NOTES AND CLIPPINGS.

JUDICIAL TENURE.

An Ohio correspondent wishes Case and Comment to speak out in advocacy of a life tenure of judges, and points out the unsatisfactory features of a system under which judges are elected for short terms. Nothing can possibly be better settled than the unwisdom of a judicial system which gives judges only a temporary experience on the bench. The shorter the terms of office the less likelihood there seems to be of re-election. Where the term is very short there is little inducement to a competent man to take a position on the bench, even if the salary be more than his income from law practice, which is not likely to be the case. No good lawyer can afford to have his practice broken up for several years for any slight temporary increase of income. On the other hand, where the judicial tenure is an extended one the salary, if reasonably good, may by its certainty be as attractive as a prospect of considerable larger income, which is not a certainty. Moreover, the amount of salary paid in a jurisdiction seems to be, usually, somewhat in proportion to the length of the judicial term. The longer the term the higher the salary is likely to be. Good salaries and long terms tend to give dignity, honor, and influence to a tribunal. Some men of very great ability, who would be an ornament to any bench, are found from time to time even in those courts where low salaries and short terms exist, but exigencies of politics may soon retire them from office, and a short period of service gives them scant opportunity to make the reputation of which they are capable. It is unfortunate that in so many jurisdictions false economy and false theories of rotation in office are allowed to interfere with the development of the best possible tribunals.

Election, or appointment for life, however, is not necessary to secure what is practically a life tenure. Experience in the State of New York has demonstrated that the judges of the highest court, though elected for fourteen years, are

very nearly secure in their positions for life, or up to the age limit fixed by the Constitution. The election just held illustrates this. Judge O'Brien, whose term had expired, was renominated by both the great political parties, and received an election substantially unanimous. The record in that State for many years past is substantially to the same effect. An able judge of the court of appeals or supreme court is usually sure of re-election when his term expires. The long term, supplemented by the good sense of the people in respect to re-elections, makes a system quite as good as that of an election for life.-December Case and Comment.

JUDGE MERRIMON BELIEVES THAT SOUTH DAKOTA WILL LOSE BOND SUIT.

In an interview published in the Asheville Gazette, Judge James H. Merrimon, who was one of counsel in the re-argument in the South Dakota bond case in Washington, says:

"I have every reason to believe that the Supreme Court will decide in favor of the State of North Carolina, and I think that the strongest point made was that the suit was the result of a fraudulent combination on the part of the agents of South Dakota and the holders of the second mortgage bonds to evade the eleventh amendment of the Constitution of the United States and acquire standing before the Supreme Court, the idea being that if South Dakota could foreclose the mortgage and have a sale of the stock of North Carolina in the North Carolina Railroad Company, the proceeds would be distributed, not only to the bonds held by South Dakota, but to other bonds of the same class in the hands of individuals."

Judge Merrimon says that his argument was along the same lines as the previous argument in the case. The points had been made by both Judge Shepherd and Mr. Rountree as strongly as they could well be made, and really needed no additional oral argument. He says he did make one new point, namely, that the bonds were invalid because they had not been issued in accordance with the formalities which the statutes of North Carolina required. He pointed out that in 1855, at the same session of the Legislature at which the charter of the Western

North Carolina Railway was granted, a public statute was passed prescribing with great particularity the mode of authenticating the public debt of the State and that by this mode no bond could be valid or at all binding on the State unless signed by the Governor and countersigned by the Treasurer and sealed with the great seal of the State, and not one of these formalities was complied with; and that there were other essential formalities which were not complied with. These bonds had never been regarded as binding obligations; not alone because they were not properly executed, but because they were unlawfully issued and the State has never realized exceeding 25 per cent. to 40 per cent. of the bonds, if that much.

Attorney-General Gilmer, Judge Merrimon says, made an excellent speech, but he necessarily had to go over the same points discussed by the other lawers.-News and Observer.

