THE ALBANY LAW JOURNAL. WATER RIGHTS. 1. Diversion of water on public land confers no right against government.-Where a person diverted and appropriated the waters of a creek on public land from its natural channel; and afterward the land, on which its natural channel was situated, was patented to another. Held, that the former acquired no right against the government; and that the patent carried all the right of the government, which was absolute and unincumbered by any diversion or appropriation, to the patentee. Vansickle v. Haines, 249. 2. Use of water percolating into one's own soil not actionable.-Where plaintiffs appropriated, possessed and used a spring of running water upon land which they occupied; and defendants dug a well upon adjoining land occupied by them; and the spring dried up after the digging of the well, but there was no visible connection between the well and the spring - the flow of water into defendants' land being by percolation. Held, that plaintiffs had no cause of action against defendants for damages or for an injunction. Mosier v. Caldwell, 363. 3. Right of owner of land to dig for water in it. -A person may lawfully dig a well upon his own land, though thereby he destroy the subterranean, undefined sources of his neighbor's spring. Ib. 4. Percolating water a part of the soil,-Water percolating through the soil is not, and cannot be, distinguished from the soil itself; and of such water, the proprietor of the soil has the free and absolute use, so that he does not directly invade that of his neighbor, or, consequently, injure his perceptible and clearly defined rights. Ib. BOOK NOTICE. LIT A Selection of Cases on Sales of Personal Property, with references and citations, by C. C. Langdell, Dane Professor of Law in Harvard University. Prepared for use as a text book in Harvard Law School. Vol. 1. Boston: Little Brown & Company, 1872. When Professor Langdell was appointed to the Dan chair in the Harvard law school, he set about discovering that method of instruction which should accomplish the most practical good for those under his instruction. He came naturally to the conclusion that the inductive system-or the gathering of the general principles from the examination of particular caseswas most likely to accomplish his object. This was to be accomplished by making "a series of cases carefully selected from the books of reports, the subject alike of study and instruction." The chief obstacle to this was the lack of books, as in a large class all would want the same books at the same time. This led to the preparation of his "Select Cases on Contract," and of the work before us. The value of these selections to the student of Harvard law school, or of any other law school, or even to the private student, will be great. He will here have an opportunity not only to see the practical application of the principles contained in the lectures or found in the treatises, but he may also familiarize himself with the logic of the judges and their methods of dealing with facts, an object which every student should always bear in mind. Samuel Warren, in his delightful "Introduction to the Study of the Law," says: "Fifty or sixty leading cases, thoroughly understood and distinctly recol 99 lected, will be found of incalculable value in practice -serving as so many landmarks placed upon the trackless wilds of the law." The retention in the memory of mere abstract principles is always difficult, but let those principles be associated with and applied to facts and circumstances - -as they are in cases-and the memory holds them tenaciously. We, of course, are not admirers of the mere case lawyer, but this system of inductive teaching has no tendency to create such. It is only the loose and desultory mode of study, so prevalent, that produces the man who can never get beyond Ita lex scripta est. Mr. Langdell has done good service to the student of law and we thank him for it. The book, like all from Messrs. Little, Brown & Company, is admirable in its mechanical execution. ENGLISH NOTES. A bill to prevent children from performing as acrobats has been introduced in parliament. The judges' salaries' bill provides that the salary of persons discharging judicial duties in the united kingdom shall mence from the date of his appointment and not from the resignation or death of his predecessor. Abu amending the law relating to courts of summary jurisdiction has been introduced in the house of lords by the lord chancellor. - By a circular in relation to the expenses of county judges, which Chancellor Lowe has issued, a judge is required to live in the principal city and town in his district, and to go on circuit in a particular order without reference to the days of the week already fixed for holding courts, or any other consideration except that of economy.In the house of commons, on the 15th ult., the attorneygeneral, in answer to an inquiry in relation to the prosecution of the Tichborne claimant, said that, although as organ of the government, it had been necessary that he should take certain formal steps in the matter, he had not the conduct of, and he did not interfe with, the prosecution, which was in the hands Mr. Hawkins. It had become a home office prosecution, and, as far as he knew and believed, the home secretary and the solicitor to the treasury did not intend to desist from the prosecution. - A curious case recently came before the judicial committee of the privy council. The zemindar of Vizianagram, the plaintiff, sued the defendant, the zemindar of Bobbili, for insulting him, in not describing him by the title of "honorable" in a law suit in which he was engaged. The plaintiff was a member of the legislative council of