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Now flush'd with manhood's vig'rous bloom,
That sheds a sweet aroma,
The weapon his diploma.
To be a famous teacher,
To be a noted preacher.
Among the many roads,
Can reach the blest abodes.
Is marked man's destination,
Secures the soul's salvation;
Tho' with the best intention,
No human tongue should mention, The risk so great of being wrong,
'Tis truly most appalling.
To seek some other calling.
Blackstone and Kent and Chitty,
Prosy and wise, and witty.
He masters ev'ry section,
His calling and election.
Is readily admitted,
His license thus permitted.
And outside bung his shingle,
With eye to business single.
Both bold and self reliant,
For he has found no client.
His manhood's roused, his soul on fire,
'Tis uot for gold or glory,
Tells her pathetic story.
And hardened men are weeping,
In such a worthy keeping.
The jury now retire,
The people all admire.
And soon are in their places,
Upon their glowing faces.
The people all are cheering,
And praises most endearing.
No waiting now for clients,
To tussle with the giants.
Is honored and respected,
He never is suspected.
Down to the present moment,
His busy brain is teeming,
He now is only dreaming?
Then proffer a retainer;
Nothing can be plainer.
A jury was selected,
Was easily detected.
And found-tho' loath to tell 'em,
Lodged in his cerebellum.
They made the wise suggestion, Which by the jury was indorsed, “He died from indigestion."
A. B. PRATT. ALBANY, Feb., 1884.
He visits then the city courts,
Both civil and police, And wisely talks of suits-at-law,
And breaches of the peace.
A month rolls by, his rent's to pay,
His board bill's in arrears, And not one dollar in his purseHis heart gives way to fears. His bonor pledged is now at stake,
He deems it worth redeeming; But how to do it is the thing
Without resort to scheming.
He chances in the higher court,
While prisoners are pleadivg, Tbe judge assigus him to defend,
A woman charged with stealing. He hears her story to the end,
How loved, ruined and slighted, By her false lover's perjured oath,
Imprisoned and indicted.
THE TERM OF THE NEW JUDGES. Editor of the Albany Law Journal:
Notwithstanding the strictures of J. K., the conclusions of D. would seem to be in accordance with the law.
The Constitution says that the official term of the judges elected after its adoption " shall be fourteen years from, and including the 1st day of January next after their election." Had the Constitution left out the words " and including," it might be argued that this clause simply defined the limit of the term but with these words in it seems to leave no room for argu
ment that the term can commence at any other period ment affirmed with costs against the appellant-Ann than thereby fixed, the term includes all that period Reese, respondent, v. William Smyth, Acting Supercommencing the 1st of January following the election intendent of Insurance, appellant. — Judgment of down to the end of the fourteenth successive year. General Term and decree of surrogate reversed and
The addition to the Constitution providing for the case remitted to surrogate for further proceedings in election of additional justices simply provides that accordance with this opinion, costs of both parties to “the justices 80 elected shall be invested with their be paid out of the estate-In re Account of James offices on the first Monday of June next after their Hughes, admr., etc. ----Order reversed and judgment of election." Burrill defines “invest" as follows: "To Special Term affirmed-Jacob K. Lockman, exr., etc.. give possession, to put into possession, to put one in appellant, v. Thomas J. Reilly, respondent. Judg. possession of a fee, estate or office newly acquired. To ment affirmed with costs-Mary Jane Peek, ex'I, apclothe with possession, to clothe possession with the pellant, v. Patrick Callaghan, respondent; Martin solemnities of law.” Investing a person with office Cain, admr., etc., appellant, v. City of Syracuse, retherefore simply means formally and officially con- spondent; Nassau Bank, appellant, v. John J. Jones, ducting him into the office he has acquired. This exr., etc., respondent; Wm. H. Crossman