pose a person imprisoned for 10 years, and that a cause of action, the limitation of which is six years, accrued the day he was imprisoned. Now at the end of the sixth year of his imprisonment an extension would commence and, one-half year after his release, would have lasted five years, the maximum allowed. His right to sue would, therefore, be lost the day his first half year of liberty ended, although that day would be less than one year after disability removed. Suppose, on the other hand, the imprisonment to have lasted nine and one-half years. Then the extension of one year after disability removed would have terminated before the extension of five years, taken as a whole. If the imprisonment had lasted 10 years, both restrictions would have taken effect at the same instant, and it would make no difference which one we regard as checking the further operation of the rule and ending the right to sue. To sum up the result in the case of what may be called 6 year actions, it may be said that, if the disability continues less than a year, the total period allowed would be 6 years, plus the period of disability; if the disability continued so long as a year, and not more than 6 years, the total period allowed would be 7 years; if it continued more than 6, and not more than 10 years, the total time would be the period of disability, plus 1 year; if it continued 10 years, or more, the total time would be 11 years, except in case of infancy, in which the total period would be the duration of infancy, plus one year. In similar manner we might obtain and summarize results for limitations of 10 years, of 3 years, etc. Lest any criticism arise that so much has been written on a subject apparently so simple, it may be observed, in justification, that the sections considered are in fact rather involved and are difficult to fully appreciate in all their bearings. This is partly due to the necessary difficulty of expressing in a concise and yet clear manner a rule for such a wide variety of cases. It may also be partly due to the method of phraseology adopted which is disjunctive in its nature and imposes (as in sec. 396) exception upon exception; in which respect it is in marked contrast to the direct and simple, because conjunctive, language of the earlier statutes governing the question (sec. 88 old code; 2 R. S. 285, sec. 16,) below quoted. The courts have criticized sec. 396, for instance in 91 Hun, 553, it was said to be "awkwardly expressed," but whether, in view of the changes introduced in the law by the present code, its language could be improved upon is not the purpose of this paper to inquire. The difficulties met with by one who starts out to interpret these sections (375 and 396) in the light of the authorities are perhaps somewhat increased, it may be said with all deference, by the manner in which the Court of Appeals have expressed certain dicta upon the subject in Acker v. Acker, 81 N. Y. 143, and Dunham v. Sage, 52 id. 229. Under the influence of such dicta a reader may even go astray in the later case of Howell v. Leavitt, 95 N. Y. 617, which is carefully and clearly expressed. authority for the statement that "If an infant was eight years of age when the right of action accrued, he would have ten years after arriving at twentyone years within which to bring the action, making in all a period of twenty-three years. If the infant was eighteen when the cause of action Take next an action which is limited to 20 For instance, that case which the writer relies years, other than one to recover real property, as, upon to support the views above expressed, is cited for instance, to foreclose a mortgage. If the period by so careful and able a writer as Mr. Bishop of disability is anywhere between 1 and 20 years, (as would appear from pages 73 and 74 of his excelinclusive, the person has in all 21 years for bring-lent work on Code Practice in Personal Actions) as ing his action. If the period is between 20 and 24 years, inclusive, the total time allowed is that period, plus one year; for example, 22 years in all, for 21 years of disability; 24 years in all for 234 years disability, etc. If the period of disability is 24 years, or over; the total time allowed is 25 years. Without going into particular cases, it is enough to say that any reader who cares to take particular instances will find that for disabilities up to 24 years the restriction based upon the one year period first takes effect; for disabilities for more than 24 years, the restrictions based upon the five year period first takes effect, while for a disability of exactly 24 years both take effect together. Since the restriction based upon the five year period takes effect first, only in cases where the disability has continued more than 24 years, which exceeds any possible period of infancy, it is obvious that in