Madras, and therefore entitled to be called "honorable." The high court of Madras decided in favor of the defendant, and the plaintiff accordingly appealed. Sir J. Colvile, the president of the committee, remarking on the value of titles in India, reversed the judgment. The attorney-general for Ireland announced in the house of commons on the 23d ult., the purpose of the government to prosecute twenty-four of the Roman Catholic clergyman of Ireland, for alleged participation in the Galway election affair, according to the report of Judge Keogh. Judge Horace P. Biddle, of the Indiana circuit court, has been nominated for congress from the ninth district of that State by the democrats and liberal republicans. LEGAL NEWS. The president has appointed Hon. Hiram Knowles associate justice of the supreme court of Montana. Mr. Orlando F. Bump, compiler of the work on bankruptcy bearing his name, has become an editor of the Maryland Law Reporter. Lerdo de Tejada, chief justice of the supreme court, and until recently secretary of foreign affairs in President Juarez's cabinet, is now acting president of the republic of Mexico. Mr. Mataxos, the minister of justice of Greece, recently stated in the chamber of deputies of that country, that the allegation which some time since appeared in the newspapers that the Greek government had caused the transportation of certain convicts to New Orleans, was a fabrication and a calumny. Chief Judge Church, of the New York court of appeals, has very properly declined the position of Tammany sachem, on the ground that his position as judge forbids his connecting himself with politics. We hope next to hear that he positively declines to accept the nomination for governor. NEW YORK STATUTES AT LARGE. CHAP. 498. AN ACT for the protection of livery stable keepers and other persons keeping horses at livery or pasture. PASSED May 3, 1872. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. It shall be lawful for all livery stable keepers and other persons keeping any horse or horses at livery or pasture or boarding the same, for hire, under any agreement with the owner thereof, to detain such horse or horses until all charges under such agreement for the care, keep, pasture or board of such horses shall have been paid: provided, however, that notice in writing shall first be given to such owner in person, or at his last known place of residence, of the amount of such charges, and the intention to detain such horse or horses until such charges shall be paid. § 2. From the time of giving such notice, and while such horse or horses are so detained, and no longer, such livery stable keeper or other person shall have a lien upon such horse or horses for the purpose of satisfying any execution which may be issued upon a judgment obtained for such charges. § 3. This act shall take effect immediately. CHAP. 426. AN ACT to amend chapter six hundred and fifty-seven of the laws of eighteen hundred and seventy-one, entitled "An act to amend the act passed February seventeen, eighteen hundred and forty-eight, entitled 'An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,' "" passed April twentieth, eighteen hundred and seventy-one. PASSED April 27, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. Section two of chapter six hundred and fifty-seven of the laws of eighteen hundred and seventy one, entitled "An act to amend the act passed February seventeenth, eighteen hundred and forty-eight, entitled 'An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,'" is hereby amended so as to read as follows: § 2. Said section one of the said act, passed February seventeenth, eighteen hundred and forty-eight, as amended by section one of chapter two hundred and sixty-two of the laws of eighteen hundred and fiftyseven, is hereby amended, by inserting after the words or the business of printing and publishing books, pamphlets and newspapers," in the first section of the last-mentioned act, the words "or the business of preserving and dealing in meats, or the business of making butter, cheese, concentrated or condensed milk, or any other products of the dairy; or the business of erecting buildings for church, sheds or laundry purposes, and the carrying on of laundry business. § 2. This act shall take effect immediately. CHAP. 475. AN ACT in relation to challenges of jurors in criminal cases. PASSED May 3, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. The previous formation or expression of an opinion or impression in reference to the circumstances upon which any criminal action of law is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference thereto, shall not be a sufficient ground of challenge for principal cause to any person who is otherwise legally qualified to serve as a juror upon the trial of such action; provided, the person proposed as a juror who may have formed or expressed or has such opinion or impression as aforesaid shall declare on oath that he verily believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial, and that such previously formed opinion or impression will not bias or influence his verdict, and provided the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror. § 2. The people and the accused, in all capital cases, shall also be entitled to thirty peremptory challenges. § 3. All existing acts conflicting with the provisions of the foregoing sections are hereby repealed. § 4. This act shall take effect immediately. CHAP. 514. AN ACT to define section five of chapter five hundred and eighty-three of laws of eighteen hundred and seventy-one, relating to the entry of judgments. PASSED May 4, 1872; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. The fifth section of chapter five