must have been for the defendants on the evidence in-
troduced." The cases above referred to which bear
upon the question of license sustain the proposition
that a naked licensee who has not reduced the prop-
erty to possession has not such a right in the property
as enables him to maintain trover, but we think the
present case is clearly distinguishable from those re-
ferred to. It further appeared in the present case that
the plaintiff was actually given possession for the pur-
poses of mining. It was by the terms of its lease
granted the exclusive right to mine during the period
of twelve years, and furthermore was required by the
terms of its contract to mine not less than seven thou-
sand tons per year, and to pay for so much, whether
mined or not, and also was required to mine so much
more as could be reasonably mined on such land. In
such a case it is a contradiction of terms to say that
one who has a right to mine ore, and who is bound to
take out a given amount of ore in a stated time, and
who is likewise bound to pay for it, whether mined or
not, and who is entitled to possession for that purpose,
and who has taken possession for that purpose, has no
property in the ore which is actually mined by a wrong-
doer. If it be held that it is not, it must be because it
has no interest in the ore that lies on the ground. But
it has an interest; it has obligated itself that this ore,
to the extent at least of seven thousand tons per year,
and so much more as can be reasonably mined, shall
be taken out of the ground, and that it shall pay to the
licensor a royalty upon that amount of ore, whether
mined or not, and if not mined, it has an interest to
the extent of the royalty in the unmined ore, and re-
ceives credit for that the following year. This right
to mine during the twelve years is irrevocable, and no
ore could be taken out without damaging the plaintiff
to the extent of the difference between the value of
the ore and the cost of production. The language of
the lease does not leave it doubtful whether the right
is exclusive of the lessor. The rights reserved to the
lessor are only such as shall not interfere with the pos-
session of the lands by the plaintiff. Neither the lessor
nor a wrong-doer had the right to enter upon the lands
for the purpose of mining. We think the circuit judge
was right in holding that under these circumstances
the plaintiff had such title to this ore as entitled it to
maintain this action. Mich. Sup. Ct., Oct. 4, 1892.
Hartford Iron Mining Co. v. Cambria Mining Co.
Opinion by Moutgomery, J.

Nominations for membership.

Papers on the judiciary article of the Constitution,
by members of the commission of 1890:
General consideration of the subject, George F. Dan-

forth.

The Court of Appeals, James C. Carter, F. R. Cou-

dert.

The Supreme Court, Leslie W. Russell, Francis R.
Gilbert, William B. Hornblower.

Miscellaneous provisions of the sixth article, W.
Bourke Cockran, Francis H. Woods.

Superior City Courts, Frankiin Bartlett, George G.

Reynolds.

Surrogates' and County Courts, Albert Tennant.

Statutory revision in New York, C. A. Collin.

Secretary's report.

Treasurer's report.

Executive committee's report.

Report of other committees.

The association will entertain the members at lunch-
eon at the Albany Club at 1 P. M.

AFTERNOON SESSION.

Report of committee on nominations and election of

officers.

Report of committee on law reform.

Discussion-"What method can be adopted to pro-

cure the abolition of engrossed bills, the prompt dis-
tribution of printed slips, and the early publication of
bound volumes of the Session Laws.

Discussion (a) “Is a uniform standard for the ad-

mission of attorneys throughout the State and a uni-

form system of examination desirable, and if so, how

can it be obtained?" (b) "Should the requirement

that a student study one year in a law office be abol-

ished?"

Discussion-"How can the present unsatisfactory

methods of duplicating reports of decisions of the

courts be remedied?"

Discussion "How should the Constitutional Con-

vention be constituted as to its membership, and
should the election therefor be postponed?"
Miscellaneous business.

WEDNESDAY EVENING.

In the evening a reception will be tendered to the
members of the association by Governor Roswell P.
Flower, at the executive mansion, at 8 o'clock.

The Albany Law Journal.

PROSEB

ALBANY, JANUARY 14, 1893.

CURRENT TOPICS.