Apropos of the burden of proof in civil actions, of which Judge R. W. Winston wrote in such an interesting style in our last number, the Supreme Court of the United States at its present term, L. C. P. Reports, Jan. 1, 1904, p. 57, in Mosheuvel vs. Dist. of Columbia, which was an action for damages for personal injury by reason of an obstruction on the sidewalk, Justice White writes:

"It is not contended at bar, if it be found that error was committed in taking the case from the jury because of the contributory neglect of the plaintiff, nevertheless, the judgment should be affirmed because there was no adequate proof to go to the jury on the question of the negligence of the defendant. The sole controversy, hence, is whether the case was rightly taken from the jury because, as a matter of law, contributory neglect on the part of the plaintiff was demonstrated.

"Two elements of fact are involved in determining whether the alleged contributory neglect of the plaintiff was a question for the jury or for the court. The first is, what were the undisputed facts? and the second, whether such facts necessarily engender the ultimate inference of fact as to contributory neglect.

"The elementary law is that issues of fact are to be decided by the jury. But where the probative facts are undisputed, and where all reasonable minds can draw but one inference from them, the question to be determined is one of law for the court. In other words, the prin

ciple is that where there is no disputed issue of fact, and in reason no controversy as to the inferences to be drawn from the undisputed facts, there can be no real question of facts to be passed on by the jury."

In the Northern Securities Company case, which was recently argued in the Supreme Court of the United States, motion was by counsel for leave to file briefs as amicus curiae, which motion was politely denied, the Chief Justice stating that, "Where, in a pending case, application to file briefs is made by counsel not employed therein but interested in some other pending case involving similar questions, and consent is given, the court has always exercised great liberality in permitting this to be done. And doubtless it is within our discretion to allow it in any case when justified by the circumstances. But the court thought that as it did not appear that the applicant would be affected by the decision in this case, 'and as the parties are represented by competent counsel the need of assistance cannot be assumed and consent has not been given,' that the applicant ought to be denied."

It seems to us that no one could be a true Amicus Curiae who wanted to file more briefs in that case.

LAW BOOKS NOTES.

We call special attention to Judge Womack's advertisement of his new book, The Law of "Private Corporations of the State of North Carolina." The profession is already indebted to him for his three volumes of The North Carolina Digest, and will soon need a fourth. We feel sure that his treatise on the law of private corporations will be a

valuable addition to our legal literature and a necessity to every lawyer's library.

Little, Brown & Co. will publish early in January a ninth edition of Parsons' great American authority on the Law of Contracts, edited by John M. Gould. This new edition contains references to 6,000 of the very latest authorities. (3 vols., 8vo., Law Sheep, $18.00 net).

A new edition-the ninth-of the American Law of Landlord and Tenant, by John N. Taylor, revised and edited by Henry F. Buswell, author of "The Law of Insanity," etc., will be published by Little, Brown & Co. early in January. (2 vols., 8vo., Law Sheep, $12.00 net.

Volume III of Gould & Tucker's Notes on the United States Revised Statutes (from 1897 down to the close of the last Congress, March 4, 1903,) is announced for early publication by Little, Brown & Co., Boston.

Cooley's Constitutional Limitations, a new edition of which has just been published, ranks fourth in a list of fifty-two law text-books most frequently cited by the Supreme Courts of the various States during the first six months of 1902. "Greenleaf on Evidence" was cited five times as often as any other text-book on the subject.

A most flattering testimonial to its value as an authority on the important subject of which it treats, was given Judge Walter C. Noyes' Treaties on the Law of Intercorporate Relations in the great case of the United States versus the Northern Securities Company, which has occupied the attention of the Supreme Court at Washington. The brief of Attorney-General Knox, in behalf of the United States, contained thirteen references to Judge Noyes' book, including some of the most important points relied upon by the Government.

Bender's Law Book Quarterly, from Mathew Bender, Law Publisher, Albany, New York, with its usual store of information concerning new publications, is on our table.