hundred and eighty-three of the laws of eighteen hundred and seventy-one, entitled "An act to make provision for the local government of the city and county of New York," shall not be held or construed in any manner to refer to, or affect the entry of, judgments in any action tried and determined before the passage of said last-mentioned act. § 2. This act shall take effect immediately. The Albany Law Journal. ALBANY, AUGUST 17, 1872. RUFUS CHOATE. which he fell fainting and was carried home to die) Choate had the fortune to hear. Pinkney's eloquence affected him as a touch of mother earth did Antæus in his struggle with Hercules, renewing his zeal and invigorating his energies, and in after years he made his arguments and speeches the subjects of critical study. Of the ability and attainments of Rufus Choateʼas From Washington he returned and entered the a lawyer and advocate, few of the profession of the office of Judge Cummins of Salem; and, in Septempresent day have much more than a traditional knowl-ber, 1823, he was admitted to the bar of the common edge. His biography has been written indeed, and a few of his speeches have been preserved, yet the number is so small, and the style of his oratory was so extraordinary, that his fame must ever depend more upon the testimony of his contemporaries than upon what is left of him. From this testimony it cannot be doubted that he was the greatest advocate that this country has yet produced, and that his rank is in America what Erskine's is in England, what Curran's is in Ireland. Unlike them it was not his fortune to be engaged in causes that interested the whole nation, but from the humbler duties of a leading New England lawyer he wrought out a fame that will live with their fame so long as our common law and common language shall last. แ Mr. Choate was born in Ipswick, Mass., October 1, 1799, and grew to the age of sixteen with but ordinary opportunities of schooling, though with a great fondness for books. He then entered Dartmouth college and at once took and maintained a leading position in his class, graduating in 1819. It was during his collegiate course, that the celebrated Dartmouth college case was in the courts,—a case which, a distinguished statesman said, was almost the first legal controversy which brought into view the relations of the judiciary and the bar to the great interests of American learning." The students were deeply interested in its result, and profoundly stirred by the effort of Mr. Webster before the United States supreme court, and these circumstances were thought to have directed young Choate's attention to the legal profession. The year after his graduation he was a tutor in the college, and then entered upon the study of the law in the Harvard law school, then presided over by Chief Justice Parker and Asahel Stearns. Some months after, however, he removed to Washington and entered the office of Mr. Wirt, then attorney-general of the United States and one of the foremost lawyers of the day. Choate did not, however, to his regret, see much of Wirt, as he was ill most of the time, but he was a careful observer of public men and affairs, and a devoted reader in the congressional library, where, as he himself stated, he spent three days in each week. Marshall was then upon the bench and was a particular object of reverence to young Choate; but his admiration was mainly centered upon Pinkney, who was then, confessedly, the greatest living American advocate, and whose last argument (in the midst of pleas of the county, and two years later to that of the supreme court. He first opened an office in Danvers, and underwent that briefless period of despondency and hope deferred that comes, and has come and will come, to almost every beginner at the bar, be his capacity ever so great. Indeed, so hopeless did the future, at times, look to him that his biographer tells us that "he seriously debated whether he should not throw up his profession and seek some other method of support." But he relaxed no effort to perfect himself in the law and the practice. He studied thoroughly the reports and the text-books, and went carefully over again and again those cases in which he had been unsuccessful, to discover new arguments that he ought to have made, and new points that he ought to have developed. Especially did he apply himself to acquiring the use of that most dangerous weapon – crossexamination, which, like the boomerang, if not skillfully handled, is apt to be most dangerous to the user. Meantime he formed a happy marriage alliance with Miss Helen Olcott, daughter of Mills Olcott, Esq., of Hanover, N. H., a lady of great good sense and intelligence, and who brought to him that sympathy, encouragement and support that is of such nameless value to an ambitious young man. There is one feature in those early days of Choate that every young lawyer would do well to emulate — there are many indeed but this one in particular-his steadfast adhesion to the rule to do thoroughly and well whatsoever his hand found to do, irrespective of reward or of the amount involved or the dignity of the case. "Before a justice of the peace, in an office not larger than a shoemaker's shop, in defense of some petty offender, he poured forth the same wealth of words and illustrations, of humor and wit, and in its measure, of learning and argument which afterward delighted the supreme court and the senate." He argued at full length every case he tried, not alone for the good of his client but also, and perhaps sometimes chiefly, for his own good-for the sake of increasing his powers as an advocate. One writer says of him: "One of the present justices of the supreme court was appointed, in company with