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been often quoted since and is conclusive in the Fed- street in the borough of Susquehanda, and hurt her eral courts in regard to the validity of their own knee. The ditch had been dug to conduct water pipes processes when collaterally assailed, as in the present to the premises of defendant below, who had precase.

viously obtained a license from the town council auThe court, after discussing the nature of the juris- thorizing such digging. The work was done by a condiction in cases of attachment, their relation to suits tractor who was to receive a specified sum for the job, in rem and in personam, in auswer to the question, on and over whose manner of doing the work defendant what does the jurisdiction of the court in that class of had no control. The negligence in leaving the ditch cases depend ? answers it thus: “It seems to us that open was that by the contractor. The verdict and the seizure of the property, or that which in this case judgment below was for plaintiff, and defendant took is the same in effect, the levy of the writ of attach- a writ of error. ment on it, is the one essential requisito to jurisdic- GORDON, J. This case presents two main questions tion, as it unquestionably is in a proceeding purely in for our consideration and resolution, and these being rem. Without this the court can proceed no further: determined, all others raised by the assignments may with it the court can proceed to subject that property, be passed as of minor consequence. Was the digging to the demand of plaintiff. If the writ of attach- of the ditch in the public street of the borough of Susment is the lawful writ of the court, issued in proper quehanna a nuisance per se? If not; if it was such a form under the seal of the court, and if it is by the necessary work as was properly licensable by the proper officer levied upon property liable to the at- borough council, then as the second question, was the tachment, when such writ is returned into the court defendant chargeable with the negligence of his conthe power of the court over the res is established. The tractor who had charge of the work? It is certainly affidavit is the preliminary to issuing the writ. It may true, that if the premise assumed by the court below be a defective affidavit, or possibly the officer whose be correct, the conclusion adopted by it follows as a duty it is to issue the writ may have failed in some matter of course. If the ditch dug for and at the inmanner to observe all the requisite forınalities, but stance of Dr. Smith was a public nuisance, then he the writ being issued and levied, the affidavit has and all engaged in sinking it were responsible for all served its purpose, and though a revising court might damages resulting from it, and the doctrine of resee in some such departure from the strict direction spondeat superior is out of the case. But we do not of the statute sufficient error to reverse the judgment, think it was per se a nuisance-such a work that the we are unable to see how that can deprive the court of borough council had no power to permit. This ditch the jurisdiction acquired by the writ levied upon the was dug for the purpose laying a pipe for the conveydefendant's property." See Voorhies V. Bank of ance of water from a spring to one of the defendant's United States, 10 Pet. 449; Grignon v. Astor, 2 How. houses on Willow street. Water is one of those prime 319.

necessaries without which people cannot live, and the If in a case where the title to land is to be divested publio streets of towns and cities have, from time imby a proceeding in which its owner is not within the memorial, been used as a means for its production or jurisdiction, and is never served with process nor conveyance. Formerly it was very common for the makes any appearance, the writ on which the whole citizens of the various municipalities to sink wells for matter depends is held valid, though there be no suffi- this purpose on the public thoroughfares, and this, as cient affidavit to support it, how much more should was said by Chief Justice Gibson, in Barter v. Comthe writ be held to protect the officer in a case where monwealth, 3 P. & W. 253, was by sufferance, and in the defendant is in court and makes no objection to it, subjection to the corporate franchise. In these days nor seeks to set aside or correct it, and where the when water works are common to all the larger towns, court before it issues the writ bas jurisdiction of the pipes are laid in the streets from which the water supparties to the suit ?

ply is drawn both for public and private uses, and We think that when the writ is offered in a collat- although the right thus to lay pipes is usually accorded eral suit against the officer who executed it as evidence to a corporation, it by no means follows that it might of the authority of the court to command him to at- not be done by private persons acting under municitach the property of defendant in that suit, it is not pal authority. roid, though it might be avoided on a proper pro- Necessity, as was held in the case of Commonwealth ceeding, and in the contest for the value of the goods v. Passmore, 1 S. & R. 217, justifies many actions which seized with a stranger who claims them it is sufficient would otherwise be nuisances. No one has the right to raise the issue of the liability of those goods to the to throw wood or stones in the street at his pleasure, exigency of the writ.

