been often quoted since and is conclusive in the Federal courts in regard to the validity of their own processes when collaterally assailed, as in the present

case.

The court, after discussing the nature of the jurisdiction in cases of attachment, their relation to suits in rem and in personam, in answer to the question, on what does the jurisdiction of the court in that class of cases depend? answers it thus: "It seems to us that the seizure of the property, or that which in this case is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in a proceeding purely in rem. Without this the court can proceed no further; with it the court can proceed to subject that property to the demand of plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied upon property liable to the attachment, when such writ is returned into the court the power of the court over the res is established. The affidavit is the preliminary to issuing the writ. It may be a defective affidavit, or possibly the officer whose duty it is to issue the writ may have failed in some manner to observe all the requisite formalities, but the writ being issued and levied, the affidavit has served its purpose, and though a revising court might see in some such departure from the strict direction of the statute sufficient error to reverse the judgment, we are unable to see how that can deprive the court of the jurisdiction acquired by the writ levied upon the defendant's property." See Voorhies v. Bank of United States, 10 Pet. 449; Grignon v. Astor, 2 How. 319.

If in a case where the title to land is to be divested by a proceeding in which its owner is not within the jurisdiction, and is never served with process nor makes any appearance, the writ on which the whole matter depends is held valid, though there be no sufficient affidavit to support it, how much more should the writ be held to protect the officer in a case where the defendant is in court and makes no objection to it, nor seeks to set aside or correct it, and where the court before it issues the writ has jurisdiction of the parties to the suit?

We think that when the writ is offered in a collateral suit against the officer who executed it as evidence of the authority of the court to command him to attach the property of defendant in that suit, it is not roid, though it might be avoided on a proper proceeding, and in the contest for the value of the goods seized with a stranger who claims them it is sufficient to raise the issue of the liability of those goods to the exigency of the writ.

The judgment of the Supreme Court of Michigan is reversed, with directions for further proceedings in conformity to this opinion.

street in the borough of Susquehanna, and hurt her knee. The ditch had been dug to conduct water pipes to the premises of defendant below, who had previously obtained a license from the town council authorizing such digging. The work was done by a contractor who was to receive a specified sum for the job, and over whose manner of doing the work defendant had no control. The negligence in leaving the ditch open was that by the contractor. The verdict and judgment below was for plaintiff, and defendant took a writ of error.

GORDON, J. This case presents two main questions for our consideration and resolution, and these being determined, all others raised by the assignments may be passed as of minor consequence. Was the digging of the ditch in the public street of the borough of Susquehanna a nuisance per se? If not; if it was such a necessary work as was properly licensable by the borough council, then as the second question, was the defendant chargeable with the negligence of his contractor who had charge of the work? It is certainly true, that if the premise assumed by the court below be correct, the conclusion adopted by it follows as a matter of course. If the ditch dug for and at the instance of Dr. Smith was a public nuisance, then he and all engaged in sinking it were responsible for all damages resulting from it, and the doctrine of respondeat superior is out of the case. But we do not think it was per se a nuisance-such a work that the borough council had no power to permit. This ditch was dug for the purpose laying a pipe for the conveyance of water from a spring to one of the defendant's houses on Willow street. Water is one of those prime necessaries without which people cannot live, and the public streets of towns and cities have, from time immemorial, been used as a means for its production or conveyance. Formerly it was very common for the citizens of the various municipalities to sink wells for this purpose on the public thoroughfares, and this, as was said by Chief Justice Gibson, in Barter v. Commonwealth, 3 P. & W. 253, was by sufferance, and in subjection to the corporate franchise. In these days when water works are common to all the larger towns, pipes are laid in the streets from which the water supply is drawn both for public and private uses, and although the right thus to lay pipes is usually accorded to a corporation, it by no means follows that it might not be done by private persons acting under municipal authority.