and others, formal ceremony, this investing with office, generally appellants, v. Henry C. Crossman and others, respond. takes place at the commencement of the term, hence ents; Ida Mabie, respondent, v. Lewis H. Bailey, ezr., the one is apt to be confounded with the other. But etc., appellant; Henry Heinrich and another, exrs. etc., the distinction is obvious. Take for instance two men, respondent, v. Wm. T. A. Hart, appellant; Paul Calboth of whom claim to have been elected to a certain laghan, admr., etc., respondent, v. Rome, Watertown & office. The one is invested therewith, the other at- Ogdensburg R. Ro., appellant; John L. Sutherland, ear., tacks the title of the occupant, succeeds and ousts and another, respondent, v. Lauren C. Woodruff, aphim; he in turn becomes invested with the office. In pellant (two cases). — Judgment of Special and Gensuch a case can there be any question as to when his eral Terms reversed, and the decree of the court beterm of office commences, and yet he is invested with low modified so as to deelare the tenth clause of the it at a subsequent date. Again on the death of the will to be void and direct payment of bequest to the president of the United States, the vice-president, eo defendant as residuary legatee, costs of both parties to instanter, becomes president thereof, but the formal be paid out of the estate-Wm. M. Prichard and another, ceremony of investing him with his office is postponed exrs., respondents, v. John B. Thompson, individually until a subsequent date. Section 4 of article 14, and another, exr., appellants. Judgment below recognizes this distinction by providing for the first modified in accordance with opinion, and as modielection of judges thereunder, and further providing fied, affirmed without costs to either party-Elizabeth that they shall enter on their duties the first Monday M. Cook, an infant, respondent and appellant, v. Alex. of the following July “but the term of office shall be M. Lowry, appellant and respondent.- Order afdeemed to commence on the first day of January, firmed with costs—People est rel. Walter E. Smith, re1848.” What the idea was in deferring the time of in- spondent, v. Charles Geetum and another, impld., etc., vestiture for some months after the commencement of appellants. Judgment of General Term reversed; the term it is unnecessary to consider. We have only that of Special Term affirmed with costs—In re Applito deal with the law as we find it.
cation of Emily P. Woolsey and another, etc., respond. And if this view of the law as it stands is correct, in ent, v. W. Remsen Taylor and others, comrs., etc., apwhat position does it place the two gentlemen who pellants.-Judgment of General and Special Terms were elected to the position in the first department reversed and judgment ordered for the defendants, last fall? At the time of their election they each held dismissing the complaint with costs-Mary N. Johna public office which they have not yet resigned, but son, x'ex, etc., respondent, v. John 1. Lawrence and are still holding and performing the duties thereof. another., surv's, etc., and others.-Judgment modiHave they not elected to retain the same? The Con- fied by reducing the rate of interest one per cent from stitution provides that “the justices of the Supreme June 1, 1880, to September 14, 1881, and as modified Court shall not hold any other office or public trust."
affirmed with costs-Farlin Ball, exr., etc., respondent, If these gentlemen are able to hold a public office v. Russell B. Biddlecom and ano., ex'rs, etc., applts.during any part of their term of justiceship, then Affirmed on opinion in Tillman v. Davis, with costs to what is the use of this clause in the Constitution? both parties out of the estate Frederick Loomis, Here is a question for the corporation counsel to trustee, v. G. Byron Doud, adm'r, appellant, and argue and for Judge Van Brunt to decide.
George A. White, and another, respondents. Judg. Yours, etc.,
ment affirmed with costs against the appellant perA. J. sonally - Albert F. Gladding, exr., tr., appellant, v.
Louisa F. Follett, respondent.-Judgment of General COURT OF APPEALS DECISIONS.