nevertheless as building is necessary, building mateThe judgment of the Supreme Court of Michigan rials may be laid therein for a reasonable time and in is reversed, with directions for further proceedings in a convenient manner. So may a merchant occupy the conformity to this opinion.

street with his goods; in a like manner may the comJudgment reversed. mon highways be temporarily opened for the purpose

of building vaults under them, or under like regula

tions, private drains may be connected with the comNEGLIGENCE OF CONTRACTOR IN DIGGING mon-sewers or gutters, or houses and other buildings DITCH IN STREET FOR PRIVATE

with the streets by alleys, door-steps and the like. By WATER PIFE.

such things as these and many others, which are justi

fied by necessity or custom, may public highways be PENNSYLVANIA SUPREME COURT, APRIL 16, .883.

occupied temporarily or permanently, and it would

be strange indeed, if in the face of all this array of SMITH V. SIMMONS.

precedents a private citizen, acting under municipal The digging of a ditch in a public street with the consent of license, could not without committing a public nui-,

the municipal authorities for the purpose of laying a pipe sance lay a water pipe along a street to his house. to supply water to a private citizen is not per se a nui- Such strictness as this would, in some of our county sance, and if the work is done by a contractor the citizen villages, deprive the inhabitants of their water supply employing him is not liable for the contractor's negli altogether, and would, in many other instances, segence.

riously interfere with the business and comfort of our CTION for personal injury to plaintiff below, who people.

stepped at night into a ditch dug in a public From considerations of this kind we are compelled


to dissent from the ruling of the court below on this vide for the holding of terms of the Supreme Court in question of nuisance, and to hold, on the contrary, each judicial district (id.); and may pass a general that the digging of the trench, complained of in this banking law (Article 9, $ 13). If upon re-cousideration case, under the license of the borough council, was not of a bill returned by the governor, “two-thirds of that such an act as of itself reudered the parties engaged in house" in which it originated agree to pass it, it guilty of a public wrong.

it is to be sent to the other house, and if apHaving arrived at this conclusion, the question that proved “by two-thirds” of that house it shall become next presents itself is that involving the responsibility a law. Article 4, $ 11. If upon re-consideration of an of the defendant. If however the testimony of Jonas appropriation bill, one or more items thereof objected Florence, the contractor, it is to be believed, Dr. to by the governor are approved by two-thirds of Smith was not his responsible superior. Florence the members elected to each house," the same shall undertook the whole job for the compensation of $25, become part of the law. Id. Orders, resolutions and and the defendant had nothing to do except furnish votes requiring the concurrence of the two houses (exthe pipe and the box in which it was to be inclosed. cept such as relate to their business or adjournment), With Florence, in the execution of this contract, he if returned by the governor with objections, “shall be could no more interfere than he could about a job in repassed by two-thirds of the members of the two which he had no interest. He might advise, but the houses.” Article 6, $ 12. “Whenever two-thirds of contractor could receive or reject that advice as the members elected to each branch of the Legislahe saw fit; he might put a fence around the ditch ture" shall think it necessary to call a constitutional whilst in process of construction, and Florence might convention, they shall recommend, etc. Article 14, treat it as an obstruction and remove it. In other $ 2. words, Dr. Smith could not control the execution of The Constitution also provides that a majority of the contract. He was entitled to a finished job, but each house shall constitute a quorum for the transacit was not his business to seee to or regulate the man- tion of business (article 4, $ 3), and that no law shall ner of its doing. The case is evidently governed by be passed unless voted for by a majority of all the Harrison v. Collins, 5 Nor. 153, wherein it is said, by members elected to each branch of the Legislature, Mr. Justice Mercur: “If one renders service, in the and the vote entered upon the journal of each house. course of an occupation, representing the will of the Id., $ 13. employer only as to the result of the work, and not as These are all the constitutional provisions that to the means by which it is accomplished, it is an in-throw light directly upon the question in hand. They dependent employment.” But certainly, in the case show: First, that while a majority of the members of under consideration, Florence was the subordinate of each house constitute a quorum, no law, however unimdefendant in nothing but the design, whilst in every portant, can be passed without the votes of a majority thing which pertained to the execution of the work he in each branch of the Legislature of all the members was the chief and only director and executor, and it elected to that branch. This is the general rule of hence follows, that for his negligence the court ought legislation prescribed by the Constitution. not to have held the defendant responsible.