Necessity, as was held in the case of Commonwealth v. Passmore, 1 S. & R. 217, justifies many actions which would otherwise be nuisances. No one has the right to throw wood or stones in the street at his pleasure, nevertheless as building is necessary, building materials may be laid therein for a reasonable time and in a convenient manner. So may a merchant occupy the street with his goods; in a like manner may the common highways be temporarily opened for the purpose of building vaults under them, or under like regulations, private drains may be connected with the common-sewers or gutters, or houses and other buildings with the streets by alleys, door-steps and the like. By such things as these and many others, which are justified by necessity or custom, may public highways be occupied temporarily or permanently, and it would be strange indeed, if in the face of all this array of precedents a private citizen, acting under municipal license, could not without committing a public nuisance lay a water pipe along a street to his house. Such strictness as this would, in some of our county villages, deprive the inhabitants of their water supply altogether, and would, in many other instances, seriously interfere with the business and comfort of our people.

From considerations of this kind we are compelled

to dissent from the ruling of the court below on this question of nuisance, and to hold, on the contrary, that the digging of the trench, complained of in this case, under the license of the borough council, was not such an act as of itself rendered the parties engaged in it guilty of a public wrong.

Having arrived at this conclusion, the question that next presents itself is that involving the responsibility of the defendant. If however the testimony of Jonas Florence, the contractor, it is to be believed, Dr. Smith was not his responsible superior. Florence undertook the whole job for the compensation of $25, and the defendant had nothing to do except furnish the pipe and the box in which it was to be inclosed. With Florence, in the execution of this contract, he could no more interfere than he could about a job in which he had no interest. He might advise, but the contractor could receive or reject that advice as he saw fit; he might put a fence around the ditch whilst in process of construction, and Florence might treat it as an obstruction and remove it. In other words, Dr. Smith could not control the execution of the contract. He was entitled to a finished job, but it was not his business to seee to or regulate the manner of its doing. The case is evidently governed by Harrison v. Collins, 5 Nor. 153, wherein it is said, by Mr. Justice Mercur: "If one renders service, in the course of an occupation, representing the will of the employer only as to the result of the work, and not as to the means by which it is accomplished, it is an independent employment." But certainly, in the case under consideration, Florence was the subordinate of defendant in nothing but the design, whilst in every thing which pertained to the execution of the work he was the chief and only director and executor, and it hence follows, that for his negligence the court ought not to have held the defendant responsible.

We therefore think without particularizing as to the assignments of error, the court should have instructed the jury, that if they believed the uncontradicted evidence on the part of the defendant, as to the character of his contract with Florence, the plaintiffs were not entitled to their verdict.

The judgment of the court below is reversed, and a new venire awarded.

MEANING OF CONSTITUTIONAL REQUIREMENT OF A TWO-THIRDS VOTE.

MINNESOTA SUPREME COURT, NOVEMBER 1, 1883. STATE OF MINNESOTA V. Gould. The Minnesota Constitution provides thus: "The judicial power, etc., shall be vested in a Supreme Court, etc., and such other courts inferior to the Supreme Court as the Legislature may establish by a two-thirds vote." Held, to mean a two-thirds vote of all the members of each house, and not a two-thirds vote of a quorum,

PETITION upon the relation of one Eastland for a

writ of prohibition against the defendant, forbidding him to act as justice of the municipal court of Moorhead, a court organized under a statute of Minnesota. Sufficient facts appear in the opinion.

BERRY, J. "The judicial power of the State shall be vested in a Supreme Court, District Courts, courts of probate, justices of the peace, and such other courts inferior to the Supreme Court as the Legislature may from time to time establish by a two-thirds vote." Const., art. 6, § 1.

