indecent character, shall be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office, nor by any letter-carrier, and that any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any thing therein declared to be non-mailable matter, shall be subject to fine or imprisonment, or both. The indictment alleged that the defendant did unlawfully and knowingly deposit in a post-office, for mailing and delivery (naming the time), a certain obscene, lewd, and lascivious writing, purporting to be a letter, and inclosed in a letter-envelope, addressed to a female person at another post-office (the post-offices and persons being named), the said writing being so obscene it could not be set forth in the indictment. Held, that the writing described in the indictment was within the terms of the statute, and was non-mailable matter. U. S. Cir. Ct., S. D. Illinois, July, 1883. United States v. Gaylord. Opinion by Drummond, J. (17 F. R. 435.) WARRANT-PROTECTS OFFICER THOUGH INFORMALONE KILLING OFFICER SERVING COMMITS MURDER.-A justice's warrant for larceny, which describes the offense with sufficient precision to apprize the accused of the charge, is good, though defective in form, and will protect the officer who executes it. A regular officer is bound to obey a warrant directed to him, if it is for an offense within the jurisdiction of the justice (either to bind over or try the party); and a special officer is equally protected by the law when he executes such warrant, though not bound to obey it, nor sworn as a regular officer. In State v. Boyd, 17 Ga. 194, when it was claimed that the killing of an officer in the execution of an imperfect warrant was murder, the court sustained the claim saying: "It would be monstrous to lay down a different rule. It would put in jeopardy the life of every officer in the land. It never could be intended that they should determine, at their peril, the strict legal sufficiency of every precept placed in their hands." See also 2 Hale, 111; King v. Wilkes, 2 Wil. 151; and Rex v. McCulley, 9 Coke Rep. 117, where it was resolved by all the judges, met in conference upon the record of conviction in that case, that if there be error in awarding process, or in the mistake of one process for another, and an officer be slain in the execution thereof, the offender shall not have the advantage of such error, but that the resisting the officer, as he comes in the King's name, is murder." In Rex v. Croker, 2 Chitty, 138, the defendant was committed for embezzling bank notes; the warrant did not state that the act was done "feloniously," and it was therefore claimed that the defendant was entitled to his discharge. But the court said, a commitment need not have the precision of an indictment. The commitment states general evidence, and though not formally sufficient to find him guilty, yet it is sufficient if the corpus delicti be shown to us to warrant the conviction. North Carolina Supreme Court, February Term, 1883. State of North Carolina v. Jones. Opinion by Ashe, J. (88 N. C. 671.) CORRESPONDENCE. THE NEW SUPREME COURT JUSTICES-WHEN DOES THEIR TERM COMMENCE? Editor of the Albany Law Journal: Article 6 of the Constitution provides (sec. 13): Justices of the Supreme Court shall be chosen by the electors of the respective judicial districts. "The official terms of said justices, who shall be elected after the adoption of this article shall be fourteen years from and including the first day of January next after their election." This was the language of the judiciary article of the Constitution when adopted. It is clean cut and comprehensive, and applies to all justices who shall be elected after the adoption of the judiciary article, when so framed. And thus it stood in 1882, when an amendment was adopted and became a part of the Constitution, providing for the election of the twelve new justices. The amendment of 1882 does not propose to alter, or change, or repeal any part of the judiciary article then in existence, but leaves it intact, and it still so remains. The amendment simply added a section as section 28: The section so added, after its adoption became a part of the Constitutiou, stands the same as if it had always been a part of the Constitution. This section (28) provides for the election of twelve additional justices at the fall election of 1883, and the last paragraph of the section reads as fellows- "The justices so elected shall be invested with their offices on the first Monday of June next after their election." It does not undertake to name or fix any official term, either the beginning or the ending. It does not undertake to define what these newly elected justices shall do between the time of their election and the first Monday in June, or what they shall not do. It is only by virtue of the provisions of the thirteenth section that they have any terms at all. It will only be by virtue of section 13, that their terms will ever have an end. Suppose the last quoted clause of section 28 had been omitted; can it be doubted that the official term, both