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Now flush'd with manhood's vig'rous bloom,
That sheds a sweet aroma,
He marches forth to fight for fame,
The weapon his diploma.

He enters now the district school,
To be a famous teacher,

But soon concludes 'twere better far,
To be a noted preacher.

But when compelled a choice to make,
Among the many roads,

He finds that one and only one,
Can reach the blest abodes.

While on the guide-board of each creed
Is marked man's destination,
Each preacher claiming his own road,
Secures the soul's salvation;

While all the rest lead straight to hell,
Tho' with the best intention,
Where souls immortal suffer pains,
No human tongue should mention.

The risk so great of being wrong,
'Tis truly most appalling.
He then resolves without delay
To seek some other calling.

He turns to law, and straightway reads,
Blackstone and Kent and Chitty,
Then crams himself with precedents,
Prosy and wise, and witty.
The Code of eighteen forty-eight,
He masters ev'ry section,

And feels that now he has made sure
His calling and election.

At Gen'ral Term he then applies,
Is readily admitted,

To practice law in all the courts,
His license thus permitted.

An office then is sought and found,
And outside hung his shingle,
He's now prepared to serve the world,
With eye to business single.

For weeks he walks his office floor,
Both bold and self reliant,
And lo! his heart begins to sink,
For he has found no client.

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 purse-
His heart gives way to fears.

His honor 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 pleading, The judge assigns 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.

His manhood's roused, his soul on fire,
'Tis not for gold or glory,

His noble heart then pleads her cause,
Tells her pathetic story.

The judge and jury are in tears,

And hardened men are weeping,

While all thank God her cause was placed
In such a worthy keeping.

The judge delivers next his charge,
The jury now retire,

And our young lawyer's manly speech,
The people all admire.

The jury quick returns to court,
And soon are in their places,
The verdict's read by ev'ry one,
Upon their glowing faces.
"Not guilty," the foreman says;
The people all are cheering,
The advocate has won their hearts,
And praises most endearing.

His office soon is overrun,

No waiting now for clients,

His mark he's made, and he's prepared

To tussle with the giants.

He earns an honest livelihood,

Is honored and respected,

Of fraud or wrong his skirts are clear,
He never is suspected.

Long years he leads a busy life,

Down to the present moment, And here he sits with harness on,

Apparently somnolent.

And can it be with thoughts like these,
His busy brain is teeming,

Or with that cold and vacant stare,
He now is only dreaming?

I call his name, he answers not,
Then proffer a retainer;

His hand is still, he must be dead,
Nothing can be plainer.

The coroner sat on the case,

A jury was selected,

And soon the cause of his demise

Was easily detected.

The doctors a post-mortem made,

And found-tho' loath to tell 'em,

Three thousand sections of Throop's Code Lodged in his cerebellum.

And out of mercy to the bar,

They made the wise suggestion, Which by the jury was indorsed, "He died from indigestion." ALBANY, Feb., 1884.

CORRESPONDENCE.

A. B. PRATT.

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 than thereby fixed, the term includes all that period commencing the 1st of January following the election down to the end of the fourteenth successive year.

The addition to the Constitution providing for the election of additional justices simply provides that "the justices so elected shall be invested with their offices on the first Monday of June next after their election." Burrill defines "invest as follows: "To give possession, to put into possession, to put one in possession of a fee, estate or office newly acquired. To clothe with possession, to clothe possession with the solemnities of law." Investing a person with office therefore simply means formally and officially conducting him into the office he has acquired. This formal ceremony, this investing with office, generally takes place at the commencement of the term, hence the one is apt to be confounded with the other. But the distinction is obvious. Take for instance two men, both of whom claim to have been elected to a certain office. The one is invested therewith, the other attacks the title of the occupant, succeeds and ousts him; he in turn becomes invested with the office. In such a case can there be any question as to when his term of office commences, and yet he is invested with it at a subsequent date. Again on the death of the president of the United States, the vice-president, eo instanter, becomes president thereof, but the formal ceremony of investing him with his office is postponed until a subsequent date. Section 4 of article 14, recognizes this distinction by providing for the first election of judges thereunder, and further providing that they shall enter on their duties the first Monday of the following July "but the term of office shall be deemed to commence on the first day of January, 1848." What the idea was in deferring the time of investiture for some months after the commencement of the term it is unnecessary to consider. We have only to deal with the law as we find it.

And if this view of the law as it stands is correct, in what position does it place the two gentlemen who were elected to the position in the first department last fall? At the time of their election they each held a public office which they have not yet resigned, but are still holding and performing the duties thereof. Have they not elected to retain the same? The Constitution provides that "the justices of the Supreme Court shall not hold any other office or public trust." If these gentlemen are able to hold a public office during any part of their term of justiceship, then what is the use of this clause in the Constitution? Here is a question for the corporation counsel to argue and for Judge Van Brunt to decide.