What is a two-thirds vote is the question in this case? The same or similar language is found in other parts of the Constitution. By a "two-thirds vote" the Legislature may increase the number of associate justices of the Supreme Court (article 6, § 2); may pro

vide for the holding of terms of the Supreme Court in each judicial district (id.); and may pass a general banking law (Article 9, § 13). If upon re-consideration of a bill returned by the governor, “two-thirds of that house" in which it originated agree to pass it, it is to be sent to the other house, and if ap proved "by two-thirds" of that house it shall become a law. Article 4, § 11. If upon re-consideration of an appropriation bill, one or more items thereof objected to by the governor are "approved by two-thirds of the members elected to each house," the same shall become part of the law. Id. Orders, resolutions and votes requiring the concurrence of the two houses (except such as relate to their business or adjournment), if returned by the governor with objections, "shall be repassed by two-thirds of the members of the two houses." Article 6, § 12. "Whenever two-thirds of the members elected to each branch of the Legislature" shall think it necessary to call a constitutional convention, they shall recommend, etc. Article 14, § 2.

The Constitution also provides that a majority of each house shall constitute a quorum for the transaction of business (article 4, § 3), and that no law shall be passed unless voted for by a majority of all the members elected to each branch of the Legislature, and the vote entered upon the journal of each house. Id., § 13.

These are all the constitutional provisions that throw light directly upon the question in hand. They show: First, that while a majority of the members of each house constitute a quorum, no law, however unimportant, can be passed without the votes of a majority in each branch of the Legislature of all the members elected to that branch. This is the general rule of legislation prescribed by the Constitution.

In the second place it appears that there are certain particular subjects which are not left to the operation of this general rule. For this but one sensible reason can possibly be assigned. Certainly those subjects could not have been singled out from the mass because they were of less importance than those of ordinary legislation. The provisions for the creation of new courts, for the increase of the judges of the Supreme Court, and for making that court itinerant, are in effect provisions for changing the Constitution itself; that is to say, the Legislature is authorized to change the rule which the fundamental law specifically prescribes in the premises. Irrespective of this consideration, the establishment of new tribunals for the administration of justice, the increase of the number of judges of the highest court in the State, the place where that court should be held, and the question whether a policy which has been discarded in almost every other community, viz., that of making this court itinerant, shall be adopted here, are subjects which manifestly transcend in general and public importance those of ordinary legislation.

That a general banking law is for the most obvious yet weighty reasons one of extraordinary importance will not be questioned. In conformity with a practice which we believe to be of universal prevalence in this country, our Constitution has, for reasons of acknowledged wisdom, conferred the veto power upon the executive. The enactment of a law over a veto is an extraordinary exercise of legislative power. It overrides the official disapproval of the proposed law by one of the three grand departments of the government; a disapproval authorized by the Constitution, and which (in the particular instance) it is presumably the constitutional duty of that department to express. These remarks apply with equal force to the legislative approval of items of an appropriation bill, and of orders and resolutions objected to by the governor, under sections 11 and 12, art. 4.

From these and other obvious considerations, which we will not take time to specify, it is apparent that all this legislation requiring the sanction of a two-thirds vote is of an extraordinary character, and hence it is reasonable to expect that if any distinction were to be made by the Constitution between it and ordinary legislation, it would be by surrounding it with extraordinary precaution, rather than the contrary. We entertain no doubt therefore that it is the intent of the Constitution that the passage of these extraordinary measures shall require a vote larger than a majority of each house, of all the members thereof. It follows that the two-thirds vote cannot be a mere twothirds of a quorum, i. e., of a majority. Any such construction would lead to absurd consequences; and among others, the result that a bill could be passed after a veto by a vote less than is required to pass it before a veto.

A two-thirds vote must mean either a vote of twothirds of a quorum, i. e., of a majority of each house (as we have seen that it does not), or a vote in each house of two-thirds of all the members thereof. There is no middle ground-no stopping place-between these two constructions. There is no authority whatever for saying that by a two-thirds vote is meant twothirds of the members present, provided such twothirds is a majority of all the members of the branch. This construction would lead to the consequence that one of the extraordinary measures of which we have spoken might be passed by the same vote by which any law could be passed; that is to say a bare majority of all the members could pass it. Neither is there any authority for saying that by a two-thirds vote is meant the vote of two-thirds of the members present, provided such two-thirds exceeds a majority of all the members of the branch. Any such construction is purely arbitrary. There is no better warrant for saying that a number of votes exceeding a majority by one is sufficient, provided it is two-thirds of all the members present, than there is for requiring such number to exceed a majority by two or ten or by any other number of votes less than is necessary to embrace all the members of the branch.

