tion to law literature. It far surpasses any other work on the subject in the scope of the reasoning and research which it displays.

Terms of Court. An Essay. By David McAdam. New York: Diossy & Co., 1874.

This essay treats a unique subject in an interesting manner. It sets forth the "Ancient Origin of Terms;" "Terms of Courts in New York," etc., and examines the question "Are Terms Directory or Limitations of Power?" It also shows how the objection to terms is available. From the chapter on the "Ancient Origin of Terms," it appears that "the division of the year into term and vacation has been the joint work of the church and necessity." The business affairs of men required a certain amount of leisure from attendance on judicial affairs, and the church required certain days for attendance on religious ceremonies. From the chapter relating to objections that judgment was rendered out of term, it appears that the objection to be available should be made at the trial or on the argument of the motion. This pamphlet reminds us of the Latin phrase "multum in parvo."

The Bankrupt Act. With Amendments and Index and Notes. Second Edition. By Seymour D. Thompson and Nathan Frank. St. Louis: Soule, Thomas & Wentworth, 1874.

The object of this pamphlet, we are told by the editors, is to "consolidate the Bankrupt Act of 1867, with its amendments * * * so as to exhibit the entire law as it now stands and as it is intended to read." The annotations are confined to the adjudications since the amendatory act of 1874. The work is well done; and is thoroughly reliable. So far as we have examined, the adjudications intended to be incorporated have been correctly and succinctly stated. The index is unusually full. For convenience and accuracy this pamphlet can be thoroughly recommended to the profession.

Blatchford's Circuit Court Reports. Vol. XI. New York: Baker, Voorhis & Co., 1874.

This series of reports has obtained high rank. The present volume contains cases argued and determined in the Second Circuit of the United States, bringing the reports down to April, 1874. Judge Blatchford has ample opportunities for making the best sort of a selection of cases for publication. Among the important cases in this volume is that of the United States v. Susan B. Anthony, p. 200, relative to the right of a female to vote, in which it was held that the constitution and laws of New York restricting the right of suffrage to males was not in violation of the 14th Amendment of the United States Constitution. other important case is Silliman v. Troy & West Troy Bridge Co., p. 274, holding that a bridge with a draw making two openings, each 111 feet, and with an elevation of thirty-two feet above ordinary tide water, and with piers that would not create shoals or bars, would not materially obstruct navigation. The opinion was delivered by Judge Hunt, and contains an elaborate consideration of the cases on obstruction of navigation. The volume is fully equal to the preceding volumes, both in style and subject-matter.

An

In a parliamentary blue book just issued, a table appears, "showing the statistics of some of the work of the Court of Chancery" for the ten years 1863-72. In the last year, 14,710 decrees and orders were drawn up by the registrars.

CORRESPONDENCE.

JUDGE RAPALLO'S OPINION IN THE BEECHER-TILTON CASE.

Editor Albany Law Journal:

SIR- Are the remarks of Justice Rapallo in his published opinion in this case, upon the latter part of section 160 of the Code of Procedure, correct? That part of the section reads as follows, viz.: " And when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain, by amendment."

The word "nature" is from "natus," which is produced from "nascor," to be born, to arrive. A copy of the edition of Noah Webster's Dictionary, published in 1862, and on my table, gives the word "nature," among other, these significations:

"1. In a general sense, whatever is made or produced."

"3. The essence, essential qualities, or attributes of a thing."

"10. Sort, species, kind, particular character." "12. Birth."

This able jurist takes one of the senses in which the word "nature" is used, holds that "this section enables a party to obtain a definite statement in the pleading of the nature of the charge intended to be made against him, but not of the particulars or circumstances of time or place."

If the justice had taken the word in its more radical definition and use, it seems to me he would have been led to the conclusion that the language in the section, viz. "the precise nature of the charge or defense," goes as well to the origin, the foundation of "the charge or defense," as to the kind of such charge or defense, and by necessary implication called for the time when, and the place where, of the adulteries alleged.