beginning and ending, would have been regulated by section 13? We are all well aware of the principle that sometimes prevails, that in the assertion of an affirmative, a negative is implied, and vice versa. It is only by invoking this principle that any argument can be maintained to the effect that the newly elected justices may not exercise the functions of their offices before the first Monday in June. Because the new section states that they "shall then be invested with their offices," therefore it is fairly implied that they are not so invested before. But section 13 tells us plainly that the official term shall commence on the first day of January after their election. It These men are therefore justices, de jure, from and after January 1st, and from that day are prohibited from practicing as lawyers in the State courts. may be that they are suspended from exercising the functions of their offices until June following. Whether the law-makers intended by this to give the newly elected justices five months' time to rid themselves of their private law practice, or otherwise prepare themselves to give up their entire time to the public duties, or whether to give them so much time to brush up their law education, and better fit themselves for the bench; whether these or other considerations prevailed, is quite immaterial; suffice it to say, they did leave the Constitution in just such shape, that although the official term commenced January 1st, these newly elected officials do not become empowered to do the business of a judge until after a probation of five months. Unless section 13 is allowed to regulate the term, then there will be no end to their terms, and the new justices will be in for life. Section 13 does either regulate the term, or it does not. If it is effectual to that end, it must have full scope, not eliminated in in any particular. If it can be allowed to fix the end of the term, it has like effect to fix the beginning. It does both, or it does nothing; and if it fails to regu late the matter, then the new justices are in for life. It does not follow that because the term commences on the first day of January, that they are invested with the duties of their offices during the "interregnum" between January 1st and June 1st. There is no legal inconsistency in a law giving a person an official term, with a provision suspending the power to exercise the duties of the office for a time, just that thing has been done here. The men elected at the fall election are to-day justices of the Supreme Court, are thus now rendered incompetent to practice law, or act as referee, and on the first Monday in June next will be authorized to hold courts, and discharge judicial functions. Aside from all other Considerations there is a manifest impropriety in these men continuing in the lawyer's arena. Everybody knows they are soon to be on the bench invested with judicial functions. It is embarrassing to the lawyer himself, and he will feel restrained from giving full swing to his duty as an advocate and practitioner. It is embarrassing to his adversary, who knowing that he is soon to confront him on the bench, will naturally feel a degree of timidity in making fight against him. Especially will this be the case, with young and inexperienced lawyers, who may sometimes fear the imaginary powers of the coming judge, and feel restrained in his presence as an advocate. The fitness of things will at once exclude from the practice the man who already stands recorded as a judge and so soon expected to dispense justice with a mind freed from all prejudices and animosities. THE MORMON QUESTION. Editor of the Albany Law Journal: D Having very recently returned from a visit to Salt Lake city, and having had opportunities while there of conversing with quite a number of the "saints," permit me to add my contribution to the general discussion which is now going on on the Mormon question. Since my return to the east I have had occasion to notice various "remedies" advanced for the suppression of polygamy, many of which seem very amusing. 1 recall one advanced in the editorial columns of the Post to the effect that there shall be an embargo laid upon women coming into Utah territory. I cannot believe this is a serious proposition. If it were, how little the writer knows of feminine determination to do the thing especially forbidden! Utah would be over-run with spinsters in a month! Other plans have been directed to a system of penalties, political or otherwise, which have most of them the fatal defect of depending upon the jury system to determine the facts. Now a jury of Mormons, bound by the sacred oaths of their order, is incapable of deciding facts relating to polygamy, and a jury of Gentiles in Utah was never known. Again, the marriages of the saints in the Endowment house are recorded in secret archives, which cannot be produced on trial, for there are always plenty to make oath either of no marriage whatever, or of no record, hence there can be no foundation laid to obtain requisite judicial orders requiring production of the marriage record. If the policy of "suppression" is, after careful debate in Congress determined upon, then the only plan in my opinion, which would be effective would be: 1. A resumption of the control of the territory by the general government, as suggested by president Arthur in his message. 