this class of actions infancy has no advantage over other disabilities. accrued, he would have twenty years after he arrived at twenty-one, and not merely ten years after he arrived at twenty-one, because that would limit the right of action to thirteen years after the right of action commenced." That is to say, an infant either of eight or eighteen has twenty-three years to bring his action. An infant of the intermediate age of fourteen (as appears in Howell v. Leavitt), has more time than either, viz: twenty seven years. It is safe to say that when such a reader as Mr. Bishop so misunderstands the language of so lucid a writer as Judge Finch, the subject is of such in trinsic or adventitious difficulty that no excuse for disability would have no effect upon the statute, a protracted article is needed. The same thing is apparent in Acker v. Acker, 81 N. Y. 143, 146, where it is said "we have been thus minute, though we may not have been clear, in stating our view of the statutory provision, as it seems from the speech of counsel that difficulty is found in interpreting it, and it is said that a previous decision of this court is not to be understood. That decision is in Dunham v. Sage, 52 N. Y. 229, and its utterance is the same in effect as that which we now make. When Judge Folger so speaks of his own effort, and so refers to an opinion of Judge R. W. Peckham (the elder), who wrote in the Dunham case, it may be taken for granted that the question in hand is not an easy one. In Dunham v. Sage, 52 N. Y. 229, 232, it was said, "as this action was not commenced within the ordinary statute of six years, nor within one year after her disability ceased, the complaint was properly dismissed." The decision was upon section 101 of the old code, which was in part as follows. "The time of such disability is not a part of the time limited for the commencement of the action; except that the period within which the action must be brought, cannot be extended more than five years by any such disability, except infancy; nor can it be extended in any case longer than one year after the disability ceases. This phraseology is slightly different from section 396 of the present code (above quoted, p. ) but, to the writer, no change appears to have been wrought in the meaning, unless by the use of the word "longer" in reference to one year, whereas "more" was used just before in reference to five years. Such a change is unusual, and would ordinarily be significant, but it is difficult to discover in this case that the one word has any different meaning from the other. The opinion quoted from makes no reference to this change, and it is quite likely that the dictum is attributable to the fact that the judge who delivered the opinion was unconsciously influenced to some degree by the provisions that then existed (sec. 88 code), and had long existed (2 R. S. 295, § 16; 1 R. L. p. 124, Greenleaf Ed., Laws of N. Y., page 97), concerning actions for the recovery of real property, viz: That they might be wrought "after the period of twenty years, and within ten years after the disability shall cease." Compare sec. 402 of the present code. and increase the period to seven years. It may be remarked, before leaving the Dunham case, that the decision would have been the same whichever view of the statute was taken, because the action in fact was not begun until over nine years after the right accrued. Therefore, for the purpose of reconciling that decision with the one in Howell v. Leavitt, supra, the remarks above quoted may be regarded as dicta. Reverting again to the Acker case it will be found that the court said at p. 147: "This suit was brought on September 10, 1877, in less than twenty years from the expiration of the five year term, and had there been no other statute (refering to the statute of 1870 which took away the disability of coverture) her suit would have been in time." In speaking thus the judge forgot, for the instant, that the restriction based upon the one year extension after disability sometimes first takes effect and defeats the further operation of the five year extension, and such indeed was the fact in the case he was discussing. The disability had continued eight years and ten months. Consequently at the end of eleven years and two months after disability removed the twenty years would have elapsed and an extension would begin, which, as it would be an extension after disability removed, would be limited to one year. When, therefore, the judge said, "In twenty years from that day (of disability removed) her right of action would have been gone," he should, in view of the one year limitation, have said "in twelve years and two months, etc." But notwithstanding the fact that there can be selected from the decisions of the Court of Appeals the above fragments, and perhaps others, which seem to be in conflict with the views expressed in this article, the writer believes that a careful reading of those decisions in their entirety, particularly that in the Howell case, due regard being had to the exact point decided in each case, will satisfy most readers that the above views are based at least upon the spirit of the authorities. A. S. NORTON. 