As to Justice Rapallo's construction of the word "claim," in section 158 of the Code, it admits of "a reasonable doubt," of which in law he has the benefit. A sues B for breach of his marriage promise. B sets up in his answer that A, since the betrothment, had carnal knowledge of divers male persons, without specifying time, place or person. A, very properly, under the jurist's construction of the word " claim" in section 158, asks of B specifications of the alleged misconduct as to time, place and person. If the answer on the part of B is a claim within the meaning of section 158, it must in the supposed case constitute a counterclaim in the meaning of sections 149, 150, 153 of the Code. Why cannot B, the defendant, have judgment for damages thereon against her, the plaintiff, in his favor? EGBERT WHITAKER.

SAUGERTIES, December 9, 1874.

LIEN OF SHIPBUILDERS. Editor Albany Law Jonrnal:

DEAR SIR-The syllabus furnished you in the case of Nelson Edwards and others against George W. Elliott and others, printed in your number of December 5, among the abstracts of United States Supreme Court decisions, does not correctly state the decision. I have the opinion before me. The parties who filed the lien in that case were the contractors who built the ship. The court held that this was not a maritime contract, and that consequently the States could create

a lien under it and give a remedy in rem to enforce the lien. This was decided by the Court of Appeals in Sheppard v. Steele, 43 N. Y. 52.

In the case just referred to Judge Clifford says: "Common-law remedies are not applicable to enforce a maritime lien by a proceeding in rem, and consequently the original jurisdiction to enforce such a lien by that mode of proceeding is exclusive in the District Courts. Brookman v. Hamill, 43 N. Y. 554; The Josephine, 39 id. 19."

Yours respectfully,

EVERETT P. WHEELER.

NEW YORK, December 11, 1874.

PORT HURON, Michigan, December 8, 1874. Editor Albany Law Journal:

I have read with much pleasure your article in issue of December 5, entitled "Action by parent for seduction of minor daughter." It seems to me all the difficulties suggested and that have proved the source of much discussion as well as disagreement in the learned courts of England and the United States, are most readily set aside and avoided by a simple enactment. Such is now the law of Michigan. Comp. Laws of 1871, p. 1760 (§ 6175). "It shall not be necessary in any action on the case for seduction, hereafter to be brought, to allege in the declaration or to prove on the trial any loss of service in consequence of such seduction; but if the female seduced be a minor at the time of the seduction, the action may be brought by her father, mother or guardian; and if such female be of full age, the action may be brought by her father or any other relation who shall be authorized by her to bring the same."

With slight changes this seems to me to put such cases in their true and most equitable position.

I never could quite see the reason why loss of service should be the sole ground of action and at the same time permit a jury to give exemplary or punitive damages. The seduction and injury to good name, though resulting in no actual loss, should and is here a sufficient and ample cause of action.

Respectfully,

W. T. MITCHELL.

COURT OF APPEALS DECISIONS. The New York Court of Appeals, on Tuesday, December 15, 1874, announced the following decisions: Judgments affirmed with costs-Supervisors of Richmond County v. Wandel, Sanders v. Gillespie, Wiles v. Bogert, Hofheimer v. Campbell, Blanchard v. New Jersey Steamboat Company.. -Judgments reversed and new trial granted, costs to abide the event -Holtz v. Schmidt, Shelton v. Merchants' Dispatch Transportation Co., Barnes v. Quigley, Marsh v. City of Brooklyn, Boyd v. Schlesinger, Ackart v. Lansing. -Judgment modified by deducting the amount added as a premium upon coin and making the judgment for the amount adjudged due to the plaintiff payable in coin, with costs payable in currency, and as modified affirmed with costs-Wild v. The New York and Austin Silver Mining Co.- Order of General Term reversed and judgment of Special Term affirmed, with costs-Jackson v. Andrews.- Order affirmed and judgment absolute for defendant on stipulation, with costs Decker v. Satterman. Order of General Term reversed and judgment on verdict affirmed, with costs-Purcell v. Jaycox. Order of General