In the second place it appears that there are certain We therefore think without particularizing as to the particular subjects which are not left to the operation assignments of error, the court should have instructed of this general rule. For this but one sensible reason the jury, that if they believed the uncontradicted evi- can possibly be assigned. Certainly those subjects could dence on the part of the defendant, as to the charac- not have been singled out from the mass because they ter of his contract with Florence, the plaintiffs were were of less importance than those of ordinary legislanot entitled to their verdict.

tion. The provisions for the creation of new courts, The judgment of the court below is reversed, and a for the increase of the judges of the Supreme Court, new venire awarded.

and for making that court itinerant, are in effect provisions for changing the Constitutiou itself; that is to

say, the Legislature is authorized to change the rule MEANING OF CONSTITUTIONAL REQUIREMENT which the fundamental law specifically prescribes in OF A TWO-THIRDS VOTE.

the premises. Irrespective of this consideration, the

establishment of new tribunals for the administration MINNESOTA SUPREME COURT, NOVEMBER 1, 1883. of justice, the increase of the number of judges of the

highest court in the State, the place where that court STATE OF MINNESOTA V. GOULD.

should be held, and the question whether a policy The Minnesota Constitution provides thus: “The judicial which has been discarded in almost every other com

power, etc., shall be vested in a Supreme Court, etc., and munity, viz., that of making this court itinerant, sball such other courts inferior to the Supreme Court as the

adopted here, are subjects which manifestly Legislature may establish by a two-thirds vote.” Held, to mean a two-thirds vote of all the members of each house, transcend in general and public importance those of and not a two-thirds vote of a quorum.

ordinary legislation.

That a general banking law is for the most obvious PETIT ETITION upon the relation of one Eastland for a

yet weighty reasons one of extraordinary importance writ of prohibition against the defendant, forbid

will not be questioned. In conformity with a practice ding him to act as justice of the municipal court of which we believe to be of universal prevalence in this Moorhead, a court organized under a statute of Min-country, our Constitution has, for reasons of acknowlnesota. Sufficient facts appear in the opinion.

edged wisdom, conferred the veto power upon the BERRY, J. “The judicial power of the State shall executive. The enactment of a law over a veto is an be vested in a Supreme Court, District Courts, courts extraordinary exercise of legislative power. It overof probate, justices of the peace, and such other courts rides the official disapproval of the proposed law by inferior to the Supreme Court as the Legislature may one of the three grand departments of the governfrom time to time establish by a two-thirds vote.” ment; a disapproval authorized by the Constitution, Const., art. 6, § 1.

and which (in the particular instance) it is presumably What is a two-thirds vote is the question in this the constitutional duty of that department to express. case? The same or similar language is found in other These remarks apply with equal force to the legislaparts of the Constitution. By a "two-thirds vote" tive approval of items of an appropriation bill, and of the Legislature may increase the number of associate orders and resolutions objected to by the governor, justices of the Supreme Court (article 6, § 2); may pro- | under sections 11 and 12, art. 4.

ON rule tou show.cause. Motion for allowance of set

from these and other obvious considerations, which Ramsey Co. v. Heenan, 2 Mimn. 330; Gil. 281, and we will not take time to specify, it is apparent that all State v. City of Hastings, 24 Minn. 78, and upon this this legislation requiring the sanction of a two-thirds point we accordingly declined to hear argument. vote is of an extraordinary character, and hence it is Let a writ of prohibition absolute issue as prayed reasonable to expect that if any distinction were to be for. made by the Constitution between it and ordinary legislation, it would be by surrounding it with extraordinary precaution, rather than the contrary. We ATTORNEY'S LIEN ON JUDGMENT-RIGHT OF entertain no doubt therefore that it is the intent of

SET-OFF the Constitution that the passage of these extraordinary measures shall require a vote larger than a ma- NEW JERSEY SUPREME COURT, JUNE TERM, 1882. * jority of each house, of all the members thereof. It follows that the two-thirds vote cannot be a mere two

TERNEY V. WILSON.* thirds of a quorum, i. l., of a majority. Any such construction would lead to absurd consequences; and