14 Co. Court House, New York City. Notes of American Decisions. JUDGMENT-COLLATERAL ATTACK -- INSOLVENCY. -An order of a probate court in Ohio, in a proceeding over which it had fully acquired jurisdiction, finding that all the creditors of an insolvent had assented to the raising of the assignment, cannot be collaterally impeached. (State Nat. Bank of Maysville v. Ellison [U. S. C. C., Ohio], 75 Fed. From other portions of the opinion it is made apparent that the dictum just quoted was not an inadvertance. For instance, it is said at p. 231: "It (the disability) may continue two, three or four years. In such a case the disability has no effect upon the Statute of Limitations." But, as shown above, if the theory of this article is correct, such a | Rep. 354.) MANDAMUS PRACTICE. When a plaintiff has shown himself entitled to a mandamus to compel the levy and collection of taxes by a county to pay a judgment against it, he is entitled to one which will set in motion all the necessary machinery, including the action of an assessor and collector, required to be taken after the levy of the tax by the County Court, although no demand has been made on such officers to perform the acts so required. (Marion County v. Coler [U. S. C. C. of App.], 73 Fed. Rep. 252.) APPROPRIATION WATER AND WATER COURSES AND ABANDONMENT. -Abandonment by the appropriator of a water course or ditch, where the nonuser has existed less than five years, occurs under the California statute (Civ. Code, §§ 1410, 1411), only when there is a concurrence of act and intent. Yielding up of possession and non-user are evidence of abandonment, but this evidence may be rebutted by showing that there was no intention to abandon. (Integral Quicksilver Min. Co. v. Altoona Quicksilver Min. Co. [U. S. C. of App.], 75 Fed. Rep. 379.) WATER AND WATER COURSES-APPROPRIATION FOR IRRIGATION.-The right of one who has appropriated water for the purpose of irrigating his land is not interfered with by a subsequent appropriation by another for mining purposes, at a point further up the stream, unless such use impairs the value of the water to the prior appropriator for the particular purpose of his appropriation, namely, that of irrigation. (Montana Co. v. Gehring [U. S. C. C. of App.], 75 Fed. Rep. 384.) Notes of English Cases. COMPANY - PROXIES. By the articles of association of a company it was provided that every motion made and submitted at a general meeting should be decided in the first instance by a majority in number of the members to be ascertained by a show of hands; that every member should have one vote for every share which he should hold in the company; and that votes might be given either personally or by proxy. A resolution was put at a general meeting, and upon a show of hands being taken, twelve shareholders voted for it and the plaintiff and one other shareholder against it. The plaintiff claimed at the meeting to vote on behalf of himself and certain proxies which he held, and that, in ascertaining the number of votes given, the chairman should count one vote for each person who had appointed him his proxy, in accordance with the decision of Williams, J., in Re Bidwell Brothers Limited (68 L. T. Rep. 342 [1893], 1 Ch. 603), but the chairman ruled against his claim, and declared the resolution carried. The resolution was confirmed at a subsequent meeting. On a motion by the plaintiff to restrain the directors from acting on the resolution: Held, (following The Caloric, &c., Company Limited, 52 L. T. Rep. 846, and differing from Williams, J., in Re Bidwell Brothers Limited), that the ruling of the chairman was right, and that if proxies were to be counted on a show of hands, it would lead to great inconvenience, and in many cases would be impracticable. (Ch. Div.; Ernest v. Loma Gold Mines, Limited; 75 L. T. Rep. 211.) COMPENSATION, COMPULSORY TAKING OF LAND.— A lessee of land by an underlease for the remainder of his term, less one day, demised part of the land to a corporation upon condition that it should be laid the underlease was less than the rack rent, and the out and kept as a public park. The rent reserved by underlease contained a proviso that if any part of the land so let should be taken by a public company under statutory powers, the lessor should be entitled to re-enter the part so taken and hold the same as of his former estate. The land was laid out as a park, and subsequently a part of it was required and taken by a railroad under statutory powers, but the lessor did not re-enter upon the same. Held, that the basis of compensation to be paid by the railway company to the lessor was the commercial value of the land considered as being free from the underlease, and that the lessor was entitled to compensation for the sum for which such land might be expected to let for commercial purposes for the remainder of the term, and not merely for the sum at which it was let under the underlease. (Q. B. Div.; Re Arbitration between Morgan and another [claimants] and the London & Northwestern Railway Co. [respondents.] 