THE

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HE following decisions were handed down Tuesday, February 26, 1884.

Judgment of General Term so far as it reverses or modifies the decree of the surrogate reversed, and the decree of the surrogate in all respects affirmed, costs of contestants and of Martin Brimmer at General Term and in this court to be paid out of the estateCornelia W. Adair, et al., appellants, v. Martin Brimmer et al., respondent.-Judgment reversed, new trial granted, costs to abide the event-Casendania Sanford and another, respondents, v. Thomus D. Elithrop and others, appellants; Thomas S. Sutherland, appellant, v. John J. Olcott and another, exrs., respondents; Robert A. Snyder and another, exrs., etc., respondents, v. Atlantic Mutual Ins. Co., appellant; William E. Leavitt, exr., etc., respondent, v. Henry G. Wolcott and another, exrs., etc., appellants.-Jud

ment affirmed with costs against the appellant—Ann Reese, respondent, v. William Smyth, Acting Superintendent of Insurance, appellant. Judgment of General Term and decree of surrogate reversed and case remitted to surrogate for further proceedings in accordance with this opinion, costs of both parties to be paid out of the estate-In re Account of James Hughes, admr., etc.--Order reversed and judgment of Special Term affirmed-Jacob K. Lockman, exr., etc.. appellant, v. Thomas J. Reilly, respondent. Judgment affirmed with costs-Mary Jane Peek, ex'x, appellant, v. Patrick Callaghan, respondent; Martin Cain, admr., etc., appellant, v. City of Syracuse, respondent; Nassau Bank, appellant, v. John J. Jones, exr., etc., respondent; Wm. H. Crossman and others, appellants, v. Henry C. Crossman and others, respond. ents; Ida Mabie, respondent, v. Lewis H. Bailey, exr., etc., appellant; Henry Heinrich and another, exrs. etc., respondent, v. Wm. T. A. Hart, appellant; Paul Cal laghan, admr., etc., respondent, v. Rome, Watertown & Ogdensburg R. Ro., appellant; John L. Sutherland, exr., and another, respondent, v. Lauren C. Woodruff, appellant (two cases).-Judgment of Special and General Terms reversed, and the decree of the court below modified so as to deelare the tenth clause of the will to be void and direct payment of bequest to the defendant as residuary legatee, costs of both parties to be paid out of the estate-Wm. M. Prichard and another, exrs., respondents, v. John B. Thompson, individually and another, exr., appellants. Judgment below modified in accordance with opinion, and as modified, affirmed without costs to either party-Elizabeth M. Cook, an infant, respondent and appellant, v. Alex. M. Lowry, appellant and respondent.-Order affirmed with costs-People ex rel. Walter E. Smith, respondent, v. Charles Geetum and another, impld., etc., appellants.Judgment of General Term reversed; that of Special Term affirmed with costs-In re Application of Emily P. Woolsey and another, etc., respondent, v. W. Remsen Taylor and others, comrs., etc., appellants. Judgment of General and Special Terms reversed and judgment ordered for the defendants, dismissing the complaint with costs-Mary N. Johnson, x'ex, etc., respondent, v. John I. Lawrence and another., surv's, etc., and others.-Judgment modified by reducing the rate of interest one per cent from June 1, 1880, to September 14, 1881, and as modified affirmed with costs-Farlin Bull, exr., etc., respondent, v. Russell B. Biddlecom and ano., ex'rs, etc.,applts.Affirmed on opinion in Tillman v. Davis, with costs to both parties out of the estate Frederick Loomis, trustee, v. G. Byron Doud, adm'r, appellant, and George A. White, and another, respondents.- Judgment affirmed with costs against the appellant personally-Albert F. Gladding, exr., tr., appellant, v. Louisa F. Follett, respondent.-Judgment of General Term reversed; that of Special Term modified so as to conform to the opinion, costs of all parties upon appeals to the General Term and to this court to be paid out of the estate-Louisa J. Hollis, ind., and as exr., respondent, v. Georye Hollis and others, appellants. -Judgment affirmed, and judgment absolute ordered for the respondent, on the stipulation for $7,669.43 with interest from June 25, 1879, and $3,799 with interest for the same time, with costs-Josephine Todd, respondent, v. Albert Weber, Jr., et al. exrs., appellants.