In our judgment the substance of the whole matter is that as respects the passing of laws, the Constitution recognizes two votes only-a majority vote and a twothirds vote--the latter greater than the former; and as the former is a vote in each house of a majority of all the members thereof, so by a natural, and as it seems to us, an inevitable construction, the latter is a vote in each house of two-thirds of all the members thereof. From this it follows that the act establishing the municipal court of Moorhead (chapter 10, Special Laws 1883), having received upon its final passage in the House of Representatives only fifty-three votes out of an entire membership of 103, was not passed by a twothirds vote as required by the Constitution, and it is therefore void.

We have examined all the cases and other authorities claimed by counsel to be opposed to the conclusion to which we have arrived, but we think that none of the Constitutions to which they relate required (as does ours) a majority vote of all the members elect to pass a law. This is in our opinion a decisive distinction. We have not adverted to the provisions of the Constitution requiring a two-thirds vote to expel a member (art. 4, § 47), or to that which requires the rote of "two thirds of the house" to suspend the rule that every bill shall be read on three different days (article 4, § 20); for whatever they may mean, the provision requiring a majority of all the elected members to pass a law does not appear to apply to them. The authority of of this court to resort to the journals of the Legislature in order to ascertain whether a law has been constitutionally passed, is settled by Sup'rs

Ramsey Co. v. Heenan, 2 Minn. 330; Gil. 281, and State v. City of Hastings, 24 Minn. 78, and upon this point we accordingly declined to hear argument. Let a writ of prohibition absolute issue as prayed for.

ATTORNEY'S LIEN ON JUDGMENT-RIGHT OF SET-OFF

NEW JERSEY SUPREME COURT, JUNE TERM, 1883.*

TERNEY V. WILSON.*

An agreement between an attorney and his client that the attorney shall have a lien upon a certain judgment to be recovered for a specified sum, as compensation for his services, constitutes a valid equitable assignment of the judgment pro tanto which'attaches to the judgment as soon as entered.

The equity of the assignee under such an assignment is superior to the claim of the judgment debtor to set off against the judgment, a judgment against the plaintiff which he, the debtor, had purchased after the entry of the judgment against himself and before he had notice of the assignment.

A failure to give to the debtor notice of the assignment of the debt will not subject the assignee to merely equitable claims of the debtor, which do not attach to the debt itself and which accrue to him after the assignment. Motion for allowance of set

ON rule to show cause.

off of judgment.

B. A. Vail, for motion.

E. S. Savage and G. W. Miller, contra.

DIXON, J. On November 8, 1882, the plaintiff recovered a judgment in this court against the defendant for $1,122.53, damages and costs. E. S. Savage, Esq., was the plaintiff's attorney and counsel, and while the suit was pending, the plaintiff being unable to compensate Mr. Savage for his services, it was agreed between them that if Mr. Savage would attend to the prosecution of the cause, and would defend the plaintiff in some other litigation with the defendant, and would defend the plaintiff's brother upon trial of an indictment which had been found against him, then he, Mr. Savage, should have a lien for the compensation due him upon the judgment which might be recovered in the suit. Shortly before the entry of the judgment, Mr. Savage's services having been then all substantially rendered, he and the plaintiff agreed upon $865 as a fair and just compensation therefor.

On April 17, 1873, one John H. Campbell recovered a judgment in the Middlesex Circuit Court for $612.08 damages and costs, against this plaintiff and another. On November 14, 1882, Campbell's administratrix assigned this judgment to the present defendant, who, on November 15, 1882, caused it to be docketed in this court.

This defendant now moves to have the Campbell judgment set off against the plaintiff's judgment. Mr. Savage opposss this motion, except as to the surplus remaining after deducting his claim for $865 and the taxed costs.

