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be invested with office, would seem to be synonymous. Editor of the Albany Law Journal :

Common sense would seem to say that when a person

is elected to an office, he must be in a legal position to In the report of Mr. John G. Milburn's scholarly ad

be invested with the office when his actual term bedress before the New York State Bar Association, gins, and when invested he'is invested with all that apprinted in your issue of January 19th last, he says, pertains to the office; and so when his actual term speaking of the New York Code of Procedure: “It

commences all the duties of the office begin, and there entirely lacks the flexibility which rules would have, is nothing in the amendment inconsistent with this and which must pervade procedure if it is not to be an view. Hence I cannot perceive how a person elected unwarranted and illogical obstruction. The condi- judge can be judge enough to draw his salary from tion of things which prevails in other States may be January to June(and be would be entitled to it if he is a subjected to the same or equally valid criticism on judge de jure during this time), and not judge enough other grounds. Nowhere in this country, that I know to perform judicial duties. Then if these judges' of, is there a consistent effort being made to mould the actual terms begin on the first of January and they existing system of practice to the true theory of the are prohibited from performing judicial duties until office of procedure. England alone, so far as my June, their successors would follow in the same line, knowledge extends, has seen the true course and and there would be an interval from January to June taken steps to follow it."

where we would have judges only to draw salaries. Mr. Milburn could not have examined the so-called The language of the amendment may be unfortunate, Practice Act of this State, passed in 1879, when he pre- but it is not necessary to put an inconsistent construcpared his address. It embodies all the essential tion upon it unless the language will admit of no other. features of the reformed Procedure, and covers only But that amendment does not say that a person can nine pages. The details of practice are, as they should be a judge or a judge de jure before be is invested or be, left to the judges, who are given power to make all clothed with office; nor does it say that his duties such orders and rules as may be necessary and proper shall be suspended before they commence. The only to give full effect to the provisions of the act. The difficulty in construing this amendment would seem same course was pursued in England. Connecticut is

to be as to when the first elected judges' terms under the only State, I believe, that has adopted the very this amendment expire. It may be held that they eximportant provision found in the Judicature Acts, pire fourteen years from June next, but it would seem that wherever there is any variance between the rules to be more in harmony with other provisions of the of equity and the rules of common law with reference Constitution to say that they expire thirteen years and to the same matter, the rules of equity shall prevail. five months from June next. The intention being Yours truly,

that the first judges' actual terms elected under the

JOHNSON T. PLATT. amendment should be for a less period than the reguNew HAVEN, CONN., Jan. 29, 1884.

lar term. The first judge's (terms elected under the Constitution of 1846 (article 14, section 4,) were for a

longer period than the regular term, being eight years THE NEW JUDGES—WHEN DO THEY TAKE OFFICE?

and six months. But however it may be held as to

when these judges' terms expire, my point is that they Editor of the Albany Law Journal:

are in no sense partially or fully judges, but only Permit me to take issue with your correspondent D., judges elect, until the first Monday in June next.

J. K. who endeavors to sbow in his article in the JOURNAL of January 26, that these recent elected judges became

ROCHESTER, Jan. 28, 1884. judges de jure on the first day of January. He says that they are to-day justices of the Supreme Court, and incompetent to practice law, but are not authorized to discharge judicial functions until June next.

NEW BOOKS AND NEW EDITIONS. Now constitutions and laws are intended and supposed to be founded on good common sense and should LAWSON'S EXPERT AND OPINION EVIDENCE. be construed on that theory when it can be done

The Law of Expert and Opinion Evidence reduced to rules. without doing violence to the language. These judges With illustrations from adjudged cases. By John D.Lawson, were elected under the amendment to article 6 of author of " Words and Phrases," " Usages and Customs," the Constitution. Of course, bad this admendment etc. St. Louis: F. H. Thomas and Co. 1883. Pp. lxxii simply provided for the election of an additional num