2. Martial law. Trial of civil suits as well as criminal by military tribunals. 3. A general prohibitory act by which the real property of the church, and of individual Mormons is directly or indirectly attacked, e. g., permit any person upon producing proof on trial of polygamous marriages, in the "church" to have a good title to the real property of any polygamist, or one-half the property of such person found guilty. 4. No further tithes or other taxes to be paid into the church upon pain of forfeiture of estate. In attacking the title to real property of Mormons the government will do much to sever the only real tie which has been so far efficient in making the hierarchy under president Taylor successful, and has kept the Mormon people a unit. There are we say 100,000 Mormons in Utah, 15,000 of these only are polygamists, only about 7 per cent, are probably, if left to themselves, in favor of polygamy. Then again there are a large number of so-called "apostates " who were ouce Mormous in good standing, and also a new sect which has recently risen in the church which is decidedly op posed to polygamy. These divisions and sects of the church indicate that there are a great many Mormons who would be willing to bring polygamy to an end, if they could be allowed a separate community of property. Their surprising material success has really been the great factor which has kept up their belief in their church. They have almost no spiritual faith. Their sermons consist of matter landatory of their material success, or attacks on Gentile social evils. The old faith in Smith and his silly prophesies, revelations and inspirations has apparently died out in all except Helen Near Whitney and the very ignorant. If they ceased to be successful materially, their whole establishment sold out under the hammer-there would be an end of the whole social question. President Arthur is right in his recommendations to this Congress, "that it is profitless to attack it with any but the stoutest weapons which constitutional legislation can make." J. S. WOOD. NEW YORK, Jan. 9, 1884. THE COURT OF APPEALS DECISIONS. HE following decisions were handed down Tuesday, January 22, 1884. Judgment affirmed, with costs-Evan McIntyre, respondent, v. William E. Strong, appellant; John Segilkin, by guardian, respondents, v. Otto Meyer, appellant.- -Order affirmed with costs--Henry Danenbaum, et al., respondent, v. Lehman H. Mandelbaum, appellant. -Judgment affirmed-People, etc., appellant, v. Thomas McKeon, respondent; People, etc., respondents, v. George Smith, appellant; People, etc., respondents, v. Edward Courtney, appellant.-Motion to restore premises, etc. Motion granted and remittitur amended so as to read "restitution ordered to be enforced by the court below"-Wm. R. Seward and others, V. Henry F. Huntington and others.-Motion for reargument denied, with costs-Reese v. Reese; Hostey v. City of Buffalo; In re Clover, assignee, etc., v. Ellsworth, claimant.--Motion to revive suit granted--Bradley v. Manning and ors.- -Motion to modify remititur. Remittitur recalled and so amended that it will read: "Without prejudice to any application the defendant may be advised to make for relief to the courts below" -Wright, receiver, v. Nostrand and others.—Motion to reserve cause. Motion granted and argument stayed until the April Term, unless the case pending in the United States Supreme Court is sooner decided -Ellis v. Phoenix National Bank.-Motion to dismiss appeal. Denied with $10 costs-Smith v. Risley. -Motion to advance cause. Denied with costsPeople ex rel. Argentine v. Kenay and others.-Motion to put cause on calendar. Granted-People v. City Bank of Rochester.-Motion to dismiss appeal. Granted with costs-Greenwood, executor, v. Martin, executor.- -Motion to dismiss appeal. Granted, dismissing the appeal from the order, without costs, and also dismissing appeal from the judgment, unless within twenty days the appellant furnishes at amended and perfected undertaking and pays $10 costs of the motion-Harris v. Healey and others.