two others, referees in a cause to be heard at Danvers, in about the year 1826. He proceeded, the day before the time appointed, to that town, and on alighting at the inn was met at the door by one he took for the innkeeper, by whom he was shown into the parlor. This man was dressed in very democratic Mr. Choate's eminent success was not the result entirely, nor mainly of genius, but of indomitable perseverance, untiring study, and a hearty love of his profession. He loved it, says one, "not as a nursing mother for the sake of the maintenance it afforded, but as the mistress of his homage and affection." He made the whole domain of literature and science tributary to his success. "Let the case of a busy lawyer," said he, in his address at the opening of the Peabody Institute, "testify to the priceless value of the love of attire, with cheap pantaloons, a long, slovenly vest, a blue coat with metallic buttons (and quite too small for him), and a black cravat which resembled a string thrown around rather than tied on his neck. The next morning the referees met for the hearing, and the same young man arose and opened the case. The Judge has said, that though he has since on many great occasions heard Mr. Choate, he never heard him surpass that opening. This must have been the first year of his practice. The young advocate afterward informed the judge that he had sat up all night pre-reading. He comes home, his temples throbbing, paring his argument." Such assiduity, such zeal and untiring industry, is sure, sooner or later, to bring its reward, and it came early to Choate. His professional fame spread rapidly, and his vigorous eloquence and fidelity to his clients soon brought him a lucrative business. In 1828 he removed to Salem, whither his high reputation had preceded him, and where he was soon acknowledged the leader of the bar a bar which had boasted of Dane and Parsons, of Story and Putnam, which then boasted of Pickering and Leverett, of Rantoul and Caleb Cushing. In 1830 he was elected as a representative in congress, and immediately set about a course of study that should fit him for his new duties. As an illustration of his plan of study we copy the following, which was found in his common-place book: "Nov. 4, 1830. "FACIENDA AD MUNUS NUPER IMPOSITUM. "1. Pers. Quals. [Personal Qualities], Memory, Daily Food, and Cowper dum ambulo. Voice, Manner, Exercitationes diurnæ. "2. Current Politics in papers. 1. Cum Notulus, daily, "3. District S. E. [i. e., South Essex], Pop., Occs. [pop- sources. "5. Exam. of Pending Questions: Tariff, Pub. Lands, Indians, Nullification. "6. Am. & Brit. Eloquence: Writing, Practice." In 1833 he was again returned to congress but resigned his seat in 1834, removed to Boston and resumed the practice of the law. In 1841 he was elected United States senator in place of Daniel Webster, who had been appointed secretary of state under Harrison. He left the senate in 1845 heartily tired of politics and returned to the pursuit of his favorite profession, which he pursued with abundant success until his death in 1859. He was at one time or another offered the attorney-generalship of his State and of the United States, a professorship in the Harvard law school, and a seat on the supreme bench of Massachusetts. But these positions he declined, preferring the active practice of the bar. his nerves shattered, from the trial of a week; surprised and alarmed by the charge of the judge and pale with anxiety about the verdict of the next morning; not at all satisfied with what he has done himself, though he does not see how he could have improved it; recalling with dread and self disparagement, if not with envy, the brilliant effort of his antagonist; and tormenting himself with the vain wish that he could have replied to it and altogether a very miserable subject; and in as unfavorable a condition to accept comfort from wife and children, as the poor Christian in the first three pages of Pilgrim's Progress. With a superhuman effort he opens his book and in the twinkling of an eye he is looking into the full 'orb of Homeric and Miltonic song' or Pope or Horace laughs him into a good humor." But equally fond was he of reading the laws; and himself said: "There is a pleasure beyond expression in revising, re-arranging and extending my knowledge of the law." He could even find enthusiasm in Coke Littleton whom Lord Mansfield proupon nounced "an uncouth crabbed author," for he remarked to a friend, "I am reading over again Coke upon Littleton. He is an enthusiast in the old law, and I want him to inspire my enthusiasm; for it would be dreadful, you know, to lose one's interest in the profession to which a man is going to devote the last ten years of his life." Although he had laid the foundations of his knowledge broad and deep, he was not, like too many, content to rest there. His whole life was one of concentrated industry. It is said that he began to study a case the moment it came into his office, and kept it up till the day of trial. Standing at a high desk, with pen in hand, he delved among the mines of the law. Every principle, every thought, every occurrence likely to prove serviceable went down upon his notebook in his wonderful chirography - Greek to the world, but clear to him. Even the thoughts, and sometimes the language of his addresses to the jury and arguments to the court, were written down, but not used in court. In the preparation of his arguments on questions of law he stopped short at no labor. A former partner of his said: "It would often happen that the case was nearly reached for argument at one term of the court, every possible preparation having been made, and the brief printed, yet the term would