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provision is practically the same as section 25 of the stitutional office, as an expiration of the term. judiciary article which went into effect in 1870. With respect to a legislative office, the term must That provides: “Surrogates, justices of the peace be deemed to have expired whenever the Legislaand local judicial officers proviiled for in section 10 ture so declares. This interpretation is entirely in office when this article shall take effect shall hold consistent with the scope of the judiciary article, their respective offices until the expiration of their and the underlying thought which it contains, that term.”

the legislative courts should remain subject to the These sections are inserted into the several con- legislative power, and not advance into the rank of stitutions in which they appear out of abundant constitutional courts. caution in order to avoid what might be claimed, For these and other reasons it is concluded: that the incumbents of the office named at the time First. That the Legislature has the power to reguof the adoption of the new Constitution were thereby | late the terms of the present police justices of the deprived of their offices. To guard against such city of New York, to the extent of removing them claim, section 1 of article VI of the new Constitu- from office if necessary. tion provides for the continuance in office of the Second. In any event it has the power to abolish justices of the Supreme Court and of the justices the offices; and, transferred thereto by section 5. Section 7 provides Third. To reduce or altogether take away the for the continuance in office of the judges of the compensation given to these officers by the ConsoliCourt of Appeals; section 14, of the county judges; dation Act. section 15, of the surrogates. For the same reason (Signed)

Louis MARSHALL. justices of the peace are continued in office, and, I concur in Mr. Marshall's conclusions that the inasmuch as there was no provision for the continu Legislature may abolish the office of police justice ance of inferior local courts previously established, or reduce or take away the compensation thereof. because they are legislative, and not constitutional, 30th January, 1895. courts, and to indicate that there was no purpose to (Signed)

Joseph H. CHOATE. interfere with those who were then incumbents of


Elinu Root. local judicial offices, it was provided that they (Signed)

WM. B. HORNBLOWER. should hold their offices until the expiration of their (Signed)

Jos. LAROCQUE. respective terms. With respect to the judges of (Signed)

CHARLES C. BEAMAN. the Court of Appeals, the justices of the Supreme

I concur in the opinion of which the above is a Court, county judges and surrogates, it is, however,

copy. . to be observed that the Constitution fixes their terms

JAMES C. CARTER. of office. Both the old and the new Constitutions prescribe the duration of their official term, while, JUDGE PRYOR'S SPEECH AT THE DINwith respect to the local judicial officers, there is no NER OF THE UNIVERSITY LAW SCHOOL

ALUMNI constitutional term of office but one fixed by the Legislature. The language of the Constitution is not THE following address was delivered by Judge that the officers named shail hold their office for the

Roger A. Pryor at the annual dinner of the respective terms for which they are elected or ap- Alumni of the University Law School on April 18, pointed, but merely until the expiration of their re- 1895, in response to the toast, “The Bench: " spective terms. These terms are of legislative crea- "MR. CHAIRMAN AND GENTLEMEN : The topic tion, and the power to fix such term is in no man- naturally suggested by the toast you offer, is the ner taken away by the language employed. All reciprocal obligations of the bench and the bar. that was sought to be accomplished was, that the the duty of counsel is by careful research and disexisting legislative courts should not be without incussion so to present the case, on each side, as to cumbents by reason of the adoption of a new Con- enable the court to render a right decision. In the stitution. There certainly is no reason why the performance of this function great scope is afforded Legislature should be prevented from fixing the for the display of learning and ability. The learnterms of those who should happen to be in ofce ing, however, should not be abused by an ostentaupon the taking effect of the new judiciary article, tious prodigality of citation, but be seen only in the and leave it entirely unrestricted with respect to production of authorities pertinent and conclusive their successors. By the phrase, “the expiration of of the point. Bulk is no' always weight; and the their respective terms,” it was u,loubtedly in attraction of a brief may be in an inverse ratio to its tended to refer to all methods whereby the expira- | length. And the ability exhibited should be mani. tion of an official term could be brought about. fest in an orderly marshaling of essential facts in Death, resignation, removal for misconduct, or other a firm grasp of the principles involved, in an accusufficient cause, operate, even in the case of a con- rate apprehension of the conflicting analogies, and