-Motion to compel filing corrected return. Denied with $10 costs -Kilmer v. N. Y. C. & H. R. R. Co. The Albany Law Journal. ALBANY, FEBRUARY 2, 1884. CURRENT TOPICS. R. JAMES C. CARTER has printed his on general of above one hundred pages, and has put it into the hands of every member of the Legislature so we are informed and doubtless expects them to read it. As our readers may have inferred from former remarks in this journal Mr. Carter is not in favor of general codification. We have more than once hinted that we are in favor of it, and therefore it rejoices us to believe that none of the Legislature will read Mr. Carter's pamphlet. It is too long. He ought to have codified it. But we have paid Mr. Carter the unique compliment of reading it. On the whole it is a rather temperate performance for Mr. Carter. To be sure there is some vulgar denunciation of Mr. Field and depreciation of his unselfish labor for forty years in the public service. And then we do wish that Mr. Carter would dissolve partnership with that marine insurance adjuster. We are tired of that Old Man of the Sea. After all, Mr. Carter's arguments may be summed up in this formula: The thing can't be done, you know. Now we say, tell that to marine adjusters; lawyers will not believe it. We see statutes made all the time with very fair success, and we cannot be made to believe that a code is impossible. Much of our common law has already been enacted in statutes. It is perfectly practicable to go on and enact it all. Then if Mr. Carter who is not understood to be hostile to statutes instead of a code, why, let him. We will assent to that. Mr. Carter even concedes that the common law has all been written, in the reports, but he wants nothing put in the way of that body of learned men who make their living by searching those reports and pretending to tell what the law is, or predict what it will be at the next sitting of the law-making judges. We find, in the recent report of the committee on the revision of the statutes, to the Connecticut State Bar Association, a few sentences which fit in well right here: "It savors of harshness to punish a man, civilly or criminally, for not obeying a law expressed in such a form that he could not by the aid of the best legal advice ascertain what it prescribed. It should be accessible or knowable, that the citizens of the State may, with the least difficulty, ascertain their rights and duties. As they are presumed to know the law, and are under a duty to obey its commands, it should be so expressed and arranged that they can come to a knowledge of its precepts. The certainty and accessibility of the law are to be considered with reference to two classes of persons— citizens generally, and experts or lawyers who are called upon VOL. 29-No. 5. wants to call the result statutes, by clients to predict what the decision of the court of last resort will be upon a given state of facts. The statute law is capable of being made, and ought to be made, the most certain department of the law.” We were in company with two learned judges, a few days ago, who asked us, what is the use of a bare framework or skeleton of legal principles, so familiar that every one is presumed to know them? To which we replied by saying that the great Lawgiver seemed to think it useful, and so wrote his commandments on stone, and then had Moses write a most minute and detailed body of statutes besides. Laws, we repeat, are not made solely or mainly for the eleven thousand lawyers of this State, but mainly for the other five millions of unlearned people, who are entitled to a book of laws, so that they may know what and where the law is. Experts may occasionally guess right as to the law as laid down in our hundreds of reports. They frequently make very wild guesses. And frequently the most astute are disappointed by finding a legislator instead of a judge on the bench. One of the most eminent of our lawyers once exclaimed at a ruling of a judge apparently in the teeth of his authorities, "your honor, there is no precedent for that." "Very well," said the judge, "then we'll make one." What we pray to be delivered from is this arbitrary, capricious, uncertain law-making power of the judges. It is this that unsettles old and well settled law by gradual encroachments and refined distinctions. They first distinguish, then query, then doubt, then disregard, then overrule. It is the reverse of the poet's description of the influence of vicious example: "We first endure, then pity, then embrace." We must remind Mr. Carter that Story and Greenleaf and their associates thought codification practicable and expedient. No other legal topic of so little importance has occupied so much of the attention of the press of late as the proposal to have the judges of the Court of Appeals wear gowns. It seems to be treated as a novel idea, imported to these shores with his lordship, the chief justice of England. This is a mistake. The idea suggested itself to the judges on the formation of the present court, fourteen years ago, and gowns would then have been adopted had it not been for the opposition of one of the ablest of that bench, who delighted in cowhide boots and was not over-punctilious in the article of "boiled shirts." A correspondent of the Express of this city occupies large part of a column in opposition to the wearing of judicial gowns, but we do not find any of his arguments against it so potent as the following which he concedes in its favor: "Occasionally a bucolic member of the legal profession, by sheer force of native ability, becomes elevated to the bench, who tends to degrade it by slovenly dress and manner. To guard against such abnormal American products, it