ROF. FRANCIS WAYLAND, of Yale Law School, read before the National Prison Association, at Baltimore, last month, a report of the

committee on criminal law reform, on the causes of the increase of crime in the United States. First

among these he puts unrestricted immigration, especially from Poland, Russia, Austria and Hungary, embracing the "dregs of European society, the scum of European cities, the ignorant, the nihilist, the anarchist." "In a word," he says, "we have strained out the Chinese gnat at the Golden Gate, and swallowed the European camel at the Narrows." A second cause he finds in the saloon, of which he says: "The State seems in a fair way to realize the dreams of the professional politician-government of the Saloon, by the Saloon, for the Saloon." A third cause he finds in the lack of proper hometraining. On this he gives several interesting pages of examples of child depravity. Of the possible cure he says:

"Take them in hand before they have any other taint than the inevitable taint of heredity. It is, of course, an outrage that the State stands idly by and permits the inter-marriage of paupers, vagabonds, prostitutes and felons, thus becoming a party to the wholesale manufacture of probable criminals. But it seems hardly rational to contend, in this stage of nineteenth-century civilization, that the State has no right or power to prevent the probable from becoming the positive criminal, that it is compelled to wait with folded and helpless hands, until the child whom it might have saved is brought within the reach of existing laws by some overt act of wickedness. Such a theory of the limitations of the State is monstrous. If the bugbear of a paternal government terrifies us into such a lame conclusion as this, our condition is indeed hopeless. The peril sternly confronts us. The remedy is in our own hands. It is simply, as we endeavored to point out a year ago, to take such children as we have described from the custody and contamination of their parents or keepers, and after caring for them during their helpless infancy, transfer them to the fostering care and humanizing atmosphere of real homes and to the influence and associations of Christian civilization."

It seems to be taken for granted that the editor of this journal is a musical person. There is a good deal of "music" in him, although it is mainly of an unutterable kind. Like Byron, he has generally sheathed his voice, like a sword." But about once a year some music publisher sends him a piece of music for approbation. This time it is Will L. Thompson, of East Liverpool, Ohio, who confers "The Indian Summer Time," song and chorus, words and music by himself, and equally excellent. (Mind, we do not say that they are excellent.) The chorus is after the conventional order, where the parts come in, one after the order, fugitively, the last lines marked pianissimo. The gifted author, composer VOL. 47 No. 2.

and publisher prints "Indian" with a small i, probably because the season is so short. But Aaron Burr did the same. The price is forty cents, but "send the author half-price, and you will receive a copy." Mr. Thompson has wisely copyrighted his inspiration. This is all we can conscientiously say on this subject, and it is much longer than the "notice" inclosed to us with the song, with the request that we "kindly insert the following local," in which it is alleged that this is "the latest and prettiest song now being sung on the stage." This may be true, but we do not know it, and we are obliged to be extremely guarded in our recommendations of songs (with chorus) to lawyers, judges and law-book writers, who are very particular about their songand-dance music.

There need be no regrets wasted over the defeat of the recent attempt to vest the decision of legislative election contests in the courts of this State. During the canvass the practice in England was cited as a reason for changing the method here, but it seems that the English method is not universally popular there. The following criticism on it is from the London Law Times:

"Few people have any idea of the enormous cost attending the present system of trying election petitions. Take the Walsall petition as an example. Two judges and seven counsel were engaged, and we are informed that the proceedings could not have cost less than half a guinea a minute during the six hours of each day on which the judges sat. But more serious than the cost is the evil of local trial, which has been conspicuous in the proceedings now concluded at Manchester and Walsall. When petitions were tried before parliamentary election committees parties thought many times before going to the expense of bringing witnesses to London. The evidence was carefully sifted and the witnesses judiciously selected. Now trials taking place on the spot, particulars are loose, and witnesses are swept up by the score at the last moment. This results in a waste of time and a large increase of expenditure. There is, we believe, a strong the old system would be a desirable relief to the judges, opinion prevailing in high quarters that a return to and satisfactory if parliamentary committees were composed of four members, with a legal assessor. But if the present system is retained, it is generally agreed that the election court is not strengthened by having two judges. Of course the prospect of any reform of matters connected with the purposes to which judicial services are now applied is too remote for serious consideration, but it was an evil day for the administration of the law when judges were taken away from the courts to discharge all sorts of duties, often very far away from their proper sphere."

A very handsome volume of twelve hundred pages is the "Catalogue of the Library of the Association of the Bar of the City of New York," prepared by Mr. William J. C. Berry, the librarian. It seems in all respects well executed. The titles are arranged, first, under the authors' names, and second, by subjects. The books number about forty thousand.

Mr. Griswold, the librarian of the law library of this State, deserves the earnest thanks of a few people for having made a card or slip index of the

records of the Court of Appeals. It is much superior to the old index in several manuscript volumes, and will greatly facilitate reference to these important bulky volumes, which now number above thirteen hundred.