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in an argument clear, compact and cogent. For- judge need not prolong his deliberation to an Eldoensic eloquence is still a power, though not of the nian period of gestation. Curia vvisori vult should kind formerly in vogue - florid, copious and decla- not be the synonym of interminable procrastination. matory; but simple, subdued and severely logical – In magna charta, the sale of justice, the denial of pure reason aglow with animation.

justice and the delay of justice appear in the same "The first and indispensable requisite is to engage category of unpardonable offenses. Indeed, gentlethe attention of the court; and by no means is this men, the judicial office is not of dignity only, but condition so effectually fulfilled as by luminous of awful responsibility. The dispensing justice, statement, elegance of diction, methodical arrange- the righting of wrong: the protection of innocence, ment of topics and earnestness of address. I say the punishment of guilt these are the functions; elegance of diction because, after all, there is a and what prudence, what labor, what vigilance, fascination and an effect in mere felicity of phrase; what learning, what courage, what probity, are inand I inculcate earnestness of manner, because the dispensable to their faithful fulfilment! Be assured Horatian precept Si vis me flere is as imperative as that the bench has its trials and perplexities, and is

not exempt even from the remorse of an unjust deHaving so presented his client's case, the advo- cision, though the effect merely of human fallibility. cate's office is at an end, and the judge occupies the Bear with us, then, I pray you, if, under the strain scene with his imposing presence. The duty of the of our arduous, anxious and distracting duties, we bench to the bar is primarily a patient attention to sometimes lapse into error and occasionally give vent the arguments. •Patience and gravity of hearing,' to ebullitions of ill-humor. Over the infirmitics of says Bacon, 'is an essential part of justice, and an the upright judge charity will cast its veil; and the overspeaking judge is no well-tuned cymbal.' How worth of the magistrate may atone for the weakness ever able the judge, and however inexperienced the of the man. lawyer, it stands to reason that he who has made a “Gentlemen of the bar, the bench greets you as special study of the case must know it better than brothers. It is only while the ermine is on that we he to whom it is just presented, and that so some- assert any superiority of position. Descending from thing may be learned even from the speech of the our official station, we stand on a level with the least expert advocate. Hence, another maxim of most recent of Dr. Abbott's graduates; and we the same great authority, namely: •Let not the solicit from them the familiarities of an equal friendjudge meet the cause balf way, nor give occasion to ship. Meanwhile, we invoke for you, one and all, the party to say his counsel or proofs were not the utmost fortune of the professiou. Dat Galenus heard.' Again, the advocate is entitled to the most opes, dat Justitianus honores ; wealth is not the rerespectful treatment by the court. The amenities ward of the lawyer, but by noble endeavor he may of the gentleman are not incompatible with the dig- attain a better prize -- a name of renown and in nity of the judge. And this courtesy of the bench influence for good.” to the bar should not be proportioned to the eminence of the advocate; on the contrary, the younger, Abstracts of Recent Decisions. the weaker and the obscurer the counsel, the clearer his title to deferential encouragement from the


· Where court. It may be more perilous to provoke a duel parties unite in a voluntary unincorporated associaof wit and disputation with a Choate than with a

tion, and for convenience contract under an assocityro; but for that very reason the judge should be

ate name, the acts of the association, it not being a prompter to challenge Mr. Choate than the tyro. legally responsible body, are the acts of its members How crushing to modest merit a sneer or a frown

who instigate and sanction the same. (Winona from the court, and how cruel, too! How helpful Lumber Co. v. Church (S. Dak.], 62 N.W. Rep. 107.) a word of praise or a look of approval! “The briefs handed in, the judge should study

CONFLICT OF LAWS-DEATH BY WRONGFUL ACT. them thoroughly and impartially, so that when he

In an action by a father for the negligent killing of delivers his decision, the defeated counsel will say

liis child in a foreign State, unless the statute of the that, at all events, the court has tried to do justice. foreign State authorizing such an action be pleaded, It is not for mortals never to err, and everything plaintiff's right of recovery is governed by the comwill be forgiven to the judge who has sought dili

mon law. (Jackson v. Pittsburgh, C. C. & St. L. gently and conscientiously to discover the right. Ry. Co. [Ind.), 39 N. E. Rep. 663.) Whether he go wrong from corruption or indolence, CONTRACTS the miscarriage of justice is the same, and equally | An agreement by property owners and business men, oppressive to the suitor.