-Judgment affirmed-The People, respondents, v. John M. Meyers, appellant.-Judgment of General Term affirmed; costs of both parties to be paid out of the fund-Nancy Watts and another, respondents v. James Ronald, exr., appellant.-Judgment of General Term and decree of surrogate reversed and a new hearing ordered before the surrogate, costs of the party finally prevailing to be paid out of the estateBenjamin Wooley, exr., appellant, v. Sarah E. Wooley and another., respondents.

The Albany Law Journal.

THE

ALBANY, MARCH 8, 1884.

CURRENT TOPICS.

HE Tribune publishes a corrected summary of the results of its postal-card inquiry of the lawyers upon codification: "The three questions to be answered were as follows: 1. Are you in favor of the codification of the common law in this State? 2. Are you in favor of the Field Civil Code? 3. Why? The answers are classified as follows: First

Those that answered 'Yes' to the first question and 'Yes' to the second, and who did not answer the third. Second-Those that answered 'No' to the first two questions, but who did not answer the third. Third-Those that answered 'Yes' to the first and 'No' to the second, with or without answer to the third question. Fourth Those that answered 'Yes' to the first, gave no answer to the second, with or without answer to the third. Fifth-Those that answered the first two questions in the affirmative and gave their reasons. Sixth-Those that answered the first two questions in the negative and gave their reasons. Following are the numbers in each class: Class number 1, 53; class number 2, 138; class number 3, 75; class number 4, 201; class number 5, 311; class number 6, 431; total, 1,209. Recapitulation: Total number in favor of codification, 640; total number in favor of Field Code, 364; total number opposed to codification, 569; total number opposed to Field Code, 644; majority declaring in favor of codification, 71; majority declaring themselves opposed to Field Code, 280; majority of those opposed to Field Code over those in favor of codification, 4; number not expressing opinion on Field Code, 201."

As we have said before, the significance of this result depends upon two unknown factors, namely, first, how many of those expressing an opinion on the Field Code have read it, and second, who they are and where they live; i. e., how many of them are outside the New York City Bar Association. Not that we by any means believe that a majority of that association are opposed to codification or the Field Code; on the contrary we believe that on a full vote a majority would be the other way; but no doubt a majority of those most active in its management and most constant in attendance are opposed to codification. We wish the Tribune would institute a postal-card inquiry among the clients of those 1,200 lawyers. We think they would prefer written laws, and certainly their opinion should have greater weight than that of their attorneys.

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rights," containing 867 sections and covering 267 pages. The subjects covered are real property, personal property, express contracts, wills, etc., receivers and trustees, time, weights, measures, money and interest, commercial and industrial relations, domestic relations, definitions, etc. The bill has been recommitted, and wisely, we think. We have had time and now have space to refer only to a few of its provisions which we think unwise. And first we refer to § 379 to amend the statute of frauds. It reads as follows: "The last two sections apply, although the goods and chattels are intended to be delivered at a future time, or are not, at the time of the contract, actually made, procured or provided, or fit or ready for delivery; or some act is requisite for the making or completing thereof, or rendering the same fit for delivery." This is designed to embrace a contract of manufacture as well as a contract of sale. Doubtless it is often very difficult to distinguish between the two classes; witness the case in our Court of Appeals of sale of a mortuary monument, to be lettered and somewhat modified and added to. But this inconvenience can better be borne than the enormous inconvenience which would be entailed by the proposed rule. It would be insupportable, for example, if a man could not bind himself to pay for a suit of clothes worth $60 without signing a written contract. No law can be conceived that would increase litigation more than this, for it would be a practical dead letter in trade, and a standing invitation to tradesmen and customers to avoid their contracts.

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Again § 64 proposes to do away with tenancy by entirety, and to make the provision retroactive. Four judges of the Court of Appeals were of opinion, in Meeker v. Wright, 76 N. Y. 262, that the tenancy was abolished by implication by the married woman's acts, but the contrary was authoritatively held in Bertles v. Nunan, 92 N. Y. 152. It might be well enough — indeed, we think more consistent with the theory of the married woman's act to abolish this tenancy prospectively, but why should it be made retroactive? An immense amount of property is now held in this State under this tenure, and there would be little justice and no good purpose in unsettling it. There is a vast difference between a law declaring that the property which a wife'owned at the time of marriage shall be her separate property after marriage, and a law declaring that property deeded so that the husband shall have the title by survivorship shall not be his but shall be in common. the Daily Register well says, this is equivalent to declaring that "the property of A. shall be henceforth deemed to be the property of B." Besides, is not tenancy by entirety a vested right by contract, which the Legislature cannot constitutionally take away? This question did not arise in Meeker v. Wright or Bertles v. Nunan, as the conveyances there were subsequent to the married woman's acts. We are not positive about this, and perhaps Senator Gilbert has considered it.

