ÆäÀÌÁö À̹ÌÁö
PDF
ePub

and to guard against the possible evil which the lengthened term alone suggested as possible." If this was the only reason for the insertion of this restriction in the Constitution, it would not apply to justices of the peace, as their terms of office were not extended, but I think the law was also based upon the assumption of incapacity on account of age, for certainly a person at seventy years of age, who had served for a long term could not be said to have less capacity to perform the duties of his office than if he had served a short term.

But there is nothing in the terms of the Constitution to distinguish between the officer elected for a long term and the one elected for a short term, between the justices of the Supreme Court and the justices of the peace; both come within the broad, comprehensive term of "justices of a court," and both fall within the reason of the restriction, if it is assumed to be based on incapacity on account of age.

Certainly if there was wisdom in applying this restriction to the terms of the judicial officers of the State, no reason exists why it should not apply to those of the lower grade, as well as to those [of the higher courts.

My attention is called by the respondents to section 54 of the Code of Civil Procedure, which requires "judges of courts of record to file certificates of the time when their terms of office will expire, either by completion of a full term or by reason of the disability of age;" and it is argued, as justices' courts are not courts of record, that this section must be taken as indicating the opinion of the Legislature that the provision under discussion does not apply to those officers. I do not concur in this view, but I think that this section of the Code, which is a substitute for the law of 1870, herein before referred to, is a further indication that the provision was intended to apply to judges of all courts.

The argument for the respondents is that justices' courts are not mentioned or referred to in the Constitution, and therefore justices of the peace do not fall within the term "justices of a court; " but the same may be said of the marine court of New York, the surrogates' courts of the several counties, and the other courts mentioned in section 2 of the Code, all of which are now courts of record. It would seem from section 54 that in the opinion of the Legislature the restriction as to age applied to judges of all courts of record. But if the restriction applies to surrogates, recorders of Utica and Oswego, and justices of the "justices' court of Albany," why not to justices of the peace generally? who as I have shown, are "justices of a court."

At the time of the adoption of the Constitution many of the courts mentioned in section 2 of the Code were not courts of record, and are not mentioned or referred to in the Constitution; yet clearly in the opinion of the Legislature, the constitutional restriction as to age applies to the judges of such courts.

I am unable to find in the language of the Constitution, or in what seems to me to be the true reason of the restriction, any thing upon which one class of judicial officers can be distinguished from another, and my conclusion is that it was intended to apply this restriction to the judges and justices of all the courts of the State whatever their grade or jurisdiction.

Justices of the peace are clearly "justices of a court" within the fair meaning of that term, and fall within the restriction.

A final order must therefore be entered, awarding an absolute writ against the respondents, but without costs.

UNITED STATES SUPREME COURT ABSTRACT.

OF

EVIDENCE - COPY OF PROBATE NOT PROOF VALIDITY OF WILL IN ANOTHER STATE-WHEN GRANTEE FOR LIFE CAN ASSERT TITLE AGAINST GRANTOR TO