Term reversed; that of Special Term modified so as to
conforın to the opinion, costs of all parties upon apHE following decisions were handed down Tues
peals to the General Term and to this court to be paid day, February 26, 1884.
out of the estate-Louisa J. Hollis, ind., and as exr., Judgment of General Term so far as it reverses or respondent, v. Georye Hollis and others, appellants. modifies the decree of the surrogate reversed, and the - Judgment affirmed, and judgment absolute ordered decree of the surrogate in all respects affirmed, costs for the respondent, on the stipulation for $7,669.43 of contestants and of Martin Brimmer at General
with interest from June 25, 1879, and $3,799 with interTerm and in this court to be paid out of the estate- est for the same time, with costs-Josephine Todd, reCornelia W. Adair, et al., appellants, v. Martin Brim- spondent, v. Albert Weber, Jr., et al. exrs., appellants. mer et al., respondent.-Judgment reversed, new Judgment affirmed–The People, respondents, v. trial granted, costs to abide the event-Casendania
John M. Meyers, appellant.-Judgment of General Sanford and another, respondents, v. Thomus D. Eli- Term affirmed ; costs of both parties to be paid out of throp and others, appellants; Thomas S. Sutherland, the fund-Nancy Watts and another, respondents . appellant, V. John J. Olcott and another, exrs., re
James Ronald, exr., appellant.-- Judgment of Genspondents; Robert A. Snyder and another, exrs., etc.,
eral Term and decree of surrogate reversed and a new
hearing ordered before the surrogate, costs of the respondents, 1. Atlantic Mutual Ins. Co., appellant;
party finally prevailing to be paid out of the estateWilliam E. Leavitt, exr., etc., respondent, v. Henry Benjamin Wooley, exr., appellant, v. Sarah E. Wooley G. Wolcott and another, exrs., etc., appellants.-Jud. and another., respondents.
The Albany Law Journal.
rights,” containing 867 sections and covering 267 pages. The subjects covered are real property,
personal property, express contracts, wills, etc., ALBANY, MARCH 8, 1884.
receivers and trustees, time, weights, measures, money and interest, commercial and industrial rela
tions, domestic relations, definitions, etc. The bill CURRENT TOPICS.
has been recommitted, and wisely, we think. We THE Tribune publishes a corrected summary of the have had time and now have space to refer only to
a few of its provisions which we think unwise. And upon codification: “The three questions to be answered were as follows: 1. Are you in favor of frauds. It reads as follows: “The last two sections the codification of the common law in this State ? apply, although the goods and chattels are intended 2. Are you in favor of the Field Civil Code? 3.
to be delivered at a future time, or are not, at the Why? The answers are classified as follows:
time of the contract, actually made, procured or First — Those that answered “Yes' to the first ques provided, or fit or ready for delivery; or some act tion and 'Yes' to the second, and who did not
is requisite for the making or completing thereof, or answer the third. Second — Those that answered rendering the same fit for delivery.” This is de*No' to the first two questions, but who did not signed to embrace a contract of manufacture as well answer the third. Third — Those that answered
as a contract of sale. Doubtless it is often very 'Yes' to the first and 'No' to the second, with or
difficult to distinguish between the two classes; without answer to the third question. Fourth
witness the case in our Court of Appeals of sale of a Those that answered 'Yes' to the first, gave no
mortuary monument, to be lettered and somewhat answer to the second, with or without answer to the modified and added to. But this inconvenience can third. Fifth — Those that answered the first two
better be borne than the enormous inconvenience questions in the affirmative and gave their reasons.
which would be entailed by the proposed rule. It Sixth – Those that answered the first two questions would be insupportable, for example, if a man could in the negative and gave their reasons. Following
not bind himself to pay for a suit of clothes worth are the numbers in each class: Class number 1, 53; $60 without signing a written contract. No law can class number 2, 138; class number 3, 75; class
be conceived that would increase litigation more number 4, 201; class number 5, 311; class number
than this, for it would be a practical dead letter in 6, 431; total, 1,209. Recapitulation: Total number trade, and a standing invitation to tradesmen and in favor of codification, 640; total number in favor
customers to avoid their contracts. of Field Code, 364; total number opposed to codification, 569; total number opposed to Field Code, 644; majority declaring in favor of codification, Again $ 64 proposes to do away with tenancy by 71; majority declaring themselves opposed to Field entirety, and to make the provision retroactive. Code, 280; majority of those opposed to Field Code Four judges of the Court of Appeals were of opinion, over those in favor of codification, 4; number not in Meeker v. Wright, 76 N. Y. 262, that the tenancy expressing opinion on Field Code, 201.”
