a ants, and if successful, upon the trial of the issue of law or fact could succeed in defeating the plaintiff. But an entire change has transpired in this practice, under the ruling in the case of The Soldiers' Orphans Home of St. Louis, against Russell Sage and the executors of Jay Gould. In this action, a motion was made by the defendants that the plaintiff be compelled to join another defendant, or be stayed, until it did so. The point was presented that the court had no power to take questions of non-joinder out of the class of issuable contentions, and convert them into motions made upon affidavits and decided without a trial. This view of our system of pleading and practice was argued ate before the Court of Appeals, by Joseph H. Choate. But that court affirmed the order granting the motion. It rendered no opinion, and merely referred to the opinion of the Special Term, there being likewise no opinion at General Term. 2 by answer. The cause stood for trial upon that and other issues. Thereafter the defendants undertook to make this motion and obtained a stay until the plaintiff joins this new defendant, the necessity of whose presence upon the record is one of the very issues to be tried when the cause is reached for trial. It follows that hereafter a defendant can plead the non-joinder of some one whom he claims is a necessary party, and while that issue is awaiting trial he can anticipate the trial by motion and have the plaintiff stayed until he complies with the defendant's pleading. Or he may obtain such an order without pleading the issue of defect of parties at all. Without commenting upon the above decision, let us note its far reaching effect. Our whole system of trial by issues of law and fact is involved. The same section of the Code furnishes the warrant for demurrers and answers for all other causes, as well as for non-joinder. If they can be superseded in respect of questions of joinder, so can they be in regard to other issues. Any lawyer may take up the several grounds of demurrer (or answer) prescribed in the Code and substitute motions to compel the plaintiff to comply with defendant's theories of plaintiff's case. The alternative is that he be stayed until he does so. Our practice has passed through many tribulations, but this introduction of a torrent of motions to try issuable contentions does seem lamentable. Yet, In examining the opinion at chambers - reported in the New York Law Journal - we find no discussion whatever of the question of power. It thus appears that a subject-matter of demurrer and answer is converted into a ground of motion, without any apparent consideration of the fundamental change in our practice. The particular reason given below for ordering the joinder of another defendant is, that its presence is necessary for securing the removal of trustees. We cannot find that the Code ex-logically, under this decision, lawyers are encepts suits for removal of trustees from the titled to make them and courts are bound to requirement of demurrer and answer for defect hear them. of parties. It may be said that the determination whether or not another party should be joined in a suit for removal of trustees may depend upon the language of the deed or trust, or other evidence to be adduced at the trial. This consideration illustrates the wisdom of the chancery practice and of the Code in reserving all questions of defect of parties until the trial of the issue in the cause, whether raised by the pleadings, or appearing upon the full proofs at the hearing. However this may be, the Code provides the remedy for defect of parties, without exception of any ground, or reason, or argument upon which the claim of defect may be based. For example, this question of practice is sometimes intimately connected, in equity cases, with the cause of action itself. A motion by defendant to compel plaintiff to join another defendant may involve the entire theory of the case. The granting of such a motion may, therefore, subserve the double office of a demurrer for want of cause of action, as well as for defect of parties. It would seem better to follow the Code and let these contentions stand for the trial. Without protracting this article, it must be apparent that this innovation would disarrange the entire practice. Litigation would thereafter be converted into a series of trials by affidavits; In the Orphans' Home litigation, it appears or worse still, into a series of double trials that the defendants had pleaded the non-joinder I first, by motions, and in case of failure by the moving party, then by normal methods of issues anticipation of death, are deeding away their of law and fact. As no opinion appears upon this question of power of the courts to substitute motions for issues, this decision may be the result of inadvertence. If not, it would seem to be worthy of legislative attention. So far as we have ever been able to find out the failure to consult with members of the legal profession has in many instances resulted in a serious financial loss to the person who has refused the aid of some member of the frater nity. It is needless to argue against the proposition that the training of a lawyer enables him to perform his work better than the untutored layman. To the ignorant and unthinking the popular denunciation of the members of the legal profession is attractive, and the ranting corner orator harangues his too-easilydeluded compatriots with the ills which accrue to the human race from those skilled and learned in the law. The discussion of the subject, however, includes