The right to set off one judgment against another is a purely equitable one to be administered in all cases upon such terms as will promote substantial justice. Brown v. Hendrickson, 10 Vroom, 239. It of course cannot attach until the party seeking the set-off has become both a judgment creditor and a judgment debtor of the person against whom it is sought. Id. In the present case it could not arise until November 14, 1882, when the Campbell judgment was assigned to the defendant. While that judgment was due to Campbell, there could be no right to set it off against *To appear in 16 Vroom's (45 N. J. Law) Reports.

the judgment which the defendant owed. The question for decision then is, what right of set-off in equity accrued to the defendant on November 14, 1882? And the first step toward an answer will be taken in determining what equitable right Mr. Savage had before acquired in the judgment of November 8th.

The agreement made between the plaintiff and Mr. Savage created a debt from client to counsel, valid both in law and equity, Hopper v. Ludlum, 12 Vroom, 182, and constituted an equitable assignment to the latter of so much of the judgment as was needed to pay his debt, which assignment attached to the judgment as soon as it was entered November 8. The principle that an agreement between debtor and creditor that the creditor shall have a claim upon a specific fund for payment of his debt, will operate as a binding equitable assignment of the fund pro tanto, was distinctly asserted by Lord Hardwicke as early as Row v. Dawson, 1 Ves. Sr. 331, and was declared to be clearly deducible from all the pertinent cases, a century later, by Lord Truro in Rodick v. Gandell, 1 DeG., M. & G. 763. It has been recognized in this State, Bower v. Haddon Blue Stone Co., 3 Stew. Eq. 171, affirmed sub nom. Lyon v. Bower, 3 id. 340, and is a settled rule in equity. It embraces contracts between counsel and client for payment of the former out of the judgment to be recovered. Ely v. Cooke, 28 N. Y. 365; Williams v. Ingersoll, 89 id. 508. Sometimes it has been held that the principle should not be applied to agreements of the character just mentioned, because they are champertous, but as the English law against champerty is repudiated in New Jersey, Schomp v. Schenck, 11 Vroom, 195, this element is not here objectionable. Occasionally also it has been said that if the assignment embraced only part of a debt, it was not obligatory upon the debtor without his assent, the reason being that his single obligation could not thus be split up into several unless he consented. This reason however controls only legal rights and remedies, and Chancellor Green, in Superintendent v. Heath, 2 McCarter 22, has well observed upon it that "it has no application whatever to an equitable assignment sought to be enforced in a court of equity against a fund in the hands of the debtor." The right of a partial assignee was explicitly supported in Lett v. Morris, 4 Sim. 607, and Bower v. Hadden Blue Stone Co., ubi supra.

As we therefore are called upon in this case to exercise a purely equitable power, we must do so in recognition of the right of Mr. Savage as assignee pro tanto of the plaintiff's judgment from the moment of its entry. Until November 14, these rights were unquestionably valid against the defeudant, and if before that date they had been notified to him, it would certainly have been beyond his power to impair them. But such notice not having been given, the defendant on the day mentioned, purchased the judgment against the plaintiff for the purpose of doing what, if the facts had been as he supposed, he would have had a perfect right to do, setting off one judgment against the other; and the next question therefore is whether this act gives him in equity a claim superior to that of the assignee.

The exact status of the parties concerned in an assignment of a chose in action before notice to the debtor, will be found on examination to be the subject of much diversity of judicial opinion. But I think courts are in substantial accord to an extent sufficient for the decision of the question presented in the case before us.

A failure to give to the debtor notice of the assignment will not subject the assignee to merely equitable claims of the debtor which do not attach to the debt itself and which accrue to him after the assignment;

and among the claims which do not attach to the debt, but are only collateral, is a claim of set-off.