Term reversed and that of Special Term affirmed, so far only as it denies the motion, with costs-In the matter of the Petition of Freeholders of Allegany and Carrolton. Order affirmed, with costs - Palmer v. Hussey. - Appeal dismissed, with costs-Brady v. Brundage, Fry v. Fry. - Motion to recall remittitur and amend the same to agree with judgment handed down, granted without costs-Jacobs v. Morange. Motion to dismiss appeal, granted with $10 costs of motion-Genet v. Davenport, Parisen v. Parisen. — Motion to dismiss appeal granted, with $10 costs in one motion only - Mitchell v. Wheeler, Bank of Chenango v. Wheeler, Hall v. Wheeler, Maydole v. Wheeler, Goodrich v. Wheeler, Miller v. Wheeler, First National Bank of Oxford v. Wheeler, First National Bank of New Berlin v. Wheeler.

NOTES.

The General Term of the New York Superior Court decides, in Gardner v. Bennett, that contractors to build are not agents and servants of the owner in such sense as to make him liable for personal injuries to a passer-by, from their negligence.

Also, in Murray v. Metropolitan Gas Co., that a gas company has no right to shut off gas for arrears by former occupants, but that damages to a boardinghouse keeper by loss of boarders in consequence are

too remote.

Justice Donohue holds, at Chambers, that the question of Max Strakosch's right to give Sunday evening concerts of sacred operatic music, is not so free from doubt as to justify retaining the injunction, and leaves it to be decided upon the trial.

It appears that the question of introducing some Indian judges into the Supreme Council has again been mooted before the Indian government. It was Mr. Fitzjames Stephen, we believe, who proposed that judges should help the legislature more than they do now; and perhaps the need of such help may by this time have forced itself upon the mind of the present viceroy.

Judge Blatchford decides (In re Arowson, bankruptcy) that an order of arrest from a State court, pending the proceedings, will be vacated, where the ground of arrest is fraudulent disposition by the bankrupt of his property; but not where the ground is fraud in contracting the debt; also, that the complaint need not disclose the grounds of arrest, it being sufficient if they appear by the affidavits on which the order was issued. In re Leland & Co.: That a sheriff is entitled to his fees for levy and services under executions issued before filing petition, but not under those issued afterward.

The Law Times says: A large amount of work seems to be got out of the great seal. The "porter to the great seal" informs the legal departments commissioners that the quantity of wax used is about 4 cwt. per month. The porter says he has charge of the great seal during the day, and delivers it up to the lord chancellor the last thing at night. The porter is in attendance for nine hours a day, and longer at times in the parliamentary session, as he has to remain at the house of lords until that house is up, and then go to the lord chancellor's house after him with the great seal. The porter adds that he never had more than a week's holiday in a year.

All communications intended for publication in the Law 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 addressed to the publishers.

The Albany Law Journal.

ALBANY, DECEMBER 26, 1874.

city, crossed the street near plaintiff's factory. That by direction of the common council, a culvert was constructed to carry off all the water of the stream. That it was built by a non-professional engineer, and should have been one-third larger. That a flood occurred from rain and the melting of snow on the land drained, which produced an amount of water that the culvert was unable to pass, and the water set back on and injured plaintiff's premises. That the culvert was abundantly large for the natural stream, but was insufficient to carry off the water, when a

SPECTING SEWERS.

Actions by private parties against municipal corporations, for injuries to property caused by defects in public works, are becoming more frequent every year. Under what circumstances, and to what extent, corporations are liable for such damages, are questions of very great importance, and call for the application of definite principles of law. At present, we will confine ourselves to an examination of the law regulating actions brought to recover compensation for losses sustained by defects in sewers, built under the direction of municipal corporations.