would be well, perhaps, for the judges to adopt some plain and uniform style of dress," etc. A correspondent of our own, in another column, also opposes the gowns. In short, no other article of apparel since the famous "bloody shirt" has made so much turmoil. There is a great deal of demagoguism about the opposition to gowns. We hear not a word against military and naval uniforms. Unquestionably many a one of these newspaper writers is proud to be on some holiday general's staff, and to disport himself uneasily and insecurely at general training on the back of an untamed grocery-wagon horse for the delectation of his favorite girl. Many of the lawyers who start at gowns are 66 Knights Templar," or sons of something or another, and fond of big hats, and aprons, and scarfs, and bloodless swords, and of intricate and wonderful drilling and parading in public. Many of the Masons, we are credibly informed, wear the most gorgeous gowns on certain occasions. But for the judges to wear gowns is "anti-democratic," forsooth! Let us hear no more of this nonsense about aping foreign fashions, and the danger of gowns being an opening wedge to wigs; and if the judges wish to put on gowns let them do so in peace, and let us console ourselves with reflections on a whole great people who once wore gowns — togata gens. - There has been a good deal of silly and sensational talk in the newspapers recently about impeaching certain of our judges for appointing favorites as referees. It is now rumored that just as soon as the New York City Bar Association and the corps of marine insurance adjusters get done with their hopeless struggle against general codification, they will take measures to have certain of the New York city judges impeached for practices unusual and unbecoming to the bench. It is darkly hinted that the first blow will be aimed at Judge Barrett for having uttered a stage-play - to be sure, it did not run very long, but that was the fault of the public and not of the judge. And then Judge Davis' case will be taken up. This able magistrate and versatile gentleman has been uttering poetry in a magazine! What are we coming to? gowns and stage-plays and poetry on the part of our judges! The poetry however is good-much better than some of his honor's judicial dicta. Inasmuch as the occasion of the verses is also quasi-judicial, we reproduce them, with the preliminary explanation, from the Manhattan magazine: "Judge Charles R. Ingalls of Troy is the owner of the paternal homestead of his family at Greenwich, Washington county, N. Y. Near one of the lines of the property stands a noble old elm, which has grown so large that its trunk extends into the adjoining lot. A person who had lately purchased that lot was about to cut down the tree, and to save it from destruction the judge paid many time its value for a strip of land next the homestead, and wide enough to protect the elm. In writing of this to a friend, he says: It is so beautiful a tree that it might well be worshiped. If you could see it in June, I am sure it would wake up your enthusiasm. Even with its naked boughs it seems to thank me for saving its life. I thank God I am able to protect a spot so dear to me. I do not believe it is all sentiment, but if it is, I treasure it sacredly.' This incident has suggested the following lines, which are inscribed to Judge Ingalls by his friend: An elm stood on my father's line, Long years have fled, and I am left Invade and hold a stranger's land, Affection's arm to stay its fall. A sough of grief foreboding woe. A ransomed right to cherish thee. With drooping boughs it strives to bless, Fragrant with speechless thankfulness." Now this is as it should be, and presents the judge in a much more admirable and amiable light than when he is fining counsel for contempt, or abusing the Court of Appeals' Judges, or denouncing Mr. Hewitt. Long may he live to write poetry. The Saturday Review, speaking of the proposal to limit the right of action for breach of promise of marriage to actual pecuniary loss, says: "This is in substantial agreement with the law of most European countries. It represents the French law, except that in France an action lies where the woman has been seduced, to which there is the obvious objection that it puts a premium upon immorality. In Italy there is no right of action unless the promise is in writing, and then only expenses incurred can be recovered. In Austria and in Holland only the actual damage sustained is recoverable. In Germany where, as everybody knows, there is a formal ceremony of betrothal, onefifth of the dower may be reclaimed." The Review however does not approve the proposed change. It says we cannot legislate exclusively for refined and well-bred people. That is true; but we do not see why we should award damages for sensibilities which do not exist. IN NOTES OF CASES. 