The Canada Law Journal tells of a clergyman of one of the churches in Toronto who recently fired off the following in a sermon: "A lady has tried about a dozen town lawyers to take up a case for her involving some $100,000, but had been unable to find an honest man among them to whom she could trust her affairs. She brought her papers to me and asked me to find an honest lawyer. I took them and am trying to find one." It is further reported that the clergyman relied for his doubt on lawyers themselves, for he "understood from numbers of them that you cannot be a lawyer and an honest man," and he exhorted the lawyers: "If you cannot be honest and succeed in your profession, get out of it!" It is highly probable that no lawyer ever made such a declaration, but that the clergyman jumped at his conclusion. What would this person think if the Canada Law Journal or this journal should intimate a doubt of the possibility of finding an honest clergyman? And yet it is probably more difficult to be an honest clergyman than an honest lawyer, because independent thinking in the pulpit is very apt to bring the thinker into unpleasant relations with his parish or his church authorities. Our strictures in this case are all reserved for the clergyman rather than the silly woman who could not find an honest and trustworthy lawyer. sort of foolishness is very common among ignorant women, who would much rather be gulled by a clergyman than pay a cent to a lawyer. What the clergy and clerical councils think of honesty in the pulpit and in the theological seminary is apparent from the present persecution of Prof. Briggs by a crowd of pin-headed inquisitors who cannot comprehend the idea of religion dissociated from an outlawed and barbarous creed. There is just one moment when we think of Bob Ingersoll with toleration, and that is when we read such an attack by some pulpit bigot on the whole number of a great and noble profession whom he has not intellect enough to comprehend nor charity enough to embrace. It was of such expounders of the church law that Christ exclaimed: "Woe unto you." Of this particular specimen we heartily join in the Journal's recommendation: "If you cannot fill your church without slandering your neighbors, or without turning a house of God into a sort of dime theater, get out of it!"

This

We have looked over, with a good deal of interest, a pamphlet entitled "Lectures on Law for Women, delivered at the University of the City of New York, by Isaac Franklin Russell, D. C. L., Chair endowed by the Women's Legal Education Society." The writer of these lines had a special curiosity in this matter because he had recently been law-lecturing to a class composed of one hundred and ninety-seven

men and two women. These lectures are entitled: "Popular Fallacies regarding Law and Lawyers; "The Nature of Law in General;” “The Public Law of Nations; ""International Law in Time of Peace;" "International Law in Time of War;" "Equality before the Law;" "Leading Doctrines of Civil Polity;" "The Politico-Economical Force in Constitutional Development; 99 "Studies in Constitutional and Political History;" "The Right of Suffrage; " "the Status of the Indians; ""The Federal Judiciary; ""Constitutional Amendments." These are high themes, but they are treated in a simple manner. We infer that this publication does not comprise all that the lecturer delivers, for we assume that he instructs his young women (of course they are all ever young) how amendments are made to the constitutions, and that they must not expect (perhaps they don't want) any amelioration of the laws of divorce through the intervention of Congress. In addition to this course, Mr. Russell delivers lectures to the women on the laws of persons, of contracts, and of real estate. So far as we know this is the only separate course of law lectures delivered to women in this country.

This car

The world still moves even in those frozen regions lying to the north of the Great Lakes. At a meeting of the benchers of the Law Society of Upper Canada (our conservative friends have not yet changed the old-fashioned name), held recently at Osgoode hall, Sir Oliver Mowat's motion providing for the admission of women to the society, with a view to granting them certificates of fitness which will enable them to practice as solicitors, was adopted by a vote of thirteen to twelve. ries out the spirit of the act passed at the last session of the Ontario Legislative Assembly, though the power it gives is only permissive. At a previous meeting the benchers refused to grant the necessary privileges to enable women to become lawyers. Sir Oliver however took the matter in hand, and now the sinuous path through which a candidate has to travel in order to become qualified as a legal practitioner has been opened to women as well as to men. Strange to say Sir Oliver is the old Tory (though he calls himself a Liberal) who a short time since dismissed a subordinate because he uttered some annexation sentiments.

Hon. Alton B. Parker, who delivers an address upon "A Phase of Law Reform," is one of the youngest members of the bench of the State, although the senior justice in point of service in the third judicial district, having been appointed in 1885 on the death of the late T. R. Westbrook. Justice Parker is also a graduate of the Albany Law School, and almost immediately after his admission to practice was elected surrogate of Ulster county, where he was serving his second term at the time of his appointment to the Supreme Court. Justice Parker was a member of the second division of the Court of Appeals during the entire period of its existence, a term of nearly four years, and made a