It is well settled that a municipal corporation is not responsible, in a private action, for not providing sewerage for every or for any part of the city or village. The duty of providing sewers is one requiring the exercise of deliberation, judgment and discretion, and is judicial in its nature. For misconduct or delinquency in the performance of judicial duties no action lies. But where a duty purely ministerial is violated or negligently performed, by a public body or officer, an injured party may have redress by action. The ordinance of a city corporation, directing the construction of a public improvement within the general scope of its powers, is a judicial act; but the prosecution of the work is ministerial in its character, and the corporation must see that it is done in a safe and skillful manner. The powers and duties of the common council in regard to the opening of sewers, etc., are discretionary; no liability arises for injuries caused by the making of an improvement, but for misconduct and unskillfulness in effecting the improvement, and for not keeping it in proper condition after it has been made, an action will lie.

Mills v. City of Brooklyn, 32 N. Y. 489; Wilson v. Mayor, etc., of New York, 1 Denio, 595.- Having pointed out this distinction which is observed in the decisions, we will cite some of the cases which bear upon this subject.

An early and important case is Rochester White Lead Co. v. The City of Rochester, 3 N. Y. 463.

This was an action to recover damages for injuries caused to plaintiff's factory, by negligence in the construction of a culvert. The referee reported, that a natural stream, which was the outlet for the surface waters of four hundred acres of land, and having its source eighty rods west of State street, in the above

state of facts the court held that the city was liable. They say: "A municipal corporation in the construction of its sewers, drains, etc., is bound to exercise that care and prudence which a discreet and cautious individual would use, if the whole loss or risk were to be his own." "The corporation having undertaken to build sewers in pursuance of the power conferred by charter, they were bound to exercise such skill in the construction, and to give such sufficiency of capacity to the drain, as that it should not become a nuisance to the property of those persons who resided in the neighborhood. Or in other words, having elected to act, under the power granted by charter, they must be held responsible for a complete and perfect execution. It is the duty of a municipal corporation to build a sewer so that it shall not become a nuisance to the neighborhood, as much as it is to avoid the same result, by keeping it in repair after it has been built."

Mayor, etc., of New York v. Furze, 3 Hill, 612. Error to the New York Common Pleas. Furze brought action alleging his occupancy of a building on Pearl street; that there were sewers and culverts in said street, designed to carry off the water, which the defendants allowed to become filled up and obstructed, by reason of which his premises were overflowed. The court below charged the jury that the defendants were bound to put and keep in repair the sewers, etc., and to see that they remained unobstructed so as to carry off the rain or water from the streets. The plaintiff had judgment, which was affirmed. Barton v. City of Syracuse, 36 N. Y. 54.- This was an action on the case for negligence, in which defendant was charged with culpability, in omitting to keep a sewer in proper repair, and in suffering it to become filled with dirt and rubbish by reason of which the flow of the water was impeded, causing it to set back through the drain into plaintiff's cellar to his injury. The court held that "in the construction of sewers and in keeping them in repair, municipal corporations act ministerially, and are bound to exercise needful diligence, prudence and care."

Lewenthal v. The Mayor, etc., of New York, 61 Barb. 511. The plaintiff's house was overflowed by water flowing therein from the street sewer through the sewer connection. The plaintiff alleged that by reason of carelessness and unskillfulness

neglect or delinquency in the performance of which a civil action is not maintainable?

In McCarthy v. City of Syracuse, supra, Rapallo, J., says: "The entire omission to construct a sewer, or the failure to make it of sufficient size, has been held not to create a liability on the part of the city, for the reason that the duty of determining where sewers shall be located, and their dimensions, is, in its nature,

Another question arises in the consideration of this subject, viz. : Must knowledge in, or notice to, the public authorities, of the defects which existed, be shown in order to fix this liability? This is not in all cases necessary. In Barton v. City of Syracuse, supra, Bockes, J., remarks: "It is also insisted that the recovery is erroneous, because there was no proof of notice to the corporation of the needed repair, before the injury complained of occurred. Such notice was not, however, necessary in this case. The injury here resulted from an omission of duty a neglect to do an act which it was incum

bent on the defendant to do."