An agreement between an attorney and his client that the at

torney shall have a lien upon a certain judgment to be reamong others, the result that a bill could be passed

covered for a specified sum, as compensation for his after a veto by a vote less than is required to pass it

services, constitutes a valid equitable assignment of the before a veto.

judgment pro tanto which'attaches to the judgment as A two-thirds vote must mean either a vote of two- soon as entered. thirds of a quorum, i. e., of a majority of each house The equity of the assignee under such an nssignment is supe(as we have seen that it does not), or a vote in each rior to the claim of the judgment debtor to set off against house of two-thirds of all the members thereof. There

the judgment, a judgment against the plaintiff which he, is no middle ground-no stopping place-between

the debtor, had purchased after the entry of the judg

ment against himself and before he had notice of the asthese two constructions. There is no authority what

signment. ever for saying that by a two-thirds vote is meant two

A failure to give to the debtor notice of the assignment of the thirds of the members present, provided such two- debt will not subject the assignee to merely equitable thirds is a majority of all the members of the branch. claims of the debtor, which do not attach to the debt itThis construction would lead to the consequence that self and which accrue to him after the assignment. one of the extraordinary measures of which we have N spoken might be passed by the same vote by which any

off of judgment. law could be passed; that is to say a bare majority of all the members could pass it. Neither is there any

B. A. Vail, for motion. authority for saying that by a two-thirds vote is meant E. S. Savage and G. W. Miller, contra. the vote of two-thirds of the members present, pro

Dixon, J. On November 8, 1882, the plaintiff revided such two-thirds exceeds a majority of all the

covered a judgment in this court against the defendmembers of the branch. Any such construction is purely arbitrary. There is no better warrant for_say. Esq., was the plaintiff's attorney and counsel, and

ant for $1,122.53, damages and costs. E. 8. Savage, ing that a number of votes exceeding a majority by while the suit was pending, the plaintiff being unable one is sufficient, provided it is two-thirds of all the

to compensate Mr. Savage for his services, it was members present, than there is for requiring such

agreed between them that if Mr. Savage would attend number to exceed a majority by two or ten or by any

to the prosecution of the cause, and would defend the other number of votes less than is necessary to em

plaintiff in some other litigation with the defendant, brace all the members of the branch.

and would defend the plaintiff's brother upon trial In our judgment the substance of the whole matter

of an indictment wbich had been found against him, is that as respects the passing of laws, the Constitution

then he, Mr. Savage, should have a lien for the comrecognizes two votes only-a majority vote and a twothirds vote--the latter greater than the former; and pensation due him

upon the judgment which might be

recovered in the suit. Shortly before the entry of the as the former is a vote in each house of a majority of all judgment, Mr. Savage's services having been then all the members thereof, so by a natural, and as it seems

substantially rendered, he and the plaintiff agreed upto us, an inevitable construction, the latter is a vote

on $865 as a fair and just compensation therefor. in each house of two-thirds of all the members thereof.

On April 17, 1873, one John H. Campbell recovered a From this it follows that the act establishing the municipal court of Moorhead (chapter 10, Special Laws judgment in the Middlesex Circuit Court for $612.08

damages and costs, against this plaintiff and another. 1883), having received upon its final passage in the

On November 14, 1882, Campbell's administratrix asHouse of Representatives only fifty-three votes out of

signed this judgment to the present defendant, who, an entire membership of 103, was not passed by a two

on November 15, 1882, caused it to be docketed in this thirds vote as required by the Constitution, and it is

court. therefore void.

This defendant now moves to have the Campbell We have examined all the cases and other authori. ties claimed by counsel to be opposed to the conclusion judgment set off against the plaintiff's judgment. Mr. to which we have arrived, but we think that none of remaining after deducting his claim for $865 and the

Savage opposes this motion, except as to the surplus the Constitutions to which they relate required (as taxed costs. does ours) a majority vote of all the members elect to

The right to set off one judgment against another is pass a law. This is in our opinion a decisive distinction. We have not adverted to the provisions of the

a purely equitable one to be administered in all cases

upon such terms as will promote substantial jastice. Constitution requiring a two-thirds vote to expel a

Brown v. Hendrickson, 10 Vroom, 239. It of course member (art. 4, § 47), or to that which requires the

cannot attach until the party seeking the set-off has rote of "two thirds of the house" to suspend the rule that every bill shall be read on three different days debtor of the person against whom it is sought. Id.