When the assignment transfers the legal title to the debt, it has usuall been considered that an equity of the debtor, in order to be protected against the assignee, must both inhere in the debt and have belonged to the debtor before the assignment was made. Hence it was decided in Burrough v. Moss, 10 B. & C. 558; Oulds v. Harrison, 10 Exch. 572, and Cumberland Bank v. Hann, 3 Harr. 222, that a bill or note in the hands of an indorsee after maturity is not subject to the set-off of a debt due from the indorser to the maker at the time of the indorsement, such claim of set-off not being an equity attaching to the chose assigned. The case of Sargent v. Southgate, 5 Pick. 312, is to the contrary effect, but it seems to be in conflict with the earlier case in the same State, of Holland v. Makepeace, 8 Mass. 418, and has not received general adoption in other States. It rests upon the idea that the title by such an indorsement should be treated as equitable rather than legal, and so subject to the equitable right of set-off then existing in the maker. But in Baxter v. Little, 6 Metc. 7, the same court explicitly refused to extend the right of set-off to claims acquired by the maker against the indorser after the indorsement, but before notice of it. An assignee under the bankruptcy and insolvency acts is regarded, for many purposes, as an equitable power only, and hence the debtors of a bankrupt or insolvent may set off against their notes which have passed to the assignee such claims as they held against the assignor at the time of the assignment. Receivers, etc., v. Paterson Gaslight Co., 3 Zab. 283. But they cannot so setoff claims which they have subsequently acquired, even though such claims arise by their paying debts of the bankrupt or insolvent for which they were responsible when the assignment was made. Ex parte Hale, 3 Ves. Jr. 304; Chance v. Isaacs, 5 Paige, 592. In Coster v. Griswold, 4 Edw. Ch. 364, the rule that a bona fide assignee of choses in action should be protected against equities accruing to the debtor after the assignment was applied in favor of the assiguee of bonds and even against equities of the obligor growing out of the transaction in which the bonds had been given. To the same effect are Cornish v. Bryan, 2 Stockt. 146, and Bush v. Cushman, 12 C. E. Green, 131. In Beckwith v. Union Bank, 9 N. Y. 211, it was applied in favor of the assignee of a bank account against the bank claiming to set off a note indorsed by the assignor, which they held at the time of the assignment, but which matured and was charged up after that event and before notice of it.

Of similar purport have been the decisions concerning the setting off of judgments. In Gay v. Gay, 10 Paige, 369, Chancellor Walworth said: "The right to set off one judgment or decree against another only exists in those cases where the debts on both sides have been finally liquidated by judgment or decree, before the assignment of either to a third party." In Hackett v. Connett, 2 Edw. Ch. 73; Graves v. Woodbury, 4 Hill, 559; Spencer v. Barber, 5 id. 568, and Roberts v. Carter, 38 N. Y. 107, the courts refused to set off judgments and decrees, on the ground that a prior assignment of one of the claims had prevented the right of set-off from attaching. In Graves v. Woodbury, Judge Cowen, referring to the point of notice to the debtor that the claim against him had been assigned, says: "The only object of such a notice is to put the debtor on his guard against dealing with the assignor, or perhaps obtaining other demands against him, in the belief that he still coutinues the equitable owner." I have not found any case where this "perhaps" of the learned judge has developed into anything more than a conjecture.

The cases of Chamberlin v. Day, 3 Cow. 353, and Brown v. Hendrickson, 10 Vroom, 239, are authorities for the position that the rights of an equitable assignee of a judgment attach before notice of the assignment is given to the debtor.

Hence in the present case, I think the conclusion is warranted that the equitable right which Mr. Savage acquired in the judgment against the defendant as soon as it was entered was not impaired by any subsequent equity accruing to the defendant by his purchase of the judgment against the plaintiff. Between the two equities the maxim, “Qui prior est in tempore potior est in jure," establishes the superiority of the former.

The defendant's set-off must therefore be limited to so much of the plaintiff's judgment as remains after satisfying Mr. Savage's claim. As to the amount of this claim, I think it is $865 only, with interest, and not that sum aud the taxed costs besides. Mr. Savage, in his evidence, says that $865 was agreed on between himself and the plaintiff as his compensation for all services rendered and money expended by him in and about the several litigations, and therefore if that sum be paid, I think he has no claim, legal or equitable, to the taxed costs.

