive act must take place on the land of another, which if not opposed may finally ripen into a presumed grant, but this can be prevented by action. We object to the old law of light as clearly opposed to this. For example, if a man wants a right of way over my land, or the drip from his roof to fall into my garden, I can stop him if I choose; I can sue him in the one case as a trespasser or have him enjoined in the other, and thus rebut all presumption of an implied grant. I am not obliged to build an impassable wall or flood my land, so as to make trespass impossible, nor to turn my garden into a building lot and put a house there to prevent the drip. But if my neighbor puts his windows overlooking my lot, this is not a trespass. No burden has been placed on my land which is actionable. 13 Wend. 261. In my own experience, A., in the city of Chicago, had enjoyed light over B.'s vacant lot for seventeen years. B., not wishing to have any question about an easement, asked him to sign an agreement not to claim one, which A., to annoy his neighbor, refused. B. had no remedy at law, for "there is no way at common law, as understood and applied in the English courts, of preventing, by interruption, the acquisition of an easement of light, except by the creation of some obstruction thereto by the owner of the land over which it is enjoyed." Cross v. Lewis, 2 B. & C. 686. He would therefore have been put to considerable trouble and ex-joyment of support for twenty years imposed this pense, had not the great fire summarily settled the question. Even in a so-called analogous easement, that of running water, my neighbor either has a natural right to its use, and then an enjoyment of It may be said that there are other easements to which this principle cannot be applied. It is true that a common wall where each builds his own half, will in twenty years become a party wall, and thus an easement is imperceptibly gained without any trespass. But this is a very different case. No burden is imposed upon one lot which is not equally shared by the other. My neighbor's wall gains a right of support to be sure, but, in return, must support mine. In other words, the burden and profit are mutual, and not all the profit to one, all the burden to the other. The only exception I can find is the easement of support gained by an ancient building. At common law the adjacent owner could excavate on his own land with impunity and if the building fell in consequence it was damnum absque injuria. But the en burden forever. This rule has been changed in New York city by a statute which gives the right of support at once, and although the easement is recognized elsewhere by the courts it does not seem right that one who does not, perhaps cannot, excavate his foundation for twenty years should then be unable to do so, because his neighbor has gained an easement of support which could not have been prevented in any D. way at law. SOME RECENT DECISIONS. The eleventh volume of the American Reports contains decisions selected from the recent reports of Alabama, Arkansas, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Missouri, New York, Rhode Island and Wisconsin. The volume contains some novel and many important decisions, of which a few only have we space to notice. In Trustees of First Evangelical Church v. Walsh, 57 Ill. 363, it was held that a Court of Chancery has jurisdiction to grant an injunction to restrain town officers from laying out a highway through a cemetery. This is put on the ground that there is no adequate remedy at law. The court says: "What, we may ask, would be the measure of damages at law, for the wounded sensibilities of the living, in having the graves of kindred and loved ones blotted out and desecrated by common highway travel?" This is a wholesome decision, and shows that law is something higher than the spirit of trade. Stevenson v. Loehr, 57 Ill. 509, is a novel case. It holds, that where a contract is made for the sale of land, the vendor to give a warranty deed on payment of the purchase-money, and intermediate the contract and the deed a portion of the land is condemned for a railroad, the damages for the taking of the land belong in equity to the purchaser, and he cannot treat such taking as an incumbrance and recover therefor on the covenants in the deed. In City of Clinton v. Phillips, 58 Ill. 102, a city ordinance, requiring druggists, licensed to sell intoxicating liquors for certain purposes, under heavy penalties to furnish quarterly statements, verified by their own, and the servants' and clerk's affidavits, showing the kind and quantity of liquor sold, and when and to whom, etc., was held unreasonable and oppressive, and an invasion of the sanctity of private business. The opinion is a model of brevity, although the court says: "Errors enough have been assigned, and points made, to afford opportunity to write a volume upon the powers of the legislature and of a city government." Reaper City Insurance Co. v. Brennan, 58 Ill. 158, was an action on a fire policy, containing a provision that "if the interest of the insured to the property be any other than the entire, unconditional, and sole ownership of the property," it must be so represented to the company and expressed in the policy. The plaintiff effected an insurance on property which had been sold on execution against him, but the time for redemption had not elapsed. Held, that the failure to disclose these facts avoided the policy. In State v. Morphy, 33 Iowa, 270, the important principle is laid down, that where a juror, who was not a drinking man, during the trial and before the jury retired, took some brandy and blackberry balsam as a medicine, without medical advice, it did not vitiate the verdict, it not being shown that the fact was not known to the prisoner and his counsel at the time and before the retirement of the jury, nor that the brandy-and-blackberry went to the juror's head. In Ottumwa Lodge v. Lewis, 34 Iowa, 67, it was held that when one owns the lower story of a building, and another the upper, with a right of way thereto, the latter cannot recover of the former for necessary repairs of the roof made by him. This may be good law, but it reminds us of the story of the mate of the down east schooner, who approached the quarter-deck and told the captain that there was a squall brewing, and he thought they had better come to anchor. To which the captain replied, "you take care of your end of the skewner, and I'll take care o' mine." The mate went forward and dropped the anchor, and returning said, "cap'n, my end of the skewner's tew anchor!" In Smothers v. Hanks, and Almonds v. Nugent, 34 Iowa, 286, 300, it is held that only ordinary skill and diligence is required of physicians and surgeons, and that their responsibility is not measured by the same rules that apply to mechanics and artisans. In Miller v. Hayes, 34 Iowa, 496, an action for breach of promise of marriage, evidence that after the commencement of the action the plaintiff declared that she "would not marry