Nor may adjoining proprietors erect wharves, bridges or dams across navigable rivers so as to obstruct their navigation.' This statement of the law is quoted in the opinion in East Haven v. Hemingway, 7 Conn. 186, with the suggestion that the court do not understand by it that the adjoining proprietors are seised of the soil covered by water, but that they have a right of occupation, properly termed a franchise.' The controversy between the parties regarded the title to the soil, with the wharf and store standing thereon, between high and low-water mark on the east side of Dragon river, which is an arm of the sea where the tide ebbs and flows, and was navigable adjoining the premises for large vessels. That case decided that the proprietor of land adjoining a navigable river has an exclusive right to the soil between high and low-water mark, for the purpose of erecting wharves and stores thereon. We do not recall any case in this State in which the precise point made in this case was in issue. There are however expressions in the opinions in several cases which indicate the general views of at least the judges writing the respective opinions. Thus in Simons v. French, 25 Conn. 346, Judge Storrs says: 'In Connecticut it is now settled * * * that the owner of the upland adjoining such [adjacent] flats becomes entitled, by virtue of his ownership of the upland, to the exclusive right of wharfage out over them in front of said upland to the channel of an arm of the sea adjoining such flats.' In Mather v. Chapman, 40 Conn. 382, the court says: 'It is conceded that by the settled law of Connecticut the title of a riparian proprietor terminates at ordinary high-water mark. It is also conceded that though his title in fee thus terminate, yet he has certain privileges in the adjoining waters. Among the most important of these privileges are (1) that of access to the deep sea; (2) the right to extend his land into the water by means of wharves, subject to the qualification that he thereby does no injury to the free navigation of the water by the public.' In State v. Sargent, 45 Conn. 358, the right of owners of land bounded on a harbor, to embark therefrom and go upon the sea,' is recognized. And in Steamboat Co. v. Sargent, 50 Conn. 199, the right of a party, owner of the upland, to extend his wharf, if he desires, to the channel of the harbor, in that case some nine hundred feet below low-water mark, is expressly stated, and the words 'deep water' and channel' are used as synonymous. Aside from these references, the reason ordinarily stated for giving to riparian proprietors the right of wharfage, to-wit, to facilitate commerce and the loading and unloading of ships, together with the common sense of the matter, clearly indicates that the right should not be restricted as claimed by the plaintiff, unless there are positive decisions to that effect or imperative reasons for so doing. If in view of the opinions already quoted, the question is to be regarded as an

6

open one in this State, we see no good reason why it should not be decided in accordance with the convenience of riparian proprietors, and for the encouragement of commerce, so long as there is no counter-balancing injury involved to others. Except in cases where navigability begins at low-water mark, the right to wharf out to low-water mark only would be no privilege to adjoining proprietors nor benefit to commerce. It is significant that the word 'wharf,' as ordinarily defined, implies a structure in aid of navigation and to which vessels have access. This is well stated in Langdon v. Mayor, etc., 93 N. Y. 151, thus: 'A wharf is a structure on the margin of navigable waters, alongside of which vessels can be brought for the sake of being conveniently loaded or unloaded. * Hence water of sufficient depth to float vessels is an essential part of every wharf, a necessary incident thereof or appurtenance thereto, without which there can be no wharf and no wharfage. Indeed a wharf cannot be defined or conceived except in connection with adjacent navigable water.' It seems to us therefore that a proprietor of land adjoining Stamford harbor, and waters of a like character in this State, has a right to connect himself with navigable water by means of wharves or channels extending from and adjacent to his uplands, so long as he does nothing to interfere with the free navigation of the waters."

*

*

In Hope v. Barker, Supreme Court of Missouri, November 28, 1892, it was held that the words, "without interest thereon if paid at maturity; if not paid at maturity, to bear 10 per cent interest from date "-in a promissory note negotiable] by its terms, do not render the amount to be paid uncertain, so as to deprive the note of its negotiable character. The court said: "It is everywhere agreed that one of the rules in regard to negotiable paper is that the amount to be paid must be certain, and not made to depend on a contingency. There is however some difference of opinion in the application of the rule. In Bank v. Gay, 63 Mo. 33, the note, besides a promise to pay a certain sum at a specified date, with interest from maturity at a given rate, contained these words: And if not paid at maturity, and the same is placed in the hands of an attorney for collection, we agree and promise to pay an additional sum of ten per cent as attorneys' fees.' This promise to pay an attorney's fee was held to destroy the negotiable character of the note, because the payment of a part was uncertain, and made to depend upon a contingency. That ruling has been followed in subsequent cases, and is now the settled law of this State, whatever may be the rule in such cases elsewhere. Samstag v. Conley, 64 Mo. 476; Bank v. Marlow, 71 id. 618; Bank v. Jacobs, 73 id. 35. To load down negotiable paper with such contingent collateral contracts can have no other effect than to destroy the simplicity of such paper, and we do not depart in the least from the rule declared in these cases. The rule as to the degree of cer