and 595. ber of judges, there would be no question but that The plan or method of treating a subject adopted in they would be invested and their terms commence on this work is povel. A principle is stated in the shape the first of January. But the amendment says they of a rule; then follow one or more illustrations taken shall be invested with their offices on the first Monday from reported cases set forth in a narrative form, then in Jane next after their election. This, if it means the reasoning of the opinions in the cases chosen. any thing, means that they cannot be invested with While this plan may not strike the reader favorably office before that time, and D. has not explained how at first, he will upon further examination see that it a person could be a judge before he is invested and possesses certain merits. First among these is that clothed with the office of a judge; nor has he told us what the author believes to be established law upon a how the actual time of a judge can commence before specified point is briefly and certainly announced. It he is in a legal position to be invested with the office. is a fault among elementary writers, from which some Had the language of the amendment been, the terms eminent names are not free, to talk about a doctrine of the judges so elected shall commence, instead of without exactly saying what it is. This is due often. "the judges so elected shall be invested with their times no doubt, to the circumstance that there have offices," there would be no question as to the time been different rulings leaving the matter so unsettled when they would be judges, and I can see no difference as to justify a suspension of judgment on the part of between the time when an elected judge's actual term one who cannot speak with judicial authority, but we begins and the time when he may be invested with of- fear it most frequently results from a fear of criticism fice. The words, so far as time is affected, commence- by those who may dissent from the conclusion reached. ment of one's term of office, and the time when he may The duty however of one who attempts a treatise is


something more than to merely state the pros and cons est the younger members of the profession. The book in regard to a vexed question. He should clearly in- is well printed and bound. dicate what in his judgment is the correct principle. In most instances he will be sanctioned by subsequent CURWEN ON ABSTRACTS OF TITLE. Second Edition. authority, and when he is not, his error will not be counted in estimating the value of what he has done. A Manual upon the Searching of Records and the Prepa

Second, the statement of a doctrine in the form ration of Abstracts of Title to Real Property ; illustrated of a rule prefaced to and independent of the reason

by references to the statutes of Alabama, Colorado, Geor

gia, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, ing or authority by which it is supported and the il

Minnesota, Nebraska, New York, Ohio, Pennsylvania, lustration by which it is explained, very materially

Tennessee and Wisconsin. By Maskell E. Curwen. Reaids the reader both in investigating and in remember

vised, enlarged and edited with forms and references to ing. The entire results of more than five hundred decisons. By W. H. Whittaker, Cincinnati: Robert Clarke pages of matter are here exhibited in less than twenty & Co., 1883. Pp. x and 264. pages of rules, and one who makes himself familiar

This book is one of more than ordinary utility and with these rules is master of the book. The plan has should be consulted by all who have occasion to exlong been followed in school books and has

amine as to title to land. While it is not as full upon with unqualified approval among instructors and its particular subject as such a treatise ought to be, learners. In a few law books only has it been adopted it contains many valuable hints that will materially -Stephens on Evidence being the one best known aid the one consulting it, who as a rule will be posted among these and its extensive sale iudicating the opin

as to the local law relating to the transfer of real propion of the profession in respect to the plan.

erty. While the recording acts in this country bare, As to its general merits, apart from its methods of

to a considerable extent, rendered it easy to ascertain treatment, the work impresses us very favorably. It

the title to land, the preparation of a reliable abstract embraces but a single department in the law of evi

is by no means to be trusted to inexperienced hands. dence, but an important and growing one, and this it

And every one is liable to forget some essential duty covers thoroughly. In some respects we might suggest which this treatise will very likely remind him of. changes such as the elevation of a sub-rule or two to

The mechanical execution of the book is fair. the dignity of a rule and vice versa, but otherwise we cannot say in what way the author could have bettered what he has done. Every lawyer who tries cases has

NOTES. frequent occasion to examine the law as to expert evi. dence, and we believe he will more likely find what it is here than in any work yet published. The conclu

N Burk v. Burk, 21 W. Va. 445, the court say: sions reacbed by the author may not in all instances be “This will be the first reported divorce case in approved, but he has some authority for every state

this State. We would gladly wish that it might be ment made, and in those instances where the courts the last."- We have been for many years making a now differ it is more than probable that the opinions collection of queer names from the law reports, and of an ivtelligent elementary writer will hereafter be one of these days we shall print it. But we now antiaccepted and followed. The book is as to printing, cipate by announcing that we have found the queerest binding, etc., all that could be desired.