in the immediate neighborhood of the post-vffice, to “ But, while gravely meditating the case, the I pay the owners of the building in which it is located




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a specified sum monthly for four years, in case the INSURANCE-PROPERTY COVERED.- I policy on a latter rent the building to the government for a two-story brick building “and additions thereto," nominal sum, in order to secure the retention of the occupied as a dwelling, includes a building partly office in that locality, is supported by sufficient con- occupied by assured servants, and one of the rooms sideration and is not void, as against public policy. of which is used as a laundry, though it is not an(Fearnley v. De Mainville [Colo.], 39 Pac. Rep. 73.) nexed to the brick building, where there is no other

building in assured's yard which can possibly be CONTRACTS OF CORPORATION. A contract made

claimed as an addition to the main building, not by a promoter is binding on the corporation, if | built in it as part of the house originally. (Phenix adopted by it after its organization. (Pratt v. Osh

Insurance Co. v. Martin (Miss.), 16 South. Rep. kosh Match Co. [Wis. ], 62 N. W. Rep. 81.)

417.) DEED

Plaintiff left a

MASTEĮ AND SERVANT-PROMISE TO PROTECT EMdeed to his land with a real estate broker, who was

A promise by an employer that “he negotiating for the sale of said land, with express would take all the risks of any accident that might instructions not to deliver it without plaintiff's con

occur” to an employe, does not include injuries sent. Subsequently, the broker delivered the deed, caused by contributory negligence. (Phillips without plaintiff's knowledge or consent. The

Michael (Ind.), 39 N. E. Rep. 669.) grantee never took possession of the land, and thereafter sold it to defendant. Held, that defend- MUTUAL BENEFIT SOCIETY-CERTIFICATE.- The ant took no title in the land, although he was a beneficiary in a certificate of membership in a bebona fiile purchaser. (Allen v. Ayer (Oreg.) 39 Pac. nevolent society, the Constitution of which proRep. 1.)

vides that its members may surrender their certifi

cates, has no vested interest therein which prevents ELECTIONS-ERRONEOUS EXCLUSION OF VOTERS.-Where qualified electors offered to vote, but were

the member from surrendering it. (Wells v. Coveprevented from actually casting their ballots by an

nant Mutual Benefit Ass'n of Illinois (Mo.), 29 S.W.

Rep. 607.) erroneous decision of the election judges, held, such ballots cannot be counted for the candidate NEGOTIABLE NOTE-BONA FIDES. -The fact that the electors subsequently declared they intended to the purchaser of a note had notice of facts which have voted for, if they had voted. (Pennington v. would have put a prudent man on inquiry as to deHare (Minn.), 62 N. W. Rep. 116.)

fects therein, and failed to make inquiry, does not, ESTOPPEL


as a matter of law, prevent him from holding the debtor sells his property to a third person, and

note free from all equities. (Bowman v. Metzger transfers the notes received in payment to a cred (Oreg.), 39 Pac. Rep. 3.) itor, the latter is estopped, while retaining the PLEDGE--BONA FIDE PURCHASER.-One who renotes, to attach the property in the bands of the ceives as collateral security to a loan contemporathird person as that of the debtor. (Larkin v. neously made negotiable bonds not yet matured, Wilsford [Tex.), 29 S. W. Rep. 548.)

without knowledge of any defense to such bonds, HOMESTEAD. — The fact that a building is used is entitled to protection as a purchaser thereof, to for a saloon will not deprive the occupant of home the extent of the amount of such loan. (Hayden v. stead rights as against a creditor not claiming under Lincoln City Electric Ry. Co. (Neb.), 62 N. W. a violation of the prohibitory law. (Groneweg v. Rep. 73.) Beck (Iowa), 62 N. W. Rep. 31.)