become both a judgment creditor and a judgment article 4, S 20); for whatever they may mean, the pro

In the present case it could not arise until November vision requiring a majority of all the elected members

14, 1882, when the Campbell judgment was assigned to to pass a law does not appear to apply to them. The

the defendant. While that judgment was due to authority of of this court to resort to the journals of

Campbell, there could be no right to set it off against the Legislature in order to ascertain whether a law has been constitutionally passed, is settled by Sup'rs *To appear in 16 Vroom's (45 N. J. Law) Reports.

the judgment which the defendant owed. The ques- and among the claims which do not attach to the tion for decision then is, what right of set-off in equity debt, but are only collateral, is a claim of set-off. accrued to the defendant on Norember 14, 1882? Aud When the assignment transfers the legal title to the the first step toward an answer will be taken in de- debt, it has usuall- been considered that an equity of termining what equitable right Mr. Savage had before the debtor, in order to be protected against the asacquired in the judgment of November 8th.

signee, must both inhere in the debt and have beThe agreement made between the plaintiff and Mr. longed to the debtor before the assignment was made. Savage created a debt from client to counsel, valid Hence it was decided in Burrough v. Moss, 10 B. & C. both in law and equity, Hopper v. Ludlum, 12 Vroom, 558; Oulds v. Harrison, 10 Exch. 572, and Cumberland 182, and constituted an equitable assignment to the Bank v. Hann, 3 Harr. 222, that a bill or note in the latter of so much of the judgment as was needed to hauds of an indorsee after maturity is not subject to pay his debt, which assignment attached to the judg- the set-off of a debt due from the indorser to the ment as soon as it was entered November 8. The maker at the time of the indorsement, such claim of principle that an agreement between debtor and set-off not being an equity attaching to the chose ascreditor that the creditor shall have a claim upon a signed. The case of Sargent v. Southgate, 5 Pick, 312, specific fund for payment of his debt, will operate as a is to the contrary effect, but it seems to be in conflict binding equitable assignment of the fund pro tanto, with the earlier case in the same State, of Holland v. was distinctly asserted by Lord Hardwicke as early as Makepeace, 8 Mass. 418, and has not received general Row v. Dawson, 1 Ves. Sr. 331, and was declared to be adoption in other States. It rests upon the idea that clearly deducible from all the pertinent cases, a the title by such an indorsement should be treated as century later, by Lord Truro in Rodick v. Gandell, 1 equitable rather than legal, and so subject to the DeG., M. & G. 763. It has been recognized in this equitable right of set-off then existing in the maker. State, Bower v. Haddon Blue Stone Co., 3 Stew. Eq. But in Baxter v. Little, 6 Metc. 7, the same court er. 171, affirmed sub nom. Lyon v. Bower, 3 id. 310, plicitly refused to extend the right of set-off to claims

and is a settled rule in equity. It embraces contracts acquired by the maker against the indorser after the • between counsel and client for payment of the former indorsement, but before notice of it. An assignee

out of the judgment to be recovered. Ely v. Cooke, 28 under the bankruptcy and insolvency acts is regarded, N.Y. 365; Witliams v. Ingersoll, 89 id. 508. Sometimes it for many purposes, as an equitable power only, and has been held that the principle should not be applied hence the debtors of a bankrupt or insolvent may set to agreements of the character just mentioned, because off against their notes which have passed to the asthey are champertous, but as the English law against siguee such claims as they held against the assignor at champerty is repudiated in New Jersey, Schomp v. the time of the assigument. Receivers, etc., 4. PaterSchenck, 11 Vroom, 195, this element is not here ob- son Gaslight Co., 3 Zab. 283. But they cannot so setjectionable. Occasionally also it has been said that if off claims which they have subsequently acquired, the assignment embraced only part of a debt, it was even though such claims arise by their paying debts of not obligatory upon the debtor without his assent, the the bankrupt or insolvent for which they were response reason being that his single obligation could not thus sible when the assignment was made. Ex parte Hale, 3 be split up into several unless he consented. This Ves. Jr. 304; Chance v. Isaacs, 5 Paige, 592. Iu Coster reason however controls only legal rights and reme- v. Griswold, 4 Edw. Ch. 364, the rule that a bona fide dies, and Chancellor Green, in Superintendent v. Heath, assiguee of choses in action should be protected against 2 McCarter 22, has well observed upon it that "it has equities accruing to the debtor after the assignment no application whatever to an equitable assigument was applied in favor of the assiguee of bonds and sought to be enforced in a court of equity against a even against equities of the obligor growing out of the fund in the hands of the debtor.” The right of a par- transaction in which the bouds had been given. To tial assignee was explicitly supported in Lett v. Morris, the same effect are Cornish v. Bryan, 2 Stockt. 146, and 4 Sim. 607, and Bower v. Hadden Blue Stone Co., ubi Bush v. Cushman, 12 C. E. Green, 131. In Beckwith v. supra.