defendant any more than if he were a dog, if it was not for his property," was held inadmissible in mitigation of damages. Judge Cole, who seems a 'merry old soul," remarks, "the plaintiff may well have thought in view of the defendant's failure to keep his promise, and all that had occurred, that there was nothing desirable remaining to defendant except his property." To which we should add, that he had not even the dog's chief property, fidelity. The mooted questions of the power of telegraph companies to exempt themselves from liability comes up again in True v. International Telegraph Co., 60 Me. 9. The blank contained a condition that "the company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery of any message, beyond the amount received by said company for sending the same." This was held unreasonable and not to exonerate the company from liability for the real damages. In Commonwealth v. Vermont & Massachusetts Railroad Company, 108 Mass. 7, it was held, that a person, to whom defendants, in consideration of a certain sum of money and his agreement to supply the passengers on the trains with iced water, granted a season ticket over their road, and permission to sell popped corn on their trains, was a passenger and not a servant. Also, that the condition of the ticket, that the corporation assumed no liability for injuries which the holder might receive, did not absolve them from liability or indictment under a penal statute, for gross negligence. In Howe v. Hayward, 108 Mass. 54, each of the parties deposited with a third party, a sum of money to be forfeited in case of the breach of an oral agreement between them for the sale of property; held not to be earnest money within the statute of frauds. Here is a case that will cheer Miss Anthony's heart. "Beating or striking a wife violently with the open hand is not one of the rights conferred on the husband by the marriage, even if the wife be drunk or insolent." Commonwealth v. McAffee, 108 Mass. 458. In Briggs v. Ewart, 51 Mo. 245, defendant signed a promissory note, without reading it, being fraudulently induced by the payee to suppose he was signing a different instrument. Held, that the note was void in the hands of a bona fide holder for value before maturity. This conflicts with the doctrine of our courts. In Clarke v. Lancaster, 36 Md. 196, it was held that parol evidence was inadmissible to show that where the word "degrees was used in the description of the premises of a deed, "perches" was intended, and the deed was allowed to fail for want of certainty. In Dugan v. Anderson, 36 Md. 567, the plaintiff entered the defendant's employ, under a contract to serve as a clerk for a certain time, and then to be received as a partner. Before that time arrived, defendant discharged him and refused to receive him as a partner. Plaintiff immediately brought action for breach of contract, and it was held not prematurely brought. Peterson v. Sentman, 37 Md. 140, was an action of slander brought by a woman, for that the defendant charged her with being a bad woman, and keeping a bad house, meaning thereby, that she was not a chaste woman, was a whore, and kept a common bawdy house. The declaration was held bad for want of a sufficient colloquium to justify the innuendo. The plaintiff's sensitiveness was almost as great as that of Dame Quickly, when Falstaff called her a "thing to thank God on." In Brigham v. Claflin, 31 Wis. 607, it was held, that an action by an assignee in bankruptcy, under section 35 of the bankrupt law, to recover the value of goods transferred by the bankrupt to defendant in fraud of the provisions of the act, will not be entertained by the State courts. This conflicts with two very recent decisions in our Court of Appeals. In Conkey v. Milwaukee & St. Paul Railway Co., 31 Wis. 619, the plaintiff was the consignee of goods delivered to the defendants, common carriers, to be by them transported to the end of their line and there delivered to a connecting line for transportation to their destination. The defendants transported the goods to the end of their line, and placed them in that portion of their warehouse appropriated to goods intended for the connecting line, and from which the latter was in the habit of taking goods without any notice or request. Before the removal of the goods by the connecting line they were destroyed by fire. Held, that the defendants' liability as common carriers continued until the goods were actually taken into possession by the connecting line. This overrules the former doctrine of Wisconsin on this point, and accords with that of this State. In Wyckoff v. Queens County Ferry Co., 52 N. Y. 32, it is held, that ferrymen are not insurers of property retained by the passenger in his own possession and control; in this point disagreeing with most of the western cases. But it is also held that ferrymen are liable for negligence under the ordinary rule. So where the guard chain at the end of the boat was left down, and a horse and carriage were lost in consequence, the defendant was held liable. In McAndrew v. Whitlock, 52 N. Y. 40, it was held, that a common carrier of goods by water, being intrusted with goods of a perishable nature and liable to damage by rain, and being informed of the fact, may not put them ashore in rainy weather and without ample notice to the consignee so that he may secure them. In Menagh v. Whitwell, 52 N. Y. 146, mortgages executed severally by partners to secure individual debts, were held subordinate to claims of creditors of the partnership, without regard to the solvency of the firm at the time. แ In St. Luke's Home for Indigent Christian Females v. An Association for the Relief of Respectable Aged Indigent Females in the city of New York, 52 N. Y. 191, the defendants were held entitled to a bequest to the Society for the Relief of Aged Indigent Females," their name corresponding more nearly to the description in the will than that of the plaintiff, and the extraneous evidence not clearly showing that the testator intended the plaintiff. In First National Bank of Jersey City v. Leach, 52 N. Y. 350, certification of a check by a bank was held to operate between holder and drawer as payment, and to discharge the drawer. In Day v. Pool, 52 N. Y. 416, it was held, that upon an executory contract of sale, with warranty of quality, the purchaser is not bound to return, or offer to return, the article on discovering its inferior quality, but may retain and use it, and rely upon the warranty. This, however, applies only to latent defects. Warren v. New York Central Railroad Co., 52 N. Y. 437, decides that a jury, after having handed in a sealed verdict and separated, but before assenting to the verdict in open court or being polled, may alter the verdict. In Flanagan v. People, 52 N. Y. 467, it is held that the test of responsibility for criminal acts, when unsoundness of mind is set up in defense, is the capacity of the defendant to distinguish between right and wrong, at the time of and in respect to the act in |