The defendant's motion for set-off will be allowed to the extent indicated. The entire claim of neither party being wholly supported, each must pay his own costs.

Mr. Ely, et al., for relator.

Mr. Millard, for respondent.

BROWN, J. Elias Mann was elected a justice of the peace of the town of Greenburgh, Westchester county, for a term of four years, commencing January 1, 1884. He was 70 years of age on the 11th day of July, 1881. The question presented in this proceeding is: "Was he elegible to the office?".

Section 13, article 6, of the Constitution provides for the manner of choosing justices of the Supreme Court and judges mentioned in section 12, viz., Judges of the Superior Court of New York, the Superior Court of Buffalo, the Court of Common Pleas of New York and the City Court of Brooklyn. It then provides that the term of office of "said justices and judges" shall be fourteen years. Then follows the provision that "no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age."

It is clear, I think, that in construing this provision, it is not to be restricted to the immediate context, for if such construction be adopted it would not apply to the judges of the Court of Appeals.

Moreover in the cases of People v. Gardner, 45 N. Y. 812, and People v. Brundage, 78 id. 403, the Court of Appeals held that the restriction applied to county judges who are not named in immediate connection with this provision. In the latter case much stress is laid upon the legislative construction with this provision given it by chapter 86, laws 1870.

By that statute the judges therein named are re

quired to file with the Secretary of State a certificate in which shall be stated the time when their official terms will expire, whether "by effluxion of a full term or by reason of disability of age." The officers named in this statute are those for whose election the Secretary of State is required by law to give notice. A justice of the peace is not one of such officers, and is therefore not named in the statute. We do not obtain from this statute therefore the opinion of the Legislature as to the application of the provision to the class of officers we are considering. But we do have however contemporary legislative construction to this effect-that the language of the Constitution is not to be limited to its immediate context, but is to be given a broad and comprehensive meaning.

Giving to the language used therefore its broad, general meaning, the question whether this provision applies or not to justices of the peace depends on the fact whether such officers were "justices of a court" within the meaning of that term, as used in the Constitution.

Provision is made by section 18, for the election of justices of the peace in the towns and cities of the State. Provision is also made in this section for the removal of "justices of the peace and judges and justices of inferior courts not of record." It would seem from this expression as if a distinction was made between "justices of the peace" and "justices of inferior courts," but reading this provision in connection with section 19, I think the expression "judges and justices of inferior courts" has reference to the officers provided for in the latter section.

There are throughout the cities and villages of the State a number of local courts of civil and criminal jurisdiction, whose judges or justices are elected under special statutes, and who would not come within 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 since the formation of the State government, aud in the year 1824 "courts of justices of the peace" were established by the Legislature. Chap. 236, Laws of 1824.

It was therein provided that "every such justice is hereby authorized to hold a court for the trial of all such actions, * * * and is hereby vested with all such powers for the purposes aforesaid, as is usual in courts of record in this State." This provision has remained a part of the law of the State ever since its enactment. It is embodied in the Revised Statutes of 1830 and in the Code of 1849, under titles designated "courts held by justices of the peace" and is substantially re-enacted in the Code of Civil Procedure. Section 3.

The statutes of the State at the time of the adoption of the Constitution, further provided for "special justices' courts," such as "the justices' court of the city of Albany " and "the justices' court of the city of Hudson." "A justices' court" or "a court of justices of the peace" therefore existed as one of the courts of the State in the different towns and cities throughout the State at the time of the adoption of the Constitution, and the expression in the Constitution "justices of a court" must be held, I think, to include the justices of such courts. It is certainly broad enough to include them, and as we have seen the judicial and legislative construction given to this provision is that it is not to be restricted to the officers named in the immediate context, we can adopt no other interpretation, except to give it its broad meaning and include within it all officers that come within the general designation used. In People v. Gardner, Folger, J., says: "It is palpable that the intention of the convention was to place this limit of age upon the comparatively very extended term which they adopted,