Union Bank, 9 N. Y. 211, it was applied in favor of As we therefore are called upon in this case to exer- the assignee of a bank account against the bank claim. cise a purely equitable power, we must do so in re- ing to set off a note indorsed by the assignor, which cognition of the right of Mr. Savage as assignee pro they held at the time of the assigument, but which tanto of the plaintiff's judgment from the moment of matured and was charged up after that event and beits entry. Until November 14, these rights were un- fore notice of it. questionably valid against the defeudant, and if be- Of similar purport have been the decisions concernfore that date they had been notified to him, it would ing the setting off of judgments. In Gay v. Gay, 10 certainly have been beyond his power to impair them. Paige, 369, Chancellor Walworth said: “The right to But such notice not having been given, the defendant set off one judgment or decree against another only on the day mentioned, purchased the judgment against exists in those cases where the debts on both sides the plaintiff for the purpose of doing what, if the facts have been finally liquidated by judgment or decree, had been as he supposed, he would have had a perfect before the assignment of either to a third party.” In right to do, setting off one judgment against the other; Hackett v. Connett, 2 Edw. Ch. 73; Graves v. Woodand the next question therefore is whether this act bury, 4 Hill, 559; Spencer v. Barber, 5 id. 568, and gives him in equity a claim superior to that of the as- Roberts v. Carter, 38 N. Y. 107, the courts refused to signee.

set off judgments and decrees, on the ground that a The exact status of the parties concerned in an as- prior assignment of one of the claims had prevented signment of a chose in action before notice to the the right of set-off from attaching. In Graves 5. debtor, will be found on examination to be the sub- Woodbury, Judge Cowen, referring to the point of ject of much diversity of judicial opinion. But I notice to the debtor that the claim against think courts are in substantial accord to an extent him had been assigned, says: "The only object of sufficient for the decision of the question presented in such a notice is to put the debtor on his guard against the case before us.

dealing with the assignor, or perhaps obtaining other A failure to give to the debtor notice of the assign- demands against him, in the belief that he still conment will not subject the assignee to merely equitable tinues the equitable owner." I have not found any claims of the debtor which do not attach to the debt case where this “ perhaps" of the learned judge has itself and which accrue to him after the assignment; developed into anything more than a conjecture.

The cases of Chamberlin v. Day, 3 Cow. 353, and quired to file with the Secretary of State a certificate Brown v. Hendrickson, 10 Vroom, 239, are authorities in which shall be stated the time when their official for the position that the rights of an equitable as- terms will expire, whether “by effluxion of a full term signee of a judgment attach before notice of the assign- or by reason of disability of age." The officers named ment is given to the debtor.

in this statute are those for whose election the SecreHence in the present case, I think the conclusion is tary of State is required by law to give notice. A juswarranted that the equitable right which Mr. Savage tice of the peace is not one of such officers, and is aequired in the judgment against the defendant as therefore not named in the statute. We do not obtain soon as it was entered was not impaired by any sub- from this statute therefore the opinion of the Legissequent equity accruing to the defendant by his pur- lature as to the application of the provision to the class chase of the judgment against the plaintiff. Between of officers we are considering. But we do have howthe two equities the maxim, “ Qui prior est in tempore ever contemporary legislative construction to this efpotior est in jure," establishes the superiority of the fect—that the language of the Constitution is not to former.