REVERSION-ESTOPPEL.—(1) An exemplified copy of the record of the admission of a will to probate in a Virginia court is not to be received in the courts of the District of Columbia as conclusive proof of the validity of the will and of all matters involved in the probate. The act of Congres declaring the effect to be given in any court within the United States to the records and judicial proceedings of the several States, does not require that they shall have any greater force and efficacy in other courts than in the courts of the States from which they are taken, but only such faith and credit as by law or usage they have there. Any other rule would be repugnant to all principle, and as we said on a former occasion, would contravene the policy of the provisions of the Constitution and laws of the United States on that subject. Board of Public Works v. Columbia College, 17 Wall. 529. The probate in Virginia was sufficient to pass all property which can be there transferred by a valid instrument of that kind. But no greater effect can be given out of Virginia to the proceedings. The probate establishes nothing beyond the validity of the will there. It does not take the place of provisions necessary to its validity as a will of real property in other States, if they are wanting. Its validity as such will in other States depends on its execution in conformity with their laws; and if probate there be also required, such probate must be had before it can be received as evidence. McCormick v. Sullivan, 10 Wheat. 202, and of Darby v. Mayor, id. 468. (2) A party who receives a deed of a life estate, and persons taking a subsequent conveyance in fee from him or his grantees, or deriving title by devise from such grantees are not estopped to deny that the reversion upon the termination of the life estate is vested in the grantor or his heirs. An estoppel in país can arise as between grantor and grantee only where from the relation of the parties there is implied in the acceptance of possession under the deed an obligation to restore the possession on the happening of certain events, or to hold the property for the grantor's benefit or persons designated by him, such as exists from the relation of landlord and tenant, of mortgagor and mortgagee, or the creator of a trust and trustee. Gardner v. Greene, 5 R. I. 110. See also Blight v. Rochester, 7 Wheat. 547; Wilson v. Watkins, 3 Pet. 43; Watkins v. Holman, 16 id. 54. To the general statement of the law there is this qualification, that a grantee cannot dispute his grantor's title at the time of conveyance so as to avoid payment of the purchase-price of the property; nor can the grantee in a contest with another, whilst relying solely upon the title conveyed to him, question its validity when set up by the latter. In other words he cannot assert that the title obtained from his grantor, or through him is sufficient for his protection and not available to his contestant. Where both parties assert title from a common grantor, and no other source, neither can deny that such grantor had a valid title when he executed his conveyance. Ives v. Sawyer, 4 Dev. & Bat. 51, and Gilliam v. Bird, 8 Iredell, 280. The case of Board v. Board, to which counsel refer, was decided on similar grounds; there the defendant in ejectment, claiming as grantee under the devisee of a life estate under a will, was held to be estopped from denying the validity of the will in an action by the grantees of the remainder-man. L. R., 9 Q. B. 48. With exceptions or limitations of this character it will be found on examination of the authorities, particularly those of a modern date, that the doctrine of estoppel in pais

[ocr errors]

however it may have been applied formerly, cannot now be asserted to preclude the grantee from denying his grantor's title and acquiring a superior one, unless there exists such a relation of the parties to each other as would render the proceeding a breach of good faith and common honesty. No such relation exists between grantor and grantee in an absolute conveyance without recital or covenant, whether it be of the fee or of an estate for life. The grantee does not recognize, by the acceptance of such a conveyance of an estate for the life of another, the possession of any greater estate in the grantor, or any obligation to hold the premises for him after the termination of the estate. So far as he is informed by such a conveyance he takes the entire interest of the grantor in the property. He does him therefore no wrong by purchasing any adverse claims which may strengthen his own title, or which may give him a title after the termination of the life estate. Covenants in the instrument intended for him, such as to restore and surrender the premises on the termination of the life estate, or recitals declaring the reversion to be in the grantor or others, would of course change the relations of the parties. Obligations from such covenants or recitals might arise which would control the action of the grantee. Atlantic Dock Co. v. Leavitt, 54 N. Y. 39. By taking a deed poll for life of grantor without covenants or recitals as to any further interest of the grantor or others, no obligation to the grantor could arise, and consequently no estoppel precluding the grantee, and those claiming under him, from accepting conveyances from other sources to strengthen their existing interests or to acquire the reversion, and thus securing to themselves the absolute fee. Osterhout v. Shoemaker, 3 Hill, 518; Sparrow v. Kingman, 1 N. Y. 254. Robertson v. Pickrell. Opinion by Field, J.

[Decided Dec. 17, 1883.]

FORECLOSURE OF RAILROAD MORTGAGE-FRAUD OF DIRECTORS-RIGHT OF STOCKHOLDERS TO INTERVENE -HOW FAR MORTGAGE VALID.-(1) Where the directors of a railroad company were benefited by the issue of bonds secured by mortgage upon the railroad, and when the mortgage was foreclosed, filed an answer confessing plaintiff's right to relief, and the court rendered a decree of foreclosure, and an apparent'sale was had thereunder, this being in pursuance of an agreement with the directors, held that the agreement was immoral and stockholders of the company should be let in to resist the foreclosure. Twin Lick Co. v. Marbury, 91 U. S. 587; Wardell v. Union Pacific R. Co., 4 Dill. 330; S. C., 103 U. S. 631. (2) The bonds were issued in payment of work on the railroad to a specified amount. Held that to the extent of this amount the bonds were valid against the stockholders. See Gardner v. Butler, 30 N. J. Eq. 702. Thomas v. Brownville, Fort Kearney and Pacific Railroad Co. Opinion by Miller, J.