C. name of all, aud hasten to put it before our readers

Napoleon K. Oyster. This occurs in a recent divorce

case of Oyster v. Oyster- bi-valves who could not lire GUERNSEY ON THE LAW OF SUICIDE.

together in peace.- -A distinguished and witty lawSuicide : History of the Penal Laws relating to it, in their yer having recently been discomfited on an argument

legal, social, moral and religious aspects, in ancient before au appellate bench, some members of which are and modern times. By R. S. Guernsey of


accused of speculating in stocks, exclaimed as he left New York Bar, Read before

New York

the court-room, “I'll never argue another cause before Medico-Legal Society, September 23, 1875. Revised and

this court until there is a bull market."-Iu State v. enlarged. New York: L. K. Strouse & Co., 1883. Pp. 46.

Anderson, 19 Mo. 245, Scott, J. says: “A child's teeth In the pages of this book will be found an interest- shall not be set on edge because its father has eaten ing resumé of the laws relating to suicide in ancient

sour grapes.” In this proverb he gives all his reasons and modern times together with pertinent suggestions for the ruling that on a trial for an attempt to comin respect to the province of legislation concerning the

mit rape, the character and occupation of the subject. That it is possible by law to prevent self parents of the prosecutrix are irrelevant.- The slaughter seems to be very generally believed by the New York Daily Register, speaking of the law-makers of every age; on what grounds we are not Cesnola case, remarks: “Our acute and witty prepared to say. To those who take an interest in the

contemporary the ALBANY LAW JOURNAL has matter we recommend this essay as not only contaiu- spoken disrespectfully of this case, but we are ining much valuable information, but as being very clined to wait for the end." The best wish we can readable.

form for our friend is that he may live till that end.

-The American Law Register for January contains REYNOLDS ON EVIDENCE.

a leading article on Contracts for benefit of third per. The Theory of the Law of Evidence as established in the sons, by John Houston Merrill, and the following

United States and of the conduct of the examination of cases in full: Munster v. Lamb (Eng. Ct. App.), on atwitnesses. By William Reynolds of the Baltimore Bar. torney's immunity for words on trial, with note by

Chicago, Ill. Callaghan and Co.: 1883. Pp. xvi and 180. George H. Earle, Jr.; Herrick v. Minneapolis, etc., R. This is intended as a sort of handy book upon the law Co. (Minn.), on conflict of laws-statute making emof evidence, and as such will undoubtedly be found ployer liable to employee for negligence of co-emuseful to both practitioners and students. The princi- ployee, with note by Marshall D. Ewell; Credit Co. v. pal rules of evidence are clearly stated, and references Arkansas Cent. R. Co. (U. Sa Circ., on receiver's cerfor authority are usually made to the larger text books.

tificates and railroad foreclosure, with note by AdelThe book on that account is not cumbered with cita-bert Hamilton; Zimmerman v. Devin (Mich.), on tions of cases or with the reasoning contained therein. agreement in restraint of trade, with note by Addisou The last three chapters treat of the conduct of the ex.

G. McKean.--Of ninety-uine recent applicants for amination of witnesses, a subject that will inter- admission to the English bar forty-six were rejected.


The Albany Law Journal.


It has been proposed by the corporation of London to establish a permanent court of arbitration

for the settlement of trade disputes in that city. ALBANY, FEBRUARY 16, 1884. The purpose is to be commended, but we doubt if

the success will be greater than has been that of a CURRENT TOPICS.

similar scheme that the Legislature of this State tried its hands upon some years since. The promi

nent advocates of the measure do not treat it so TOTWITHSTANDING the great amount of di

much as something that is to be of benefit to the plomatic correspondence and newspaper talk trade community as they do as something that may in reference to the extradition treaty between the perhaps injure the legal profession. According to United States and Great Britain, that treaty seems the Law Times, a Mr. Phillips, who bore a promito be the most incomplete of any existing one to nent part in the last debate, took a particularly unwhich this country is a party. Only a few days

complimentary view of the profession and its works. ago the trusted financial officer of a city of this He said that he knew “the whole bag of tricks. State having misapplied the funds intrusted to his A law office is started with one or two sheets of pacare took a journey to Canada. It was then dis- per and a little brains, and there you have the great covered that embezzlement was not included in the

law element which is under-rooting the country.” list of crimes wherefor a fugitive from justice can We presume the gentleman has had some experience be taken out of Canada, at least in this direction.

with the lawyers, pleasant or otherwise, for he would The treaty of 1842 names as extraditable crimes

not be able to give so nearly accurate a schedule of only these: Murder, assault with intent to commit the contents of a law office if he had not been there. murder, piracy, arson, robbery, forgery and the ut. He omits one essential, namely, ink, for without terance of forged paper. In the treaties with the this the paper and brains, and even the "bag of other great nations, embezzlement by public officers tricks,” would be without avail. But as the Law and, in some, embezzlement from private employers Times remarks we have little expectation that arbiare included. In the treaties with some of the tration will be so universally applied as to oust the lesser powers almost every felony is included, one jurisdiction of the courts of law in all commercial or more going so far as to embrace fraudulent bank- questions, still less of that result being accomplished ruptcy. A peculiarity in the treaties, perhaps not by the estimable body which at present rules the intended, is that the crimes authorizing extradition city of London. in each country are about in inverse proportion to the likelihood of the fugitive from here seeking that country, the convenient Canada and the com

There are several bills pending in Congress with paratively convenient England having but five, while

a fair prospect of passage having in view an abridgthe less accessible Peru has a score or so. If the

ment of the rights of owners of patents. Among unfortunate subject for extradition flies to the utter

these are two which propose to limit the recovery most parts of the earth he finds, as did Tweed, his

of costs by plaintiff to actions in which more than mistake. His safety is nearer home. If he has appro

twenty dollars damages are recovered; one providpriated trust funds and placed them out of the reach

ing that plaintiff shall not recover any costs in such of civil process, he may dwell in quiet just across

case, and the other providing that the defendant the border until such time as the treaty shall be

shall recover costs. Another bill limits the jurischanged or a new construction bring something he

diction of the Federal courts in patent cases to has done within its terms.

those involving over two hundred dollars. Still another abbreviates the life of a patent right. And another provides that a bona fide manufacturer, vendor

or user of a patented article shall not be liable for inTo what crimes International extradition should fringement until after written notice of the exisbe applicable, is a subject that has puzzled the tence of the patent has been served. It will be minds of writers on International law and diplo- seen that if any considerable part of the proposed mats ever since the duty and policy of surrendering legislation is adopted a patent right will be of comcriminals has been recognized. That our treaty paratively little value, for between the short time with England does not embrace enough, will proba- of exclusive right, the liability for costs, if small bly be conceded, but unless it be as to those of lar- damages are recovered, and the uncertainty of jusceny and embezzlement, it is not likely there would tice in local courts, the infringer will be safe from be an agreement as to what should be added. If a annoyance. We regret to see bills of the character man must flee his country to escape imprisonment, of most of these introduced, because they show a his exile is a punishment in most instances more popular feeling against the patent system, which, than adequate to the offense. And in many cases however produced, does not augur well for future prosecution especially here is to gratify private ends, progress in mechanical art, in this country at least. either of vindictiveness or of extortion, and it is The inventor, as a rule, has, under the most favorabest that the government should not be put to the ble legislation, a not very easy pathway. While trouble and expense of reclaiming a fugitive unless there is occasionally a great success, most efforts the public good demands it.

are failures, and were it not that every one who VOL. 29 - No. 7.

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money to avoid
threatened litigation
. We imagine IN Rep.


, an action under a statute, the defend

dabbles in that kind of business believes that he This led to further investigation which turned up holds a winning ticket, and will heed no advice to numerous forged orders, showing that the business the contrary, we should as it is have few new in- had been quite thriving. In some instances the ventions. There may be room for improvement in decree was the only paper prepared, but in mest the patent laws, but not much in the direction now cases the entire procedure of a divorce suit was being taken.

simulated. The modus operandi was this: One

A. sought a divorce from his wife. One of the To some extent those who have been benefited by conspirators prepared the proper papers for service. the existing patent laws are to blame for the popu- When a sufficient time had elapsed upon papers lar feeling against them. Persons having exclusive showing service, another appointed a referee who rights of value are apt to be looked upon with jeal- heard manufactured testimony, and made a report ousy by those less favored, and the wisest course is in favor of a decree which was, in form, duly to assert those rights to no greater exent than the granted by the court. Signatures and seals were law warrants. The reverse has been the plan forged as required. In such instances papers would adopted by many owners of patents. The provis- be filed in the clerk's office, and the records of the ion relating to reissuing patents, where it is desired court in Brooklyn show that many divorces have to correct à defect in the original issue, has been been thus obtained. The procedure was not in perverted, and reissues have been obtained embrac- each case the same, a variation being made to meet ing matters that were not within the scope of the the different residences of the parties

. It is probainvention first claimed, and for which there would ble that occasionally a genuine order was obtained, not have been a patent granted. Then, substan- but the fact that one day's search in the clerk's tially abandoned applications have been revived, office revealed over fifty forged orders indicates and patents procured upon devices that had already that these parties gave the judges very little gone into an extensive public use, after which those trouble. It also reveals the extent to which this using were called upon to pay exorbitant roy

business has been carried. alties. Besides this, patents of so doubtful validity that their owners dared not face a trial where that question could be passed upon, have been used to


IN McKue v. Klein, Texas Supreme Court, 1883, 17 that to the “driven-well” patent is to be charged very much of the disposition now manifested in ants induced the plaintiffs' husband to drink three Congress to curb the possibility of annoyance to pints of whiskey at one time for a wager. After those using in good faith and without notice a pat- drinking two pints, and while in such a state of inented article of intrinsically small value. The toxication as to have lost self-control, they prevailed “barbed-wire" and the “refrigerator” patents on him to drink the third pint, which caused his have also given trouble, but to a comparatively lim- death immediately. Held, that the consent of ited number, and their day is passed. We are in- deceased, by drinking the third pint, was a mere clined to think that if the bill providing that costs nullity by reason of his condition; that the defendshall not be allowed unless a recovery of dam- ants would have been liable to him, if death bad not ages for infringment exceeds twenty dollars were cnsued, and were liable to his family. The court adopted it would put an end to the petty claims and said: “The appellant's right of action in this case suits that have brought the patent laws into dis-depends upon whether or not the husband, had he credit and result benficially to not only innocent been injured by the acts of the appellees as set forth users. of patented articles but to patentees them in the petition, but not in such manner as to produce selves.

death, would have had a cause of action against the

defendant below. As a general principle, a man can The place where “divorces obtained without recover no damages for an injury received at the publicity” were manufactured has just been discov- hands of another with his own consent, unless it ered. It was in Brooklyn, a deputy in the Kings arises from some act which is in itself a breach of county clerk's office being the head and front of the the peace. For instance, it is said by Mr. Cooley business. This gentleman furnished court referee that a man cannot complain of a nuisance, the evidence, and decree so that those who employed creation of which he concurred in and countenanced.' him or one of his associates procured what they But if two men agreed to fight and one is injured, were after in most cases without the slightest sus

the law will not excuse on account of the consent picion of publicity. But a lady in Boston, against given to the assault. And ' an injury, even in sport, whom her husband had procured one of these de- would be an assault, if it went beyond what was crees, made inquiry in the Kings county clerk's admissible in sports of the sort, and was intentional.' office if everything was “ all straight and legal," Cooley on Torts, 163; Adams v. Waggoner, 33 Ind. when it was ascertained that while the document 531; Commonwealth v. Colberg, 119 Mass. 350; S.C., she possessed was in form correct, both the signa- 20 Am. Rep. 328. Much less can a man consent to ture of the clerk and the seal of county were forged. the taking of his own life, or to an injury which is

likely to result in his own death. But even in cases way for which the defendant is responsible or by the where no breach of the peace is involved, and the reason of the fact that the vicious character and act to which consent is given is matter of indifference conduct of the horse which the plaintiff was driving to public order, the maxim of volenti non fit injuria has contributed thereto, evidence of the character presupposes that the party is capable of giving as- and habits of the horse is admissible. Although the sent to his own injury. If he is divested of the power accident may have occurred even if the horse were of refusal by reason of total or partial want of mental vicious solely by the defect in the way, yet evidence faculty, the damage cannot be excused on the of the existence of a vice in the horse legitimately ground of consent given. A consent given by a bears upon the inquiry as to the cause of the acciperson in such condition is equivalent to no consent dent and is not irrelevant. Todd v. Rowley, 8 Allen, at all, more especially when his state of mind is 51; Maggi v. Cutts, 123 Mass. 535. While in Tuttle known to the party doing him the injury. If an infant v. Lawrence, 119 Mass. 276, the rejection of evidence of tender years, or an idiot, or a person non compos of the capacity of the horse for speed which the mentis from any cause, agrees to an act which he plaintiff was driving, when offered by defendant to cannot know will injure him, the person causing contradict statements elicited by him in crosshim to perform, or suffer the performance of, such examination, and not appearing to have had any act will be answerable for its consequences. It is necessary bearing upon the rate of the speed the just as if a person, without knowledge that a horse was travelling at the time of the accident, was poisonous or deleterious substance is contained in held not to furnish just ground of exception, it was an article of food offered him, swallows it at the so for the reason that it was deemed to be within the solicitation of another, who is aware of its noxious discretion of the presiding judge to limit the inquiry character; in such case of course the one who gives as to the speed which the horse was capable of the food is liable in damages for the injuries that going. It by no means follows from this decision follow. Commonwealth v. Stratton, 114 Mass. 303; that had the evidence thus offered been received its S.C., 19 Am. Rep. 550. And so if one whose mental admission would have furnished ground of excepfaculties are suspended by intoxication is induced tion. We have preferred to discuss this question to swallow spirituous liquors to such an extent as to although there is another reason arising from the endanger his life, the persons taking advantage of position of the case which is quite decisive against his condition of helplessness and mental darkness the excepting party. The plaintiff himself had and imposing the draught upon him must answer in testified against his objection, but without exception damages for the injury that ensues."

on his part that the horse could trot a mile in

three minutes. The evidence offered by defendant In Whitney v. Inhabitants of Leominster, Massa

was only confirmatory of this. If it was otherwise chusetts Supreme Court, October, 1883, 17 Rep. 153, incompetent, it simply tended to prove a fact which an action for injuries caused by a defect in the high- the plaintiff himself conceded and cannot have been way, the defense was want of due care in the plain-prejudicial to him.” tiff in driving at too great speed, on which there was conflicting testimony. Defendant was allowed

In Plummer v. Ossipee, to appear in 59 N. H., it to show that the horse had trotted a mile in three

was held that particular instances of careful and minutes. Held, that the evidence was competent, safe driving by the plaintiff's driver are competent as tending to show the horse's capacity for speed, to rebut the evidence of his character for unsafe and the reasonableness of the defendant's theory driving, shown by particular instances of that kind. that the horse had in fact been driven on other occasions at the rate of a mile in three minutes; In Missouri Pacific Ry. Co. v. Cornell, 30 Kans. 35, especially after the plaintiff had himself admitted an action for injury to an orchard by negligent the fact upon cross-examination. The court said : communication by fire, it appeared that the trees "The fact to be determined was undoubtedly the were heavily mulched with manure, and wrapped rate of speed at which the horse was driven at the with dry grass and corn stalks, by means of which time of the accident, but when the testimony the fire was communicated to the trees. Held, that showed a very high rate of speed, as bearing upon the question of contributory negligence was for the its reasonableness and probability, it was competent jury. The court said: “Whether a party is guilty to show that he had a great capacity for speed, even of negligence, or not, is a question of fact for the if it might also be true that he was not then driven jury, and not a question of law for the court to at his full speed. It would have been competent for decide, when the evidence tends to establish such the plaintiff to have shown in answer to defendant's negligence. In view of the evidence of the manner testimony that the horse was incapable of such a in which the trees in the orchard were wrapped, of rate as fifteen miles an hour, and that he could not the character of the mulching thrown around them, be driven or urged more than five miles an hour. and of the old grass and corn stalks left in the The evidence offered and received here was of the orchard, the question whether the plaintiff below same description, even if less conclusive. Where the was guilty of negligeece, or not, should have been evidence is conflicting as to whether an accident submitted to the jury. It is apparent from the has occurred entirely by reason of a defect in the findings, th at the jury returned the verdict against

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