be limited to its immediate context, but is to be given The defendant's set-off must therefore be limited to a broad and comprehensive meaning. so much of the plaintiff's judgment as remains after Giving to the language used therefore its broad, satisfying Mr. Savage's claim. As to the amount of general meaning, the question whether this provision this claim, I think it is $865 only, with interest, and applies or not to justices of the peace depends on the not that sum and the taxed costs besides. Mr. Savage, fact whether such officers were “justices of a court” in his evidence, says that $865 was agreed on between within the meaning of that term, as used in the Conhimself and the plaintiff as his compensation for all stitution. services rendered and money expended by him in and Provision is made by section 18, for the election of about the several litigations, and therefore if that sum justices of the peace in the towns and cities of the be paid, I think he has no claim, legal or equitable, to State. Provision is also made in this section for the the taxed costs.

removal of “justices of the peace and judges and jusThe defendant's motion for set-off will be allowed tices of inferior courts not of record.” It would seem to the extent indicated. The entire claim of neither from this expression as if a distinction was made beparty being wholly supported, each must pay his tween "justices of the peace” and “justices of inown costs.

ferior courts," but reading this provision in connec

tion with section 19, I think the expression “judges JUSTICE OF PEACE CANNOT ACT AFTER

and justices of inferior courts" has reference to the SEVENTY.

officers provided for in the latter section.

There are throughout the cities and villages of the NEW YORK SUPREME COURT, ORANGE SPECIAL State a number of local courts of civil and criminal TERM, JANUARY, 1884.

jurisdiction, whose judges or justices are elected un

der special statutes, and who would not come within PEOPLE EX REL. LAWRENCE V. MANN.

the general designation of justices of the peace, but do come within the designation of justices of inferior

courts. The office of justice of the peace has existed prohibition against Mann's acting as justice of since the formation of the State government, aud in peace in suit against relator, on ground he is over

the year 1824 “courts of justices of the peace seventy.

established by the Legislature. Chap. 236, Laws of Mr. Ely, et al., for relator.


It was therein provided that "every such justice is Mr. Millard, for respondent.

hereby authorized to hold a court for the trial of all BROWN, J. Elias Mann was elected a justice of the such actions, * * * and is hereby vested with all peace of the town of Greenburgh, Westchester county, such powers for the purposes aforesaid, as is usual in for a term of four years, commencing January 1, 1884. courts of record in this State.” This provision has reHe was 70 years of age on the 11th day of July, 1881. mained a part of the law of the State ever since its The question presented in this proceeding is : “Was he enactment. It is embodied in the Revised Statutes of elegible to the office?.

1830 and in the Code of 1849, under titles designated Section 13, article 6, of the Constitution provides for courts held by justices of the peace" and is subthe manner of choosing justices of the Supreme Court stantially re-evacted in the Code of Civil Procedure. and judges mentioned in section 12, viz., Judges of Section 3. the Superior Court of New York, the Superior Court The statutes of the State at the time of the adoption of Buffalo, the Court of Common Pleas of New York of the Constitution, further provided for “special and the City Court of Brooklyn. It then provides that justices' courts," such as “the justices' court of the the term of office of " said justices and judges" shall city of Albany” and “the justices' court of the city be fourteen years. Then follows the provision that of Hudson." "A justices' court” or “a court of jus* no person shall hold the office of justice or judge of tices of the peace" therefore existed as one of the any court longer than until and including the last day courts of the State in the different towns and cities of December next after he shall be seventy years of throughout the State at the time of the adoption of

the Constitution, and the expression in the ConstituIt is clear, I think, that in construing this provision, tion “justices of a court" must be held, I think, to init is not to be restricted to the immediate context, for clude the justices of such courts. It is certainly broad if such construction be adopted it would not apply to enough to include them, and as we have seen the the judges of the Court of Appeals.

judicial and legislative construction given to this proMoreover in the cases of People v. Gardner, 45 N. Y. vision is that it is not to be restricted to the officers 812, and People v. Brundage, 78 id. 403, the Court of named in the immediate context, we can adopt no Appeals held that the restriction applied to county other interpretation, except to give it its broad meanjudges who are not named in immediate connectioning and include within it all officers that come within with this provision. In the latter case much stress is the general designation used. In People v. Gardner, laid upon the legislative construction with this pro- Folger, J., says: “It is palpable that the intention of vision given it by chapter 86, laws 1870.

the convention was to place this limit of age upou the By that statute the judges therein named are re- comparatively very extended term which they adopted,



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