that greatest phenomenon, law and its relation to society, and is altogether above the comprehension of those who ordinarily shout most loudly. Naturally, the absence of law would result in a government by the strong, their accumulation of all property, and would end by the transfer of power from those constituted to exercise executive and other functions to those who conquered by physicial force or ingenious invention. Any restoration of peace or resumption of order would at once mark the beginning of a new government and hence the commencement of law, whether written or otherwise. In other words, law and government may continue by the common consent of the individuals of a community to recognize others' rights and to perform their own duties, even though there may be no semblance of officials to execute any of the functions of the State. This is, how ever, getting away from the main subject, which was to introduce a communication which Judge Z. S. Westbrook, of Amsterdam, recently sent to the Amsterdam Daily Democrat, which is particularly worthy of consideration in that it gives striking examples of how individuals have suffered because they have refused to seek legal advice. Judge Westbrook said: property to their heirs instead of leaving it to them by last will and testament. The reason of this is to be found no doubt in the fact that it is getting to be such an expensive thing to settle up an estate, and also in the fact that there is so often dissatisfaction among the heirs and a resort to litigation in consequence.' This item contains sentiments that we often read in the newspapers and hear from laymen, and requires a few comments. "In the first place it would seem to be a poor time for an old man to deed away his property to his heirs or others, or to otherwise dispose of the same when in anticipation of death. "Such important matters, good judgment and prudence would dictate, might better be attended to before a man is disabled with disease or infirmities of age, and disturbed with the pangs of anticipated dissolution, and the supposed conflict of his heirs over the distribution of his estate. Certainly no prudent counselor would ever advise an old man in anticipation of death to deed away his property and put it beyond his control except in a very special case, for it too often happens that after the property is thus obtained all love and respect for the 'old man' soon fade into oblivion, and if the anticipation proves to be premature and he afterwards desires to change his plans in regard to property matters it would require the services of lawyers and much litigation and attendant legal costs to recover the property again. 66 There can be no more safe or prudent or less expensive way, for a man to dispose of his property after death, if he is not satisfied with the wise provisions of law for disposing of it, than by a last will and testament, executed when in the possession of health and sound judgment and influenced by a due regard for his just relations with his family and kindred and those having meritorious claims upon his bounty. "The same legal grounds would probably exist for contesting the validity of a deed, as of a will, made by an old man in anticipation of death, for in either case incompetency, fraud or undue influence, if shown to have entered into or affected the transaction, would vitiate the in "It seems that some of our older citizens, instrument. "The great trouble is and always has been that men do not generally use sufficient judga ment and care in such matters, while in many cases they are actuated by an avaricious desire to beat the law and the lawyers, and save a dollar. Such important business should be attended to by a prudent and just man in time of health, when the infirmities of age have not impaired his faculties and judgment, and he may not be subject to the flattery or intrigues of those surrounding him. "A case is recalled of a merchant at Hagaman who had his will drawn and signed by two witnesses in proper form, but he retained the instrument without signing it himself and sometime afterwards in anticipation of death he signed it, but not in the presence of the witnesses as the law requires. I remember the case of a farmer with considerable property, residing in the town of Root, who made and executed his will in proper form, but a long time afterwards in anticipation of death he concluded to alter the will, and to do so upon the advise of his doctor took a pair of scissors and cut off and retained the last or residuary "It is a fact well known to the legal profession that the largest share of the litigation over estates of decedents and in legally adjusting their affairs after death, is the result of in-clause which disposed of the entire residue of competency, carelessness and cupidity, and an attempt to disregard the plainest provisions of law applicable to such matters, and too often of an attempt to ignore the natural and just rights of kindred. 