was abolished by implication by the married woman's
acts, but the contrary was authoritatively held in As we have said before, the significance of this Bertles v. Nunan, 92 N. Y. 152. It might be well result depends upon two unknown factors, namely, enough -- indeed, we think more consistent with the first, how many of those expressing an opinion on
theory of the married woman's act — to abolish this the Field Code have read it, and second, who they tenancy prospectively, but why should it be made are and where they live; i. e., how many of them retroactive ? An immense amount of property is are outside the New York City Bar Association.
now held in this State under this tenure, and there Not that we by any means believe that a majority
would be little justice and no good purpose in unsetof that association are opposed to codification or
tling it. There is a vast difference between a law dethe Field Code; on the contrary we believe that on
claring that the property which a wife'owned at the a full vote a majority would be the other way; but
time of marriage shall be her separate property after no doubt a majority of those most active in its marriage, and a law declaring that property deeded management and most constant in attendance are
so that the husband shall have the title by survivoropposed to codification. We wish the Tribune would ship shall not be his but shall be in common. As institute a postal-card inquiry among the clients of
the Daily Register well says, this is equivalent to those 1,200 lawyers. We think they would prefer declaring that “ the property of A. shall be hencewritten laws, and certainly their opinion should have
forth deemed to be the property of B.” Besides, is greater weight than that of their attorneys.
not tenancy by entirety a vested right by contract, which the Legislature cannot constitutionally take
away? This question did not arise in Meeker v. Senator Gilbert has introduced an important and Wright or Bertles v. Nunan, as the conveyances there voluminous bill in the judiciary committee, “to were subsequent to the married woman's acts. We revise part second of the Revised Statutes, and the are not positive about this, and perhaps Senator subsequent acts relating to property and private Gilbert has considered it.
VOL. 29 - No. 10.
Opposed to codification, or at least to Mr. Field's lawyers why do they not dispense with their serCode, as Senator Gilbert is known to be, he still vices ? There is no law compelling any one to embelieves in “ definitions," and his bill contains a ploy counsel; there is a book entitled 'Every man number of them. Even “vessel” is here defined, - | his own lawyer.' Lawyers never intrude their ser"every structure, complete or incomplete, intended vices, but they are sought after, and will be as long to float upon the waters. We hardly know as civil liberty has a place on earth. whether this will satisfy Prof. Dwight. It does not Croly used to be the editor of the World, and did greatly differ from Mr. Field's — “a structure lawyers write for his paper simply because they fitted for navigation.” We call Prof. Dwight's at- were lawyers; or was it because they had something tention to it, and hope he will see that it does not to say and knew how to say it? Sir William Blackinfringe upon the “nautilus.” He may think that it stone, a great many years ago, suggested that it includes “ the tiniest boat or a child's toy.” And would be desirable for every gentleman to study the does it not include a buoy? We greatly fear that laws of his country, so that he might take an intelit does — if not a life preserver.