end, and the case go over. The former preparation then made but the starting point for him. At the next term a fuller brief appeared; and this might happen several times." During all the years of his constant professional labors, he yet found time for a careful study of the science of the law. On the appearance of a new volume of Massachusetts reports he would take every case of importance, make a full brief upon each side, draw up a judgment, and finally compare it with the briefs and judgment reported. "In preparing this brief," he said, in a little journal that he kept, "law, logic, eloquence, must be studied and blended together. The airy phrase, the turn of real reply, are to be sought and written out. I may embody in a common-place book the principles acquired; and I shall particularly strive to become as familiar with the last cases of the English and Federal benches at least, and if possible, with those of New York, Maine and New Hampshire, as of our own." Again, he adds later: "The gift of an interleaved digest of Massachusetts cases suggests and renders practicable a plan of reviewing and reviving the law. I shall add the fifth volume of Metcalf to the Digest as it stands, and in so doing advert to the whole series of decisions. This will not interfere with my plan of making a frequent brief on legal theses." How very few indeed of our young lawyers, with little or no business to occupy their time, would undertake and persevere in so laborious a process of education. Choate, like Chatham, and Pitt, and Erskine, and Curran, made oratory a special and life long study. It is said of him, that "he was a thorough master of logic. He had studied it not only in detail and immediate application of style and arrangement, but in its essence and origin." But he clothed it in such a wealth of words and imagery, that some of his rivals, in his earlier career, denied his logical powers until they learned it to their sorrow. He made the most constant efforts to increase and enrich his vocabulary. He studied words. He read and reread the best classics, but translation was his principal method and he was indefatigable in it. He persevered in it daily, even in the midst of his most arduous business. Five minutes a day, if no more, he would seize in the morning, for this task. He attended chiefly to multiplying synonyms. For every word he translated he would rack his brain and search his books till he got five or six corresponding English words, and then he would select the best. But we have exceeded our proposed limits and must close without noting many things in his life and character worthy of mention, and omitting all reference to the principal causes in which he was engaged. We will, however, give the following description of him and his style of oratory from one who knew him well and heard him often. "In height he towered full six feet, and his finely proportioned figure indicated a constitution hardy and vigorous. The well-developed head was covered with close, curling hair. His dark, deeply-marked features and restless eye showed that his frame of iron was the habitation of a spirit of nervous energy and impulse. Such was his expression even in repose, but when lightened up, with the fires of eloquence flashing from his dark eyes and features, while his voice flowed with a mellifluous sweetness which might have made applicable to him the compliment paid to Plato, that "bees swarmed on his lips," and "The hand sang with the voice," the effect was irresistibly charming. Nor was his oratory the mere outside flash of display unsustained by well-disciplined power of thought. What he said, if not truth, had always a specious, deeply studied, veri-similitude, and the longer we listened the more we wondered and admired. His manner complied, more than that of any other speaker we have heard, with Demosthenes' first, second and third, postulate: action, action, action. His gesticulation, always fervid, was often passionate, and sometimes almost frantic. The tout ensemble of the orator was entirely original and unique, without precedent, and beyond the power of copying or repetition. The gaze of his roving deep black eye, seeming the hiding place of all things, was wild and sybyline; his words, as they caught the ear, were glowing and gorgeous; the strain of his thought, always discriminating, seemed sometimes subtle enough to Sever and divide A hair 'twixt north and north-west side. His argument and imagery were often connected in an impetuous climax of sentences almost endless, very effective when driven home by his voice, gesture and mien of inspiration, yet fairly putting one out of breath when read afterward as plain prose." But his restless energy and constant devotion to work were too much even for his iron constitution, and in the early part of 1859 his health failed, and he was at last induced to take a trip to Europe; but on the way out he grew rapidly worse and was landed at Halifax, where, on the 13th of July, 1859, died the greatest of American advocates. MISTAKES OF LAW. It The greatest wonder of our jurisprudence is the so-called maxim, ignorantia juris non excusat. clings to the professional mind like superstition to the masses. And yet there is abundant evidence, that, in its application to the civil relations of men, it is far from being a well-settled doctrine that mistakes of law do not excuse. An examination of the adjudications reveals the fact that this maxim has been the most discussed, controverted, affirmed, denied. and modified theoretically, and at the same time the least agreed upon and applied practically of any of the epitomized principles of law, which have been transmitted to us from the distant past. So that it is |