Mc Carthy v. City of Syracuse, 46 N. Y. 194.- The plaintiff's premises were flooded, and his goods were damaged, in consequence of the inability of a branch sewer to carry off the water which fell during a heavy rain, and which had become obstructed by the falling of a portion of the bricks of which the inlet was constructed, and the accumulation of mud and street filth. The point was raised that the city had no notice that the sewer needed repairing. The court held that mere absence of notice does not necessarily absolve the city from the charge of negligence. Rapallo, J. "Where the obstruction dilapidation is an ordinary result of the use of the sewer which ought to be anticipated, and could be guarded against by occasional examination and cleansing, the omission to make such examination, and to keep the sewer clear, is a neglect of duty which renders the city liable."

or

It is not necessary that the city should have express notice of defects, if ample time has elapsed to render them notorious. Requa v. City of Rochester, 45 N. Y. 129; Walker v. City of Lockport, 43 How. 366.

There is a third question of vast importance, and which arises very frequently. A corporation being the judge as to whether it will build sewers at all or not, is it also the sole judge as to the nature, dimensions, and capacity of the sewers which it has determined to build? Is a resolution of the common council, or the decision of a public officer, determining the size of the sewers which are to be built, a judicial act for

Mills v. City of Brooklyn, 32 N. Y. 489. This language, however, is clearly obiter, for the question before the court was not of construction, but of obstruction.

In the Mills case the plaintiffs' premises were injured by the inability of a sewer to carry off the water which ran toward it. The complaint alleged the erection of certain sewers by the city; "that said sewers are, and always have been, insufficient to conduct, and carry away properly, the water," etc. Denio, Ch. J., says: "The grievance of which the plaintiffs complain is, that sufficient sewerage to carry off the surface water from their lot and house has not been provided. A sewer of a certain capacity was built, but it was insufficient to carry off all the water which came down in a rain storm, and the plaintiffs' premises were, to a certain extent, unprotected. Their condition was certainly no worse than it would have been if no sewer at all had been constructed. So far as the one laid down operated it relieved the plaintiffs' lot, but the relief was not adequate. If the defendants would have been liable if they had done nothing, they are of course liable for the insufficient character of the work which they constructed." The judge clearly shows that no liability attaches for an omission to provide any sewerage, and then he holds that the corporation is the judge of the size of the sewers which it will build, and that they are not responsible if they prove insufficient. He remarks, "that it is a wise provision of the law that an action for damages does not lie for errors of judgment on the part of the agents of the public." This language, however, is used in a case where the error of judgment was not the cause of the injury. The language of Judge Rapallo, in McCarthy v. Syracuse, is cited with approval in the very recent case of Duryea v. Mayor of New York, 4 N. Y. S. C. Rep. 517. It seems, however, to be as much obiter in this case as in the McCarthy case.

So we may safely assume that it has never been directly decided in our courts, that a municipal corporation is not liable for injuries immediately resulting from improper construction or insufficient capacity of sewers, and, as we have seen, the contrary has been adjudged in the Lewenthal case, and recognized, although perhaps obiter, in the Barton case.

It would, indeed, seem harsh to hold a corporation liable for errors of judgment in its officers. But take a case where a gully has been formed, down which the water, arising from rains and the melting snow,

has run, and the city builds a sewer to carry off such water, which is of insufficient capacity to do so, and the adjoining property is injured: ought the corporation to be relieved from liability, on the ground that its officers acted judicially when they constructed the sewer of such insufficient size? When they build a work of such size that it proves a nuisance to the neighborhood instead of a benefit, ought they to be allowed to escape responsibility for their acts because they erred in their judgment of what was necessary? It is here that the difficulty arises. The distinction in the cases is not drawn very clearly, and the cases seem to conflict. It is supposed that, under the decision in the Mills case, a corporation may build a sewer of any size, and no matter how much damage may be caused to property owners by its insufficiency, or in whatever manner such damage is caused, it is damnum absque injuria, because the authorities acted judicially when they determined the size of the sewer. This view is erroneous. In the Rochester case a recovery was allowed, because the city interfered with the current of a natural stream, and in dealing with it the court held that they were bound to provide a sewer of such capacity as to carry off the same amount of water which formerly ran in the stream.