ligent part in the making and executing the laws
thereof; but we believe that so far very few have But the bill recognizes the office and use
seen fit to take advantage of his suggestion; about fulness of codification by reducing to a statutory
ten thousand in this country of fifty-six millions of form many clear decisions of the courts and souls, we believe, Mr. Croly estimates them to be. many others that are conflicting. Our radical
We don't believe the law is a blundering profession, objection to the whole bill, if it is de
and we would watch a lawyer very closely, who said signed as a substitute for a code, is that it is too
that he did. Lawyers as a general rule have the detailed. What can be said in favor of a code con
utmost confidence in each other's integrity, and so taining such enactments as the following ? —“The
far as we have been able to judge, their clients trust half-bushel is the unit of measure of capacity, for
them implicitly; this confidence may sometimes be substances other than liquids;” —(we are glad to abused, but we, after a practice of ten years, canknow that whisky is not to be sold by the bushel) —
not recall a single well-authenticated charge to have “but for convenience, the measure of such sub
been made against a lawyer. Isn't it because of stances, when it exceeds two half-bushels, may be
their well-grounded knowledge of the laws, and expressed in bushels, each consisting of two half
their well-known integrity that they exert such an bushels." “A commodity, sold by heap-measure,
influence over the nation? The relief that the ALmust be heaped up as high as its nature permits, in
BANY LAW JOURNAL would offer to this lawyer-ridthe form of a cone, whose base is limited by the
den people, is, a written system of laws; and whom outside of the top of the measure used.” (It would
would it have write them ? David Dudley Field be pretty difficult for the base to get outside of it,
- a lawyer." We commend this voice from North we should think, although it might not extend to it.)
Carolina to the lawyer-phobist of the Troy Daily
Times. A clergyman shall be entitled to one dollar for "solemnizing” a marriage, but he may accept “any sum" less as well as more, we suppose. A crane, and
NOTES OF CASES. irons, coal scuttle, shovel, tongs, lamp, and candle
'N Briesen v. Long Island R. Co., 31 Hun, 112, it stick shall be exempt from execution. These are but samples. All this sort of thing is proper for
was held that where a railroad company has statutes, but is no proper part of the organic law.
acquired title to the interior of a block in a city, and uses the same as a depot for passengers and freight
and a yard for the accommodation of incoming and In spite of his disclaimer, we must continue to outgoing trains, and such drilling operations as are believe that the editor of the Central Law Journal absolutely necessary to the proper transaction of carries a pistol, when he talks about “driving its business, using due skill and care and all the " to the wall." As our brother hates gowns so, he appliances and machinery required by law, it is not should never be heard to say any thing about liable to the owner of abutting property for the “soiling the judicial ermine,” but he should substi- injury and damages which may be caused thereto by tute “ Newmarket," or “ cut-away,” or something such use. The court said: “It may be stated, as a like that. But let him come hither — laying aside general rule of law in this State, that what is done his weapon
that it to say, if it is deadly -- and by the sanction of the State under legislative we will show him our judges in their gowns, and authority is completely justified when done without that there is nothing dreadful in the sight.
negligence or fault. Radcliff”: Executors v. Mayor,
4 Coms. 195. It was decided in that case where Speaking of Mr. Croly and his objection to the persons are authorized by the Legislature to do ceroffice of attorney-general and to lawyers in general, tain things they are not responsible for consequential the Telegram, published at Snow Hill, N. C., very damages where they act with prudence and care. In sensibly remarks: “It is necessary that men who no proper or strict sense can this railroad be termed have made the science of law more or less a study, a nuisance, when managed without negligence or should make and expound the laws or all would be willful misconduct. Its construction was authorized chaos and confusion. If the people are tired of by sovereign power for purposes of public utility
and its operation is lawful because it is in pursuance There was no basis for such a restriction upon the of a statutory license. So long as it is kept within carrying of the clerk.” Dyckman, J., dissented, observthe scope of the powers granted to it, it is protected ing: “The deceased man received and accepted from all legal proceedings. This remark however this pass containing this language, and was in possesis subject to the qualification that the resulting in- sion of it at the time of his death. Such jury arises as a natural result of the exercise of the acceptance constituted a contract between him statutory authority. In the case of Bellemont and and the company, by which he waived liabilOhio Company v. Fifth Baptist Church, 27 Alb. Law ity by reason of negligence. Our conclusion Jour. 488, the Supreme Court of the United States therefore is, that the plaintiff cannot avail laid down a different rule of law; but as we under herself of the contract between the government stand the law to be settled in the courts of this and ihe defendant, because it was not made with State as we have stated it here, we feel bound to or for the deceased ; and that although the defendfollow our own rule until our highest appellate ant owed the deceased the duty of care because it courts shall declare a different rule.”