TRIAL MISCONDUCT OF JURORS.-A defendant HOMESTEAD EXEMPTION-REMAINDERMAN.-A re- who joins with jurors in drinking at plaintiff's exmainderman may, on the determination of the par- pense, and who gives no notice to the court of the ticular estate, claim a homestead in the land as occurrence till after the verdict is rendered, cannot, against his judgment creditors who have failed to on a motion to set aside the verdict, urge that the sell, under execution, his interest in the land before jurors were, by receiving the liquor, influenced in the termination of the life estate. (Stern v. Lee plaintiff's favor. (Bradshaw v. Degenhart [Nont.), [No. Car.], 20 S. E. Rep. 726.)

39 Pac. Rep. 90.) INSOLVENCY---PREFERENCE.- Where an insolvent WILL-ESTATE IN REMAINDER. A testator debuys goods, and, under the contract, pays part of vised all his real estate to his wife for life, and by the price in cash, such transaction is not a volun- a subsequent clause devised all his lands to bis tary payment in contemplation of insolvency, with grandson. lleld, that the grandson took ain estate a view to preferring the seller as a creditor. (H. B. in remainder. (McCord v. Caldwell's Ex'r [F.y.), Claflin Co. v. Levitch [Ky.), 29 S. W. Rep. 452.) 29 S. W. Rep. 440.)



business matters, should be addressed to THE ALBANY LAW


and fitness for the high office which he holds The Albany Law Journal.

and more than ever demonstrates that he is

one of the most honorable judges in the State. ALBANY, MAY 11, 1895.

A dissenting opinion of considerable interest Current Lopics.

is that of Judge Canty of the Supreme Court of (All communications intended for the Editor should be ad- Minnesota in the case of Blomquist v. Chicago, Jressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other

M. & St. P. Ry. Co., which was recently de

termined by that court and whose decision has JOURNAL COMPANY.]

just been handed down. The action was IE recent rejection of two jurors in the brought to recover damages for injuries said to

McLaughlin trial by Justice Barrett, of have resulted from the defendant's negligence New York city, should receive the absolute while constructing a platform on which to raise approval of every member of the bar.

There a derrick. From the evidence it exclusively is too much laxity allowed jurors at the present appears that the foreman of the crew with which time in answer to questions which involve their the plaintiff was working as a common laborer qualifications to sit as members of a body who was vice principal, for whose negligence the have the most sacred right to determine and defendant's must be held responsible. The decide. Not only is this so, but a much opinion of Judge Canty lays down some able greater danger might be met with in relation to and interesting principles in the matter of the the evils which exist in jury trials and which liability of a superior to an inferior servant must necessarily work to the prejudice of the through its vice principal. Among other things system. In the recent constitutional conven- Judge Canty says: I cannot concur in the foretion the strongest arguments were advanced in going opinion. It cannot be held in this case, support of the idea of abolishing entirely the as a question of law, that the foreman, Enger, system of trial by jurymen and to allow the

was a vice principal, except on the doctrine that court to determine the facts as well as the law the mere fact that the foreman has authority to in the case. With the increasing dangers hire, discharge, and oversee other servants conwhich appear in the situation and with the institutes him a vice principal. This is the doccreased demand of the people for purity in trine of the courts of Ohio and some

me other judicial proceedings it is not difficult to per- States, and was for a time the doctrine of the ceive that the day is rapidly approaching when Federal courts. This court has never before we will be without the service of these arbiters adopted that doctrine. This case cannot be of the destiny of causes.

distinguished in principle from Lindvall v. One of the jurors at the McLaughlin trial Woods, 41 Minn. 212; 42 N. W. 1020. And, distinctly stated that he did not know of the while the majority profess still to follow the person who was to be one of the witnesses in extreme doctrine of that case, they have in fact the case, while the other made some, it is gone to the other extreme, and adopted the alleged, mis-statements in regard to his relation Ohio doctrine. If the doctrine of Lindvall v. to certain individuals who were very close and Woods is to be overruled, it should be overfriendly to the defendant. It is not to be pre- ruled squarely, and not in this manner. On sumed that jurors intentionally made these the question of whether such a foreman is a mis-statements with the purpose in view of be- vice principal, the different courts take one excoming members of the jury which was to try treme or the other. But I am of the opinion a man for whom they entertained some friendly that between these two extremes there is a midfeelings, but the attorneys for the parties to the dle ground, which is far more just, and the action are entitled to absolutely true answers principles of which are sound and practicable. to the questions which they put, so as to enable These principles I will hereinafter discuss. them to determine the qualifications of the The foundation for the platform of the dermen who are to decide the cause which they rick in this case was a temporary appliance, present to the court. In this case Judge Bar-constructed by the men in the progress of the rett again demonstrates his ability, competency I work, as was the defective trestle in Lindvall