As

Opposed to codification, or at least to Mr. Field's Code, as Senator Gilbert is known to be, he still believes in "definitions," and his bill contains a number of them. Even "vessel " is here defined,"every structure, complete or incomplete, intended to float the waters." upon We hardly know whether this will satisfy Prof. Dwight. It does not greatly differ from Mr. Field's "a structure fitted for navigation." We call Prof. Dwight's attention to it, and hope he will see that it does not infringe upon the "nautilus." He may think that it includes "the tiniest boat or a child's toy." And does it not include a buoy? We greatly fear that it does-if not a life preserver.

But the bill recognizes the office and usefulness of codification by reducing to a statutory form many clear decisions of the courts and many others that are conflicting. Our radical objection to the whole bill, if it is designed as a substitute for a code, is that it is too detailed. What can be said in favor of a code containing such enactments as the following ?-"The half-bushel is the unit of measure of capacity, for substances other than liquids;"-(we are glad to know that whisky is not to be sold by the bushel)"but for convenience, the measure of such substances, when it exceeds two half-bushels, may be expressed in bushels, each consisting of two halfbushels." "A commodity, sold by heap-measure, must be heaped up as high as its nature permits, in the form of a cone, whose base is limited by the outside of the top of the measure used." (It would be pretty difficult for the base to get outside of it, we should think, although it might not extend to it.) 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, andirons, coal scuttle, shovel, tongs, lamp, and candlestick shall be exempt from execution. These are but samples. All this sort of thing is proper for statutes, but is no proper part of the organic law.

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In spite of his disclaimer, we must continue to believe that the editor of the Central Law Journal carries a pistol, when he talks about "driving us "to the wall." As our brother hates gowns so, he should never be heard to say any thing about "soiling the judicial ermine," but he should substitute "Newmarket," or "cut-away," or something like that. But let him come hither laying aside that it to say, if it is deadly-and we will show him our judges in their gowns, and that there is nothing dreadful in the sight.

his weapon

Speaking of Mr. Croly and his objection to the office of attorney-general and to lawyers in general, the Telegram, published at Snow Hill, N. C., very sensibly remarks: "It is necessary that men who have made the science of law more or less a study, should make and expound the laws or all would be chaos and confusion. If the people are tired of

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lawyers why do they not dispense with their services? There is no law compelling any one to employ counsel; there is a book entitled 'Every man his own lawyer.' Lawyers never intrude their services, but they are sought after, and will be as long as civil liberty has a place on earth. * Mr. Croly used to be the editor of the World, and did lawyers write for his paper simply because they were lawyers; or was it because they had something to say and knew how to say it? Sir William Blackstone, a great many years ago, suggested that it would be desirable for every gentleman to study the laws of his country, so that he might take an intelligent part in the making and executing the laws thereof; but we believe that so far very few have seen fit to take advantage of his suggestion; about ten thousand in this country of fifty-six millions of souls, we believe, Mr. Croly estimates them to be. We don't believe the law is a blundering profession, and we would watch a lawyer very closely, who said that he did. Lawyers as a general rule have the utmost confidence in each other's integrity, and so far as we have been able to judge, their clients trust them implicitly; this confidence may sometimes be abused, but we, after a practice of ten years, cannot recall a single well-authenticated charge to have been made against a lawyer. Isn't it because of their well-grounded knowledge of the laws, and their well-known integrity that they exert such an influence over the nation? The relief that the ALBANY LAW JOURNAL would offer to this lawyer-ridden people, is, a written system of laws; and whom would it have write them? David Dudley Field a lawyer." We commend this voice from North Carolina to the lawyer-phobist of the Troy Daily Times.

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IN

NOTES OF CASES.

'N Briesen v. Long Island R. Co., 81 Hun, 112, it was held that where a railroad company has 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 outgoing trains, and such drilling operations as are absolutely necessary to the proper transaction of its business, using due skill and care and all the appliances and machinery required by law, it is not liable to the owner of abutting property for the injury and damages which may be caused thereto by such use. The court said: "It may be stated, as a general rule of law in this State, that what is done by the sanction of the State under legislative authority is completely justified when done without negligence or fault. Radcliff's Executors v. Mayor, 4 Coms. 195. It was decided in that case where persons are authorized by the Legislature to do certain things they are not responsible for consequential damages where they act with prudence and care. In no proper or strict sense can this railroad be termed a nuisance, when managed without negligence or willful misconduct. Its construction was authorized by sovereign power for purposes of public utility

and its operation is lawful because it is in pursuance of a statutory license. So long as it is kept within the scope of the powers granted to it, it is protected from all legal proceedings. This remark however is subject to the qualification that the resulting injury arises as a natural result of the exercise of the statutory authority. In the case of Bellemont and Ohio Company v. Fifth Baptist Church, 27 Alb. Law Jour. 488, the Supreme Court of the United States laid down a different rule of law; but as we understand the law to be settled in the courts of this State as we have stated it here, we feel bound to follow our own rule until our highest appellate courts shall declare a different rule."