66 N Mullrehill v. Bates, Minnesota Supreme Court, January 7, 1884, 17 N. W. Rep. 959, the owner of an express wagon employed a servant to drive it, and intrusted it to him, generally, to be used at his discretion, in doing such business as he, the servant, could secure in the way of employment for the wagon. While thus employed, the servant having delivered a trunk, on his return got a load of poles for himself," and while taking them home negligently drove over and injured the plaintiff's child. Held, that the master was liable. The court said: "Counsel for appellant, in his able and ingenious argument, cites in support of his position a number of cases, of which Mitchell v. Crassmeller, 13 C. B. 237, is a sample, in which it is held that where the driver of the master's vehicle turns wholly aside from the master's employment and engages in an independent journey, wholly foreign to his employment, and for a purpose exclusively his own, the master is not liable for his acts. We have had occasion recently, in Marrier v. St. P., M. & M. Ry. Co., to consider and indorse the doctrine of these cases. But this class of cases is clearly distinguishable from the present. There the servant had specific orders as to the mode of dealing with the vehicle, and was obliged to attend to the specific errand on which he was sent, and then return to his master. If under these circumstances he employed the vehicle on some purpose wholly independent of his orders, of course he was not within the scope of his employment, and the master is not liable. But here the wagon was intrusted, generally, to the driver, to be used entirely at his discretion. This distinction is very clearly stated by Cockburn, C. J., in Venables V. Smith, 2 Q. B. Div. 679, a case very analogous to this one. It is true that in that case, but for a statute, the relation between the owner of the cab and the driver would have been that of a bailor and bailee, and not of master and servant. The statute created the relation of master and servant a relation which in the present case confessedly existed. But as is expressly stated in the case referred to, it was only with regard to the employment of the cab within the scope of the bailment that the relation of master and servant was created. Hence there as here, it had to be determined whether at the time of the injury the vehicle was being used within the scope of the bailment or employment, for as it is there said, if the employment of the vehicle by the driver, at the time the mischief was done, was wrongful in the sense that it was beyond the scope of the bailment, then the master would not be liable. So in this case, if the driver had taken the wagon on an independent journey of his own, altogether out of the scope of the purposes for which it was intrusted to him, and an injury had then occurred, the defendant would probably not have been liable. But such was not the fact. The trip in which the servant was using the wagon was within the scope of the purposes for which it was intrusted to him." See Stone v. Hills, 45 Conn. 44; S. C., 29 Am. Rep. 635, and note, p. 640; 21 Alb. Law Jour. 164. In DeLashmutt v. Sellwood, 10 Oreg. 319, it was held that any mark commonly understood, and ordinarily employed in business transactions, to denote the division of figures, obviously representing money, into dollars and cents, is sufficient for that purpose, in judicial records, or other official documents. Of this character are the lines and spaces in the ruled money columns of regular books of account, or official records similarly prepared. The court said: "The objection that it does not appear from the docket entry what the figures, in the column headed, amount of judgment,' stand for, presents a question by no means new in this court. In the case of French v. Rogers, disposed of at the last term, we held, in effect, that any mark commonly understood, and ordinarily employed in business transactions to denote the division of figures, obviously representing money, into dollars and cents, would suffice for that purpose, in entries of this character. Such we deemed the mark ordinarily used in setting down sums of money on paper, to denote the amount represented by the two figures on the right as cents, and that represented by the figures on the left as dollars; and the same effect in our judgment must be allowed to the lines and spaces in the ruled money columns, in regular account books, or official records similarly prepared. General usage and common understanding have given such marks and lines, when so employed, a signification by which not individuals only, but courts as well, are enabled to determine what, and what amount figures so placed were intended to represent, with as much ease and almost as much certainty as though the dollar mark itself, or written words even had been used to express the same meaning. To the doctrine of that case we still adhere, and deem it decisive of this point in the case before us." In Knapp v. Thomas, to appear in 39 Ohio St., it is held that an unconditional pardon is irrevocable and unimpeachable, although obtained by fraud. The court say, by Okey, J.: "But it is said that this full, unconditional pardon, by force of which |