'If men with important business in hand would more frequently consult a lawyer when alive, they would save to their heirs and estates much money that is often expended in litigation in settling up their affairs after death. I may say that in my opinion nearly all the expensive litigations in the courts over the estates of deceased persons are the result of their own gross carelessness, incompetency or cupidity, in attempting to transact important business or execute important papers without employing legal counsel. I could instance many cases within my own experience that illustrate this. I recall the case of a farmer in the town of Florida some years ago, who gave a justice of the peace one dollar to draw his will and it cost nearly $1,000 after his death for the courts to legally determine what the word, "anything" used therein meant, whether it applied to a horse, or a mortgage, or a farm, or neither. "Another case I remember of recent date of a farmer living in Port Jackson who had a jus tice of the peace draw his will and which after its execution the testator sealed up and laid away with care until his heirs should require it. When the will was opened for probate after the death of the testator and read to the anxious heirs they were astonished to learn that the testator had never signed it, though the two witnesses had signed and attested it in due form. his estate, to which was attached his signature and the signatures of his witness, and then destroyed the rest of the instrument that preceded this part. Of course all these wills were worth less. "I have in mind the case of a wealthy business man living in this city, who died within a few years, and was always regarded as unusually astute in his business affairs. He had little respect for the legal profession and rarely deigned to seek assistance from its members, and relying on his own assured ability and shrewdness, entered into an important business before his death that he would surely have avoided upon the advice of any good lawyer, had he sought it at the expense of ten dollars. As a result that transaction will now cost his estate at least $75,000 and provide fat fees for several lawyers. "Another case of an esteemed citizen of this city, who recently died, illustrates strikingly what I have already attemped to show. This gentleman entertained the highest disrespect for the law and the lawyers, and never could appreciate that there was any apparent necessity for the existence of either. He endeavored in his own peculiar way to transact all his financial business so far as he possibly could, without legal advice or assistanee, and it was quite extensive. As a result his affairs were left in such an unintelligent, complicated and entangled condition that it will require the services of at least half a dozen lawyers to unravel and adjust them, besides a large amount of legal expenses attending their settlement. "I have no doubt that by the expenditure of twenty-five dollars a year for proper legal advice and assistance, his estate would have been increased at least to twice its present value. "These cases are sufficient citations for my purpose, though I have many more in mind of the same purport. "The legal profession is extremly conservative, and the members usually endeavor to avoid litigation in adjusting and settling the disputes and contentions of men. In fact lawyers do not obtain their best or most desirable business or compensation from litigated cases. I believe that in nine litigated causes out of ten the lawyers engaged earn at least twice than they receive for their services more therein. "If men would consult the members of the legal profession more frequently in regard to their important business matters and property rights and interests, while actively engaged in the affairs of life, they would avoid a great amount of trouble and dangerous complications, and bring to their estates greater wealth and less litigation on account thereof, and afford the legal profession much better and more desirable and profitable business." The meeting of the Pennsylvania State Bar Association at Bedford Springs the 10th and 11th inst. was very largely attended, more than two hundred members of the Pennsylvania bar being in attendance at this the first annual meeting. The association was organized during the past winter and the membership already numbers between seven and eight hundred of the leading lawyers of the State. The organization of the association was taken up with much enthusiasm by Edward P. Allinson, of the Legal Intelligencer, who was made secretary of the permanent organization and had the principal charge of the arrangements for the annual meeting. Newton Fiero, of Albany. Papers were read by Alexander Simpson, Jr., of Philadelphia, on "The Local Bar Association; Its Functions and Relations to the State Bar Association," and by George Wharton Pepper, of the law department of the University of Pennsylvania, on "Legal Education." We hope to give these papers at an early day. Not only was this meeting of the association largely attended, but the members were enthusiastic with reference to its work, and entered upon its business with an apparent determination to make the influence of the association felt throughout the State. It is expected that by the next annual meeting the number of members will be at least one thousand. Both the membership and attendance indicate that the association is to be a power in matters relating to the legal profession in the State. The session occupied two days, closing with a banquet on the evening of the eleventh, at which toasts were responded to by distinguished members of the Pennsylvania bar. The dispensary law in South Carolina seems to receive a black eye on any point that is decided by the courts in relation to it, and the latest blow that it has received comes from the opinion of Judge Simonton, in which he holds. that liquors may be brought into the State It will be refrom outside for personal use. membered that the first failure of the law came from the failure of grand juries in Charleston to indict violators of the law, and demonstrated the feeling in the State