[blocks in formation]
[blocks in formation]

EASEMENT RIGHT OF SUPPORT TO AQUEDUCT NEGLIGENCE LAND OWNERS AND GRANTEES OF QUARRY.-In an action by the owner of an aqueduct against the land owner for damages caused by the working of a lime quarry, held that in regard to an aqueduct as in regard to a way, the owner of the easement may peaceably pursue his right against any obstructions which the land owner throws in the way of its enjoyment. If the blasting in the quarry undermines the aqueduct, he may adopt new means of supporting it in its place; and if a broader base for the new support than the width of the original location of the aqueduct has been rendered necessary by the blasting, it is not a trespass upon the owner of the soil to use his land for that purpose. The aqueduct has the right of support in the laud, and if the blasting under it within the limits of the location by the land owner deprives it of its former support, the right still remains and its enjoyment may be reclaimed with the incidents which necessarily go along with it. Held, also that the defendant was liable for injury done to the aqueduct whether the working of the quarry was negligent or not. Held, also that the defendant was not liable in such a case for injuries occasioned by the acts of his grantees, though holding the quarry under his warranty deed. Rockland Water Co. v. Tillson. Opinion by Symonds, J.

NEGLIGENCE-LIABILITY OF PRINCIPAL FOR ACT OF AGENT-WRONGFUL ARREST.-To hold one responsible for a tort not committed by himself, nor by his orders, his adoption of and assent to the same must be clear and explicit and made with a full knowledge of the tort, or at least of the injured party's claim that there has been one. "Ignorance or misapprehension of any of the essential circumstances relating to the particular transaction alleged to have been ratified will absolve the principal from all liability by reason of any supposed adoption of or assent to the previously unauthorized acts of an agent." Coombs v. Scott, 12 Allen, 493. And this is so even though the ignorance or misapprehension arises from the negligence and omission of the defendant to make any inquiry relative to the subject-matter. Id. To hold one responsible for a tort not committed by his orders, his adoption of and assent to the same must at all events be clear and explicit, and founded on a clear knowledge of the tort which has been committed. Adams v. Freeman, 9 Johns. 117; West v. Shockley, 4 Harring. 287; Kreger v. Osborn, 7 Blackf. 74; Abbot v. Kimall, 19 Vt. 551. And this rule is not affected by the fact that the defendant has received the money coming by means of the tort from his servant. Hyde v. Cooper, 26 Vt. 552. The case was for the arrest of defendant on a writ sued out in the name of the defendant by one C., who acted as agent for defendant. Defendant was not shown to have known any thing in relation to the action, and was held not liable. Tucker v. Jervis. Opinion by Barrows, J.

*To appear in 75 Maine Reports.

MINNESOTA SUPREME COURT ABSTRACT.

was refused. The defendant however has a right to the opinion of every court as to the propriety of his imprisonment." Ex parte Partington, 13 Mees. & W. 679. Matter of Sewell. Opinion by Berry, J. [Decided Sept. 19, 1883.]

CONFLICT OF LAW--TRANSFER BY INSOLVENT LAW OF ANOTHER STATE-VOLUNTARY CONVEYANCE.-A transfer of property effected only by the operation of the insolvent law of a State will not be recognized in another State as being effectual as to property in the latter State, and as against the just claims of its own citizens. The foreign law, in such a case, is accorded no extra-territorial power to divest or transfer property. Hoyt v. Thompson, 5 N. Y. 320, 352; Kelly v. Crapo, 45 id. 86: Caskie v. Webster, 2 Wall. Jr. 131; Burr. Assignm. (4th ed.), § 303. But it is well established as a general rule that a voluntary conveyance of per-Held, sonal property, valid by the law of the place where it is made, passes the title wherever the property may be situated, and that such transfers, upon principles of comity will be recognized as effectual in other States when not opposed to public policy or repugnant to their laws. This principle is applicable in the case of voluntary assignments for the benefit of creditors. Ockerman v. Cross, 54 N. Y. 29; Hanford v. Paine, 32 Vt. 442; Frazier v. Fredericks, 24 N. J. Law, 162. Matter of Page-Sexsmith Lumber Co. Opinion by Dickinson, J.

[Decided Sept. 25, 1883.]