The language of the court might seem broad enough to authorize the doctrine that a corporation is bound, under all circumstances, to build its sewers large enough to meet every requirement, but this was not the question before the court, and such a doctrine is not supported in any of the later cases. In the Lewenthal case the complaint alleged that the sewer was of insufficient size to carry off the water, and threw it upon adjoining premises, and the court placed its decision on the ground that where the sewer was built under the direction of the common council, and made of insufficient capacity to carry off the water, and the injury which resulted was the direct consequence of such imperfect and insufficient construction, the corporation was liable. The judge distinguished this case from Mills v. City of Brooklyn, remarking: "I do not think that the case applies to the present one. There the difficulty arose, not from the sewer throwing water upon adjoining premises, but from there not being sufficient means provided to drain surrounding lands."

But it is also said: "If it was not a good defense that the public authorities were acting judicially when they erected a sewer of such insufficient capacity, that it caused the water to flow on adjoining premises, why is it a good defense that they were thus acting when they built a sewer which was unable to drain surrounding lands, as in the Mills case." It is here that we wish to show the distinction which we think is the one the courts had in view.

A city or village owes no active duty to its citizens to build sewers, or to build them large enough. If the sewers they provide are unable to drain the lands of the water which rests on them, or to pass all the water

which flows to them, their being built of such insufficient capacity is simply an error of judgment on the part of the public authorities. The citizens and the property in the neighborhood are certainly in no worse condition than if no sewer at all had been built, and the former cannot complain that the one erected relieves them but partially instead of wholly. But where property has been almost wholly free from surface water, and the water from rains and melting of snows passes away from it naturally, and easily, and the corporation undertakes to gather it into a sewer of insufficient capacity to admit it all, and in consequence thereof it flows over, on, and injures the adjoining premises, which had never before been thus affected, the corporation cannot shield itself from responsibility on the principle that the act determining the size of such sewer was a judicial one, and its insufficiency was a mere error of judgment.

In the former case it attempted a work which it was not bound to do, and which although the work only partially subserved the object in view, yet caused no greater injury than formerly existed; while in the latter it was the direct cause of a damage not before experienced, and created a nuisance where none before existed.

METROPOLITAN LAWS.

The complexity of the life and institutions of people who reside in a great city necessitate a corresponding complexity of laws. A city like London, Paris, Berlin or New York is more difficult to govern than an ordinary State or kingdom. The great commercial, industrial, manufacturing and financial interests which are to be taken care of; the vast masses of people of all classes, conditions and nationalities, which are to be controlled; the extent and variety of the enterprises and businesses which are to be regulated, all render metropolitan government a momentous and complicated affair. The ordinary rules of law become utterly inadequate to provide for a community so populous, an organization so artificial. Hence, the legislative power is often appealed to in this country for that protection and power which the common law fails to furnish. Metropolitan government is a striking instance of the necessity of specialized administration of law. Thus, for the city and county of New York no less than one hundred special statutes have been passed in a single year by our legislature. There may not be an absolute necessity for such an amount of legislation for our metropolis; but it is certain that if the legislature does not provide for the peculiarities of the institutions and interests of the metropolis, it must be left to the local authorities. We are no advocates of special legislation; in fact we have always opposed it, and earnestly favored the adoption of the new constitution, which does away with much special legislation; but there are certain peculiar needs which a complex organization like a metropolis has, which, if not supplied by the State, will be met by the local gov