towards the statute. The law is also, from a pecuniary standpoint, one of the most unfortunate pieces of legislation that has been enacted in that State, for though its adherents claimed that in the first year of operation it would net the State a revenue of half a million dollars, and in the second year bring in a million dollars of revenue, it has so far failed to make over six thousand dollars flow into the State treasury. Factional differences may have interfered with the proper working of the law, but its repeal would be of more benefit, at least to the State, than the present mangled and battered statute. When will it become a recognized principle that the morals of a community cannot be raised by harsh measures, or in fact by any sort of legislation? CIVIL SERVICE LAW. Opinion of Justice D. Cady Herrick at Special Term, on the by the superintendent of public works, without having of many subordinate officers of the State, and, therefore, merits a careful consideration. as In 1876, the then existing Constitution was amended by creating an entirely new official, known a superintendent of public works," to whom HERRICK, J. was confided the execution of laws " This is an application for a writ of Relating to peremptory mandamus, to be directed to the compthe repair, navigation, construction and improvetroller of the State of New York, commanding him ment of the canals, except so far as such constructo draw his warrant for the payment of the salary tion and improvement should be confined to the State engineer and surveyor." of the relator as clerk to the collector of canal sta- It appears that on the 26th of April, 1895, the "ALBANY, April 26, 1895. "By virtue of the power vested in me by section 3, article 5, of the Constitution of the State of New York, I do hereby appoint J. W. McClelland, of Albany, N. Y., clerk to collector of canal statistics, at Albany, N. Y.; salary $65 per month." The relator had passed no civil service examination for the position in question, and his name was not certified to the comptroller by the civil service commission of the State. The comptroller bases his refusal to draw his warrant upon chapter 354 or the Laws of 1883, as amended by chapter 681 of the Laws of 1894, which provides for arranging in classes, clerks and employes in the public service of the State, and provides for the certification to the comptroller by the civil service commission of the names of all officers, clerks or other persons appointed to the public service of the State, from either of said classes, and prohibits the comptroller from drawing his warrant for the payment of any salary or compensation to any officer, clerk or other person in the public service, who has not been so certified to him. Being thus made responsible for the care and maintenance of the canals, he was given a corresponding power in the selection of his subordinates. After providing for the appointment by him of three assistant [superintendents, such amendment further provided that "All persons employed in the care and management of the canals, except collectors of tolls, and those in the department of the State engineer and surveyor, shall be appointed by the superintendent of public works, subject to suspension or removal by him." (Cons. section 3, article 5.) It may be well to observe in passing, that the same year an amendment to the Constitution was adopted, providing for a superintendent of State prisons, who should have the superintendence, management and control of all State prisons, and to whom was given the appointment of all the agents, wardens and chaplains of the prisons; and giving to the agents and wardens of each prison, the appointment of all officers of such prison, except the clerk; and further providing for the appointment of clerks of prisons, by the comptroller. (Cons. section 4, article 5.) In 1883, the Legislature, by chapter 354 of the laws of that year, authorized the governor, by and with the consent of the senate, to appoint three persons who should constitute a civil service commission. And it was made the duty of said com The relator contends that the law in question is not applicable to his case, and that there is no necessity for his name being certified to the comp-mission "to aid the governor, as he may request, troller by the civil service commission of the State, because, as he alleges, under the laws and the Constitution of the State, the appointees of the superintendent of public works are not subject to civil service laws, but that the power of appointment is lodged exclusively in such superintendent, untrammeled by any laws, rules or regulations whatever. The position taken by the parties to this proceeding, makes it necessary to examine not only the civil service laws of the State, but the Constitution, not only as it is, but as it was prior to January 1, 1895. The questions presented are of grave importance, seriously affecting the civil service of the State, and the administration of some of its greatest and most important departments, as well as the title to office in preparing suitable rules for carrying this act into Section six of such law provided that Within four months after the present session of the Legislature it shall be the duty of the governor to cause to be arranged in classes all the several clerks or persons employed or being in the public service, for the purpose of the examination herein provided for, and he shall include in one or more of such classes, so far as practicable, all subordinate places, clerks and officers in the public service of the State." |