CROP-TITLE OF LANDLORD WHERE TENANT ON SHARES THREATENS TO CONVERT INJUNCTION.-The landlord of a farm let on shares, where the defendant refuses to deliver the landlord's share, but threatens to convert the same, is entitled to an injunction restraining him from disposing of the share of the land. lord, especially if the defendant is without property except such as is exempt by law. The contract was an ordinary letting on shares, and whatever relations it created between the parties as to the land, it constituted the owner of the land and the cropper tenants in common of the crops. Moulton v. Robinson, 27 N. H. 550. If so the plaintiff was clearly entitled to the relief prayed for. But even if the title to the crops was wholly in the defendant, and that the one-third was to be paid expressly as rent in kind, this action would still lie, in view of the fact that defendant had no tangible property which could be made subject to attachment or execution, and hence that an action at law would be unavailing. Gregory v. Hay, 3 Cal. 332. Schmitt v. Cassilius. Opinion by Vandenburgh, J. [Decided July 17, 1883.]

HABEAS CORPUS-DISCHARGE OF ONE WRIT NOT BAR TO ANOTHER WRIT.-The sound rule, and that supported by a great weight of long-standing authority, is that the decision upon habeas corpus of one court or officer refusing to discharge a petitioner is not a bar to the issue of another writ upon such petitioner's application upon the same state of facts as at first, to another court or officer, and to a hearing or a discharge thereupon. A decision under one writ of habeas corpus, refusing to discharge a prisoner, does not bar the issuing of a second writ by another court or officer. People v. Brady, 56 N. Y. 192. This would appear to overrule the intimations of earlier New York authorities. A decision under the writ of a habeas corpus, refusing the discharge of a prisoner, is no bar to the issuing of any number of other successive writs by any court or magistrate having jurisdiction. Ex parte Kaine, 3 Blatchf. 1. "I feel no difficulty in delivering the opinion which I entertain, because the prisoner will not be concluded by it, but may, if he be dissatisfied, apply to the other courts of Westminster Hall." 1 East, 314, per Lord Kenyon. "This case has already been before the Queen's Bench on the return of a habeas corpus, and before my lord chief baron, at chambers, on a subsequent application for a similar writ. In both instances the discharge

[ocr errors]

INJUNCTION-BUILDING ERECTED ON LAND INEFFECTIVELY CONVEYED MAY BE REMOVED-LICENSE.Plaintiff by deed attempted to convey to a church society a lot of ground on which to build a church. By reason of non compliance with the statute the deed was not effectual to convey the title. The church association however erected a church on the land and afterward began to remove the same to another place. that plaintiff was not entitled to an injunction restraining such removal. Where the authority for placing a building upon the land of another rests upon his license, and the consideration of the case is uninfluenced by the unreasonable laches of the licensee, or other special circumstances, he is regarded as continuing to be the owner of the building, and equitably entitled to remove the same if he elects, and if such removal be practicable, and works no serions injury to the land or premises of the licensor to which it was annexed. 2 Am. Lead. Cas. (5th ed.) 561-563; Keyser v. School-district, 35 N. H. 480; Dame v. Dame, 38 N. Y.431; Barnes v. Barnes, 6 Vt. 394; Wilgus v.Gettings, 21 Iowa, 180; Northern R. Co. v. Canton Co., 30 Md. 353; Fuller v. Tabor, 39 Me. 519; Dietrich v. Murdock, 42 Mo. 285; Bachelder v. Wakefield, 8 Cush. 243; Curtis v. Riddle, 7 Allen, 187; Howard v. Fessenden, 14 id. 128; Weathersby v. Sleeper, 42 Miss. 742; Witherspoon v. Nickels, 27 Ark. 333. Little v. Willford. Opinion by Vandenburgh, J.

[Decided Oct. 17, 1882.]

RECENT ENGLISH DECISIONS

ATTORNEY-HAS NO PRIVILEGE FROM ARREST FOR CONTEMPT.-A solicitor who obeys an order of the court made against him as an officer of the court commits a contempt of a criminal nature, and no privilege from arrest exists or can be claimed against the execu tion of an attachment issued to enforce such an order of the court. Privilege from arrest can be claimed in respect of attendance as an advocate at a police court during the preliminary inquiry into a charge of felony, provided the privilege otherwise exists. An order was made against F., a solicitor, as an officer of the court, that he should deliver up certain documents, and that he should pay a sum of 107. and costs. He delivered up the documents, but did not pay the sum of 10%. Upon an order of attachment being made, he paid the sum of 107., but did not pay the costs. He was arrested upon the attachment while returning from a police court, where he had been attending as advocate to defend certain persons charged with felony. Held, that he was not entitled to be discharged on the ground of privilege from arrest, inasmuch as the contempt for which the attachment had issued was a contempt of a criminal nature. Ct. of App., May 24, 1883. Matter of Freston. Opinions by Brett, M. R., and Lindley and Fry, L. JJ. (49 L. T. Rep. [N. S.] 290.)