75 L. T. Rep. 226.) EXECUTOR AND DEVISEE.-Tapestry which had been cut and pierced so as to fit and cover the spaces in the walls of a room left by the doors and mantlepiece, and which was fix by being nailed to battens placed in chaces cut in the plaster and nailed to the brick work. Held (following D'Eyncourt v. Gregory, L. Rep. 3 Eq. 382), to pass as fixtures under devise of the house. whole or such part as they or he should think fit of the annual income of the share, or presumptive share, of any of his children or grandchildren, during minority, for or towards his or her maintenance and education. The testator left eleven children, two of whom died in the lifetime of his wife, under twenty-one and without issue. Held, on a summons taken out by the trustees for the determination of the construction of the will, that the original gift to the children was contingent on their attaining twenty-one, and that the powers given to the trustees to apply the whole or part of the income as would make the children take a (Chan. Div.; Norton v. Dashwood; 75 L. T. Rep. vested interest, and therefore the children who 205.) LIBELLOUS PUBLICATION.--No claim can be maintained by the publishers of a libellous work against a person informing the individuals libelled of the publication, and who brings action against the publishers resulting in the recovery of damages. (Ct. of App.; Saunders v. The Leyd and Kelly's Credit Index Co., Limited; 75 L. T. Rep. 193.) TRUSTEES.--There is no rule of law which compels the court to hold that an honest trustee is liable to make good loss sustained by retaining an authorized security in a falling market, if he did so honestly and prudently in the belief that it was the best course to take in the interest of all parties. Trustees acting honestly with ordinary prudence, and within the limits of their trust, are not liable for mere errors of judgment. Any loss sustained by the trust estate under such circumstances falls upon and must be borne by the owners of the property, i. e., the cestuis que trust, and cannot be thrown by them on the trustees, who have done wrong, though the result may prove that they possibly might have done better. Re Whiteley; Whiteley v. Learoyd (58 L. T. Rep. 93; 12 App. Cas. 727); considered. died under twenty-one took nothing, and that the testator's real estate was not converted. Fox v. Fox (L. Rep. 19 Eq. 286) not followed. (Ch. Div.; Re Wintle; Tucker v. Wintle; 75 L. T. Rep. 207.) New Books and New Editions. THE AMERICAN STATE REPORTS, vol. 50, by A. C. Freeman, Esq., and the associate editors of the "American Decisions." This, the half century volume of this valuable series, maintains the high standard of merit of its predecessors. The cases have been carefully and ably selected from the reports of fifteen different States, and cover a wide field of law, both civil and criminal Complete indices to notes and cases are in each volume. Published by the Bancroft-Whitney Co., San Francisco, Cal. FEDERAL JURISDICTION AND PROCEDURE, by Wm. A. Maury, Esq., LL.D., of the Washington Bar. This is a compilation, in a convenient hand-book, of the acts of March 3, 1891, and March 3, 1875, (Ct. of App.; re Chapman; Cocks v. Chapman; 75 with the acts supplemental thereto, relating to the L. T. Rep. 196.) WILL CONSTRUCTION. W by will gave his residuary estate to trustees upon trust to permit the same to remain in its actual state of investment, or with the consent of his wife during her life and afterwards at their discretion, to sell and invest the proceeds, and pay the income to his wife during her life, and from and after her decease to pay and divide the whole of his residuary estate unto and equally between all his children and the issue of any of them who might have previously died leaving issue (such last mentioned issue to take their parents' share) upon their respectively attaining the age of twenty-one years. And he empowered his trustees, after the decease of his wife to apply the establishment and jurisdiction of the United States Circuit Court of Appeals and the jurisdiction of the United States Circuit Courts with the regula tions governing the removal of causes from State courts thereto. Certain provisions of the Constitution and of the Revised Statutes relating to the