substantially copied from it. Illinois cannot do better than adopt it. Our State has many material claims to be called the "Empire State," but her claim to precedence and intellectual and moral sovereignty in legal reform is fully as well founded, and will outlast and prove more beneficent than many of those material boasts.

IN

NOTES OF CASES.

N Bank v. Wallace, Supreme Court of South Carolina, 1880, 11 Rep. 28, it was held that while the general rule requires that where the parties reside in the same city or town, notice of dishonor must be given personally to the indorser, or in his absence, must be left at his residence or place of business, yet where the note is made payable at a bank whose usage it is to give such notices through the post-office, that mode of giving notice will be sufficient. After stating the general rule, the court proceeded: "To this rule there are, however, exceptions, one of which is that where a note is made payable at a particular bank, and it is proved to be the usage of such bank to give notices through the post-office to persons residing in the same town or city, that mode of giving notice will be sufficient. This is upon the ground that persons who become parties to such a note are presumed to have knowledge of the usages of the bank at which they have chosen to make the note payable, and have agreed to be bound by such notice as it is the usage of the bank to give. Wigglesworth v. Dallison, 1 Smith Lead. Cas., notes, 416, 417. It would seem necessarily to follow from this that the same principle would apply to the manner of giving notice, and a recent writer, Daniel, in his work on Negotiable Instruments, states that it has been so held in several cases which he cites. Nor is it necessary that knowledge of such usage should be brought home to the person sought to be affected by it." The cases cited by Mr. Daniel are Guidvat v. Mechanics' Bank, 7 Ala. 324; Chicopee Bank v. Eager, 9 Metc. 583. In Bank v. Pinkers, to appear in 83 N. C. 377, it was held that the usage of a particular bank, known and acted upon by its customers, to discount bills without presenting them for payment, may be shown to excuse the omission to present. The court remarked: "Proof of usage among banks in a particular locality has been allowed to modify the days of grace, as prescribed by the law-merchant, and to affect those dealing with them, as was decided in Renner v. Bank, 9 Wheat. 581, which, with a series of cases in the appended note, may be found in Red. & Big. Lead. Cases on Bills of Exchange, 297." In Mills v. Bank of U. S., 11 Wheat. 431, it was held that parties to paper payable in a city where the invariable usage is to demand payment on the fourth day, are bound by that usage, although ignorant

of it.

fendant whose negligence directly and proximately concurred with the negligence of the railroad company in producing the injury, that the concurrent negligence of the company cannot be imputed to the plaintiff so as to charge him with contributing to his own injury. The court said: "If the driver could, in any just sense, be regarded as the agent or servant of the passenger, or if the railroad company, whose servant the driver was, had been, under the contract, subject to the direction or control of the passenger, then, with some show of reason, it might be said that the passenger was responsible for the negligence of the driver. But such was not the nature of the contract. The passenger was, it is true, entitled to a seat in the company's car, but was not entitled to direct or control the time or manner of its movement. That the company was bound to exercise the highest degree of care to the end that the passenger might be safely carried is true, but it was not subject to the direction or control of the passenger either as to employment of servants, or as to the manner in which the service should be performed. It seems to us, therefore, that the negligence of the company or of its servants should not be imputed to the passenger, where such negligence contributes to his injury jointly with the negligence of a third party, any more than it should be so imputed, when the negligence of the company, or its servants, was the sole cause of the injury. Indeed, it seems as incredible to my mind that the right of a passenger to redress against a stranger for an injury caused directly and proximately by the latter's negligence, should be denied on the ground that the negligence of his carrier contributed to his injury, he being without fault himself, as it would be to hold such passenger responsible for the negligence of his carrier whereby an injury was inflicted upon a stranger. And of the last proposition, it is enough to say that it is simply absurd.” The English doctrine is the contrary; Thorogood v. Bryan, 8 C. B. 115; Armstrong v. Railway Co., L. R., 10 Exch. 47; and to the same effect is Lockhardt v. Lechtentholer, 46 Penn. St. 151, while the same is held as to the contributory negligence of the driver of a private vehicle, in Prideaux v. City of Mineral Point, 43 Wis. 513; S. C., 28 Am. Rep. 558. Agreeing with the principal case, are Chapman v. R. R. Co., 19 N. Y. 341; Colgrove v. R. R. Co., 20 id. 492; Bennett v. R. R. Co., 36 N. J. 225; S. C., 13 Am. Rep. 435; Robinson v. N. Y. C. & II. R. R. R. Co., 66 N. Y. 1; S. C., 23 Am. Rep. 4. See, also, notes, 23 Am. Rep. 4; 28 id. 563.

The court said: "The sole question to be determined is whether the word 'grain,' as used by the parties, includes flaxseed. Mr. Webster says: 'Grain signified corn in general, or the fruit of certain plants which constitute the chief food of man and beast, as wheat, rye, barley, oats, and maize.' It does not necessarily follow, from the fact that certain kinds of grain are named, that there may not be others that as clearly come within the definition as those named. Certainly, buckwheat is grain, although not specially named. It is so because it is clearly an article of food when prepared as usually used. But we believe it is seldom if ever used as food in its natural state. Measurably, at least, this can be said as to flaxseed. After it has been ground