In Mullen v. Platt, 31 Hun, 121, it was held that a married woman is personally liable for the value of services rendered by a music teacher, at her request, to her daughters, and for the value of sheet music furnished by him to them while giving them instructions in music. The court said: "Married women have been held liable on contracts similar to this. In Tiemeyer v. Turnquist, 85 N. Y. 516; S. C., 39 Am. Rep. 674, the Court of Appeals held a married woman liable for groceries bought on her credit to be consumed by her family, including her husband. In the case of Conlin v. Cantrell, 64 N. Y. 217, the same court held a married woman liable on a contract for services of a seamstress to do work for herself and her children." But it was held in White v. Story, 43 Barb. 124, that a married woman is not liable to pay for a wedding supper of her daughter, although she ordered it, and afterward promised to pay for it. Flynn v. Messenger, 28 Minn. 208; S. C., 41 Am. Rep. 279, seems opposed to the principal case. If the station of the parties was such as to render the services and goods necessaries, the wife certainly was not liable for them on her bare request.

In Seybolt v. New York, etc., R. Co., 31 Hun, 100, it was held that a United States postal clerk travelling in a postal car, free under the mail contract, is to be regarded as a passenger, and the railroad company is liable for his death by its negligence, although the pass issued by the company contained a condition waiving such right. The court said: "The deceased was a postal clerk, and the defendant was a carrier of the mails for the government by contract. It was a part of this contract that the postal clerks should be carried free. In such cases the clerks are passengers and entitled to protection as such. Blair v. Erie Railway, 66 N. Y. 313. The clerk was not travelling upon a free pass. The government officers made requisition for passes under the contract, and the defendant sent one with a condition upon the back of the pass making the recipient agree to waive his right to sue for injuries occasioned by the negligence of the railroad company. This was not a part of the contract between the government and the defendant, nor of the contract between the government and the deceased.

There was no basis for such a restriction upon the carrying of the clerk." Dyckman, J., dissented, observing: "The deceased man received and accepted this pass containing this language, and was in possession of it at the time of his death. Such acceptance constituted a contract between him and the company, by which he waived liabil ity by reason of negligence. Our conclusion therefore is, that the plaintiff cannot avail herself of the contract between the government and the defendant, because it was not made with or for the deceased; and that although the defendant owed the deceased the duty of care because it had undertaken to carry him, and he was rightfully on the train, the performance of that duty was waived by the acceptance and use of the pass containing the stipulation for exemption." See Penn. R. Co. v. Price, 96 Penn. St. 256; S. C., Alb. Law Jour. 69.

In People v. Woodward, 31 Hun, 57, it was held that taking a horse from another's stable, killing it, and burying it in a pit does not necessarily constitute larceny. The court said: "Upon the evidence it is certainly a grave question whether the act charged and proved was larceny or malicious mischief. To constitute larceny there must have been a felonious intent, animo furandi or lucri causa. The malicious killing of a horse is a misdemeanor. (Penal Code, § 654; 2 Rev. Stat., *695, and chap. 682, Laws of 1866.) The offenses are quite distinct. In larceny the In either case there is a trespass. taking must be for the purpose of converting to the use of the taker. In malicious mischief no such tends to show a taking of the horse to kill him, with intent is necessary. In the present case the evidence

a sole desire to injure the owner. It was incumbent on the court then to point out to the jury the legal 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 an essential of larceny. He says there is no decision on the point in this State, and "it may then, I think, be said to be established by the great weight of American authorities, with no real exception, that to constitute larceny it is not necessary that the intent of the taker should be to appropriate the property to his use; that where the other elements exist, it is enough if the intent be to deprive the owner permanently of his property. If in the absence of decisions in our own State we are not to be guided by these text-books and by these decisions of other States, and of England, and are to consider the question on principle, then I think the same conclusion should follow. That there must be a taking is undoubted; that it must be wrongful and without excuse or color of right. But when these circumstances exist, what does it matter whether the motive of the person taking is to benefit himself or to injure the owner? Suppose the property is a thing highly valued by the owner; a thing which the person taking it cannot use and does not intend to use; and suppose that out of malice he takes it

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