Vol. 51 - No. 19.

v. Woods, the insufficient curbing and braces the track, on the opposite side of the embankfor the same in Bergquist v. City of Minne- ment, and was unusually heavy. The outer apolis, 42 Minn. 471; 44 N. W. 530, the de- end of the boom or arm of the derrick was fective step on the side of the lumber pile in more than one-half the length of the upright Fraser v. Lumber Co., 45 Minn. 235; 47 N. W. mast, away from the mast. Applying the prin785, and the defective scaffold in Marsh v. ciple of the lever, the top of the mast, being Herman, 47 Minn. 527 ; 50 N. W. 611. In held fast by the guy ropes, would act as a fuleach of these cases this court held that the rule crum, and the weight of the stone on the end which imposes on the master the duty to pro- of the boom would have a tendency to push vide safe machinery and appliances for the use the bottom of the mast off in the opposite diof his servants has no application to temporary rection, down the embankment, with a side appliances of this character; that when such pressure of about one-half the weight of the appliances are prepared during the progress of stone, and this probably caused the foundation the work by some of the servants of the com- to give away. But, whether it was this or some mon master, they do not come within that rule, other cause, it cannot be held as a question of and I concede this to be the correct principle. law, that a common laborer should have suffiBut in the case of Sims v. Barge Co. (Minn.), cient skill to investigate this foundation for 57 N. W. 322, this court, while professing to himself, and decide whether or not it was safe, adhere to that doctrine, held that the mere fact

or that he should know or appreciate the danthat the temporary appliance the scaffold

gers to which he was being exposed. If he had was constructed by servants employed for that

or should have had such skill, it was his duty purpose, and that the servant injured took no

to exercise it, and the master should not be part in the construction of the same, entitled

held liable. But if he was not employed to him to recover if the scaffold was defectively have, did not have, and could not be expected constructed, by reason of the negligence of

to have, the skill reasonably necessary for his those servants who constructed it, and he was injured thereby. This is simply holding that own protection, the duty of protecting him

should devolve upon the master. The plainservants employed by the same common master, in different departments of the same work, are

tiff is not paid for exercising such skill, and it not fellow servants, and that the master is liable is a beautiful theory of law which requires him for the negligence of a servant in one depart-out of his wages, of perhaps one dollar per ment resulting in injury to a servant in another

day, to hire an expert, whose services are

worth five or ten dollars per day, to inspect department. This court has often repudiated that doctrine. See Neal v. Railway Co. (Minn.), these temporary appliances for him, and inform 59 N. W. 312, and cases cited. The derrick

him as to their safety. As I have stated, it is platform was a temporary place, constructed by held by a number of courts that the mere fact the fellow servants of plaintiff as a part of the that the superior servant has power to hire, diswork in which they were engaged. It was not charge, and direct the inferior servant is alone a permanent place provided by the master be sufficient to constitute the superior servant a forehand, and what is known as the rule that vice principal as to the inferior servant; but the master must use due care to provide a safe it seems to me that it should require something place for his servants to work in does not apply. more to give the superior servant that charatcer. But, in my opinion, it does not follow from this It is often the case that the inferior servant is that the defendant should not be held liable.

more famillar than such foreman with the danThe plaintiff is a common laborer.

gers to which he is exposed, and is better able not employed to exercise the mechanical skill to protect himself from those dangers than the or expert knowledge which may have been foreman is to protect him; and yet, without his necessary to determine whether or not the fault, and by reason of exposure to those danfoundation for this derrick was safe. This gers, he may be injured through the negligence foundation was built beside the railroad track, of the foreman. When the inferior servant on the slope of an embankment. The stone knows and appreciates the dangers to be which was being raised at the time was across avoided, and is as well, or nearly as well, able

He was

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