judicial power, together with the rules of the United States Supreme Court appertaining thereto, have been added, while the appendix contains a selection of forms prepared by the clerk of the Supreme Court. The volume presents the law on the subject in hand in a form useful and accessible for both the lawyer and student. Published by W. H. Lowdermilk & Co., Washington, D. C. Price, $1.00. R The Albany Law Journal. ALBANY, NOVEMBER 21, 1896. Current Topics. ECENTLY we had occasion to remind judges and jurists alike that the mass of decisions was yearly increasing at a tremendous pace and at a larger ratio than ever before. In our own State the number of decisions handed down by the courts of appellate jurisdiction are sure to increase from time to time, and every suggestion as to a manner of reducing the number of reports should be received to the end that radical reforms may be instituted. We are reminded of the subject whereof we write by receiving the report of the New York Bar Association and reading the very thoughtful and lucid article on the " Doctrine of Stare Decisis" and a "Proposed Modification of Its Practical Application, in the Evolution of the Law," by Prof. C. G. Tiedeman of the University Law School of New York city. Prof. Tiedeman handles the subject in a masterful and comprehensive manner and makes suggestions which are of much practical value. He approaches the subject of which he treats by stating that the Century Digest of American Cases will this year contain reference to over one-half million cases. Prof. Tiedeman claims in regard to the doctrine of Stare Decisis that it is not properly applicable to anything more than the judgment of the court that the plaintiff should not recover on the proved facts of the case. A very slight reflection on the part of the lawyer will show him that the large majority of cases decided have little more effect than expressing the opinion of the court as to whether the case should be maintained or rejected. Many, in fact the largest proportion of opinions, it will be noted, are simply questions of practice, and we have left very few which are of value to us in determining what the law is. We have, however, regarded Prof. Tiedeman's article from a practical point of view rather than in the light of the doctrine of Stare Decisis, and we consider that it supports most strongly our position that the number of opinions reported should be decidedly reduced in num ber. The article, however, suggests a method VOL. 54 No. 21. by which something may be substituted for written opinions of the courts, which are, as we know, too often repetitions of former decisions, and urges that the law be set forth by syllabi prepared by experts. On this point he says: "The official analysis and exposition of the law which I propose would not interfere with judicial liberty in the rendition of its concrete judgments any more than do the opinions of the court in prior cases now control the judgment of the same or inferior courts in the pending cause of action. Nor would I propose to take away from the decisions of the appellate court their binding force as precedent, so far as to require inferior courts to follow the precedence of the appellate court in its judgment. that the plaintiff on the proved facts of the case, shall or shall not recover. I would still provide for the publication of a report of each case decided by the appellate court, but the report should contain only a statement of the proved material facts of the case, and a concise statement of the ruling of the court on the questions of the law, as a substitute for the published opinions of the judges of the court, which Mr. Justice Peckham says should be construed "strictly with reference to the facts which exist in the case which is decided " I would propose the appointment of the commission composed of the ablest jurists of the State, of the same high character, which is ordinarily attained in the selection of judges, who shall be charged with the reduction of the existing law to the form of commentaries on the different branches of the law, and after the completion of this primary task, to issue annuals, in which the judgments of the court during the current year will be analytically explained in the light of their exposition of the existing law, and the modification stated, if any, which the new case has made in the prior law. The courts are to retain their present right to overrule the existing law, and will be required, at least the appellate courts, to yield no more obedience to the exposition of the commission than they now show to their own prior judgments. I would also propose that the expositions of the law set forth by the proposed commission shall not take on the rigid form of a statute or modern code, but rather the easy flowing form of a commentary. Any attempt to reduce |