DEFINITION-MEANING OF SOLE AND UNMARRIED" IN WILL.-A testatrix bequeathed her estate upon trust to pay the income to her husband for life, and after his decease to divide the same into four parts, and stand possessed of one of such parts upon trust to pay the same to J., spinster, "if she should be then sole and unmarried, but if she should be then married," upon trust to pay her the income for her separ ate use for life, and after her death upon trust for her children, with other gifts over in default of children. The will was dated in 1860, H. married in 1861, the

[ocr errors]

testatrix died in June, 1878, and her husband died in April, 1883. A decree nisi for the dissolution of the marriage of J. was pronounced in February, 1878, and made absolute in November, 1878, there having been three children of the marriage, all of whom were still living. J. had not been married again at the death of the tenant for life. Held, that the meaning of "sole and unmarried" was "not being under Coverture," and that therefore in the events which had happened, J. was absolutely entitled to the one-fourth share. Ch. Div., August 6, 1883. Matter of Lesingham's Trusts. Opinion by North, J. (49 L. T. Rep. [N. 8.1235.)

EMINENT DOMAIN ACQUIRE RIGHT TO

RAILWAY COMPANY DOES NOT
SUBJACENT SUPPORT AGAINST

MINE OWNER.-Where a railway company has compulsorily purchased land with mines and minerals subjacont thereto, and subsequently sells a portion thereof as superfluous land, the purchaser from the railway company does not acquire the right of subjacent support for his surface as against the owner of the mines and minerals, and therefore cannot maintain an action for damages against the mine owner for so working his mines as to cause injury to the surface and the buildings erected thereon. Ct. of App., April 20, 1883. Pountney v. Clayton. Opinions by Brett, M. R., and Bowen, L. J. (49 L. T. Rep. [N. S.] 283.)

TRADE-MARK-INNOCENT PURCHASER FOR PRIVATE USE LIABLE FOR INFRINGEMENT.-In an action by a firm of cigar manufacturers for an injunction to restrain the defendant, who had bought 5,000 cigars for private purposes, from selling or parting with them in boxes bearing a colorable imitation of the plaintiffs' registered mark or brand; for the destruction of the boxes, and for damages; and where the plaintiffs on having learnt that the boxes bearing the spurious marks were warehoused at the docks to the order of the defendant, had served him with the writ in the present action without notice; and where the defendant had already assented to an order being made against him in the terms asked by the plaintiffs; the defendant moved the court that he might not be compelled to pay the plaintiffs' costs as he was ignorant of all matters concerning the alleged spurious trademarks, and was an innocent purchaser of cigars for his own private purposes, and had committed no infringement. Held, that the defendant had used the plaintiffs' particular trade-mark, and was guilty of infringement; that it was not necessary and would have been unwise of the plaintiffs to have given the defendant notice before the issue of their writ in this action; that though the defendant might be an innocent purchaser, and never have intended to infringe the plaintiffs' trade-mark, he must pay the plaintiffs' costs. Ch. Div., June 22, 1883. Upmann v. Forester. Opinion by Chitty, J. (49 L. T. Rep. [N. S.] 122.)

CONFLICT OF LAW-LEGACY TO ALIEN FEMALE INFANTS MARRIED.-A legacy had been paid into court to which, on the death of the tenant for life, two female infants, who were French subjects by birth, and resident in France, became absolutely entitled. They were both married, and by the French law, under the settlements made on their respective marriages, their husbands were absolutely entitled to receive their shares of the fund. One of the infants had since atlained twenty-one Held, that the infants not being subjects of or domiciled or resident in England, the court had a discretion as to whether or not they should be treated as wards of court, and that the money might therefore be paid out to the husbands. Ch. Div., Aug. 3, 1883. Brown v. Collins. Opinion by Kay, J. (49 L. T. Rep. [N. S.] 329.)

[ocr errors]

A person

COPYRIGHT-AUTHOR OF PHOTOGRAPH. who is merely the proprietor of a photographic establishment, and who employs a staff of servants (payingthem wages or salaries) for the purpose of taking photographs, and provides the materials for taking and making them, is not the author or joint-author with his servants, of any photograph so taken and made by any one or more of them, within section 1, of the Copyright Act of 1862. Decision of Field, J., affirmed. The author of a photograph is the person who most effectively contributed to the result, that is the person who directed his mind toward and superintended the particular arrangements which have actually resulted in the formation of the picture; and who that person is, is a question of fact in each particular case. Ct. of App., August 2, 1883. Noltage v. Jackson. Opinion by Brett, M. R., and Cotton and Brown, L. JJ. (49 T. Rep. [N. S.] 339).

CRIMINAL LAW.

BRIBERY- INDICTMENT FOR OFFERING BRIBE TO LEGISLATOR-CORPORATE STOCK.-(1) An indictment, under section 6900, Ohio Revised Statutes, which charges that defendant corruptly offered and promised to B., a member of the House of Representatives of the General Assembly of the State, with the intent to corruptly and feloniously influence his vote upon a certain bill then pending in such house, “ a valuable thing, to wit: Stock of the Cincinnati Union Railway Co., of the amount and value of $20,000, and a large amount of money of great value," is not bad for uncertainty. It is not necessary, in addition to such allegation, to recite the facts which give the thing offered a value, nor to charge that a definite sum of money was offered. (2) To charge the jury in a trial upon such indictment, that the thing offered or promised must have a value at the very time it is offered or promised, and while the bill is pending, is error, but not to the prejudice of the defendant. It is a crime, under section 6900, to offer or promise a thing valuable at that time, or which will be valuable, when according to the promise, it is to be given or delivered. Ohio Supreme Court, Jan. Term, 1883. Watson v. State of Ohio. Opinion by Doyle, J. (39 Ohio St. 123.)

LARCENY-POSSESSION OF RECENTLY STOLEN GOODS AS EVIDENCE.-Where the defendant is apprehended immediately after the larceny, with the stolen goods in his possession, it is a violent presumption of his having stolen them, and the court should instruct the jury, that in law he is guilty. Where he is found in possession some time after the larceny, and refuses to account therefor, it is a probable presumption, and a question of fact for the jury. But where he is not found in possession recently after the loss (here eighteen months), it is a light or rash presumption, and not sufficient to warrant conviction, unless the attending circumstances tend to implicate the defendant in the larceny, as where he makes false statements in respect to his possession. North Carolina Supreme Court, Feb. Term, 1883. State of North Carolina v. Jennett Opinion by Ashe, J. (88 N. C. 665.)

POST-OFFICE-USING MAILS FOR FRAUD.-An attempt to defraud a creditor by inclosing with a letter to him worthless slips of paper in place of money, stated by such letter to be inclosed therewith, and seuding such letter and inclosed slips to such creditor

through the mail, is not an indictable offense under section 5480 of the Revised Statutes. U. S. Dist. Ct., E. D. Missouri, July 3, 1883. United States v. Owens. Opinion by Treate, J. (17 F. R. 71.)

CHALLENGES ΤΟ JURY

DEFENDANTS

TRIAL JOINTLY TRIED.-Where two defendants are jointly charged in one information, with a misdemeanor, and being refused a separation are put on trial together, each is entitled to the same number of peremptory challenges he would be entitled to if tried separately. In United States v. Marchant, 12 Wheat. 480, it is said: “Upon a joint trial, each prisoner may challenge his full number, and every juror challenged as to one is withdrawn from the panel as to all the prisoners on the trial; and thus, in effect, the prisoners in such a case possess the power of peremptory challenge to the aggregate of the numbers to which they are respectively entitled. This is the rule clearly laid down by Lord Coke, Lord Hale, and Serjeant Hawkins, and indeed by all the elementary writers." In State v. Stoughton, 51 Vt. 362, it was held that one indicted with others does not waive his right to the statutory number of peremptory challenges by consenting to be tried with them. If one consenting to a joint trial does not waive this right, a fortiori, one who is compelled against his will to a joint trial ought not to be deprived of it. In Cruce v. State, 59 Ga. 83, it was held by a majority of the court that each of two defendants jointly tried was entitled to the full number of peremptory challenges. See also Smith v. State, 57 Miss. 822; Bixbee v. State, 6 Ohio, 86; Mahan v. State, 10 id. 233; 1 Bishop Cr. Pro., § 967. In Stroh v. Hinch- | man, 37 Mich. 490, it was held under a statute such as Mich. Comp. Laws, 6027, that in all civil cases each party may challenge peremptorily two jurors; and when several defendants unite in one plea and defeuse, and appear by the same counsel, two challenges to all the defendants are all that need be allowed. But where two defendants sever in pleas, and appear by different counsel to litigate antagonistic defenses, each must be deemed a "party" within the enactment, and entitled to two challenges. See also Sodousky v. McGee, 4 J. J. Marsh. 267; Reynolds v. Rowley,2 La. Ann. 890; Stone v. Segur, 11 Allen, 868; Hill v. State, 2 Yerg. 246; Blackburn v. Hays, 4 Coldw. 227; Wiggins v. State, 1 Lea (Tenn.), 738. Kansas Supreme Court, January Term, 1883. State of Kansas v. Durien. Opinion by Brewer, J. (29 Kan. 688.)

CORRESPONDENCE.

RELIEF OF THE COURT OF APPEALS.

Editor of the Albany Law Journal:

I have read with interest the various projects advanced by correspondents of your paper, for the relief of the Court of Appeals. It seems to me that the real remedy of the evil is to be found, not in increasing the number of judges or in dividing their duties, but in preventing the accumulations of so many appeals. Without knowing the exact proportion I should say that nearly two-thirds of the appeals come from the first department in New York city, and fully one-half of such cases are reversed. This shows that something is wrong in this department, and the fact is made much more apparent by an attendance upon the business of this department for a short time. The way in which cases are decided at General Term here is the cause of wide and growing discontent among these members of the bar who are unfortunate enough to be obliged to bring appeals in this department. The judges are arbitrary, they limit the time of counsel un

necessarily, and act as though hearing the argument were a matter of favor and not a right. They decide frequently upon the mere oral statement of the case, and without looking at the cases and points, and they take every opportunity to snub the younger members of the bar. There is no confidence in the decisions at General term, and this bench think nothing of holding diametrically opposed views on the same legal question during the same week. It is frequently remarked that lawyers, no matter how good their case is, expect to be beaten, and anticipate an appeal to the higher court, which they are beginning to regard as a matter of course if the question or the amount involved is of any importance. We suppose that the inefficiency of the judges is largely due to the immense amount of business they are called upon to transact. If the first judicial department were divided, so that two or even three General Terms could be held, the judges would have time enough at least to read the printed papers presented, and the bar would have some respect for the decisions rendered. The number of reversals would diminish, and consequently the number of appeals.

NEW YORK, Jan. 29, 1884.

Respectfully,

JNO. G. YEATMAN.

THE UNITED STATES SUPREME COURT REPORTS. Editor of the Albany Law Journal:

Permit me through your valuable medium to congratulate the profession most warmly on the great gain and advantage accruing to it by reason of the new departure in Supreme Court reporting. Here we have, January 15, 1884, eleven opinions, average nine pages each, just about eighty days after filing of the last thereof, set up and printed, not to mention the accompanying invaluable head-notes. Take the first head-note for instance. Osborne v. Adams Co. It fills the exact requirements of the true head-note; merely read it over and you see at once that by no human possibility could any lawyer ever need the case as an authority on any point. To be sure this suggests another query, but that involves one of two suppositions, both of which must be rejected. To say that another periodical had given us six of these eleven opinions on November 8, 1883, four more on November 28, 1883, and the remaining one on December 8, 1883, and had incidentally supplied us down to the date of the "Part I.," with the opinions in sixty-four more causes, would manifestly be unjust and unfair.

Also may I inquire whether the expression, "the statement of facts appears fully in the opinion," is an exact equivalent for the expression, "The facts of (in) the case appear, etc." This may seem hypercritical, but we are entitled to demand the highest class of work from the official reporters of that court if of no other.

Now it may be urged that the periodical gives but a hasty report and inaccurate head-notes, and that the. value and advantage in these respects of the regular reports fully compensates for the waiting. If any one is of this opinion let him compare word by word the syllabus of the "Civil Rights Cases" in the periodical, and in the regular report (and it is submitted that no more important cases than the "Civil Rights Cases" are liable to come up at least commonly), and he will see his theory at its vanishing point. It would seem as though in these progressive days the public should be better served than official reporters appointed for reasons of State" scem inclined to serve it. Yours respectfully,

[ocr errors]

NEW YORK, Jan. 19, 1884.

CHAS. STEWART DAVISON.

« ÀÌÀü°è¼Ó »