had undertaken to carry him, and he was rightfully
on the train, the performance of that duty was In Mullen v. Platt, 31 Hun, 121, it was held that waived by the acceptance and use of the pass cona married woman is personally liable for the value taining the stipulation for exemption.” See Ponn. of services rendered by a music teacher, at her re- R. Co. v. Price, 96 Penn. St. 256; 8. C., Alb. Law quest, to her daughters, and for the value of sheet Jour. 69. music furnished by him to them while giving them instructions in music. The court said: "Married
In People v. Woodward, 31 Hun, 57, it was held women have been held liable on contracts similar to
that taking a horse from another's stable, killing it, this. In Tiemeyer v. Turnquist, 85 N. Y. 516; s. and burying it in a pit does not necessarily conC., 39 Am. Rep. 674, the Court of Appeals held a
stitute larceny. The court said: “Upon the evimarried woman liable for groceries bought on her dence it is certainly a grave question whether the credit to be consumed by her family, including her act charged and proved was larceny or malicious husband. In the case of Conlin v. Cantrell, 64 N. mischief. To constitute larceny there must have Y. 217, the same court held a married woman liable been a felonious intent, animo furandi or lucri causa. on a contract for services of a seamstress to do work The malicious killing of a horse is a misdemeanor. for herself and her children.” But it was held in (Penal Code, $ 654; 2 Rev. Stat., *695, and chap. White v. Story, 43 Barb. 124, that a married woman 682, Laws of 1866.) The offenses are quite distinct. is not liable to pay for a wedding supper of her In either case there is a trespass. In larceny the daughter, although she ordered it, and afterward taking must be for the purpose of converting to the
use of the taker. promised to pay for it. Flynn v. Messenger, 28
In malicious mischief no such Minn. 208; s. C., 41 Am. Rep. 279, seems opposed tends to show a taking of the horse to kill him, with
intent is necessary. In the present case the evidence to the principal case. If the station of the parties was such as to render the services and goods
a sole desire to injure the owner. It was incumbent necessaries, the wife certainly was not liable for
on the court then to point out to the jury the legal them on her bare request.
elements of the crime of larceny, so as to distinguish it from malicious mischief.” Learned, J., dissented,
in a learned opinion, holding that lucri causa is not In Seybolt v. New York, etc., R. Co., 31 Hun, 100, an essential of larceny. He says there is no decision it was held that a United States postal clerk travel- on the point in this State, and “ it may then, I ling in a postal car, free under the mail contract, is thiuk, be said to be established by the great weight to be regarded as a passenger, and the railroad of American authorities, with no real exception, company is liable for his death by its negligence, that to constitute larceny it is not necessary that although the pass issued by the company contained the intent of the taker should be to appropriate the a condition waiving such right. The court said: property to his use; that where the other elements "The deceased was a postal clerk, and the defend- exist, it is enough if the intent be to deprive the ant was a carrier of the mails for the government owner permanently of his property. If in the by contract. It was a part of this contract that the absence of decisions in our own State we are not to postal clerks should be carried free. In such cases be guided by these text-books and by these decisions the clerks are passengers and entitled to protection of other States, and of England, and are to consider as such. Blair v. Erie Railway, 66 N. Y. 313. the question on principle, then I think the same The clerk was not travelling upon a free pass. The conclusion should follow. That there must be a government officers made requisition for passes taking is undoubted; that it must be wrongful and under the contract, and the defendant sent one with without excuse or color of right. But when these a condition upon the back of the pass making the circumstances exist, what does it matter whether recipient agree to waive his right to sue for injuries the motive of the person taking is to benefit himself occasioned by the negligence of the railroad com- or to injure the owner? Suppose the property is a pany. This was not a part of the contract between thing highly valued by the owner; a thing which the government and the defendant, nor of the con- the person taking it cannot use and does not intend tract between the government and the deceased to use; and suppose that out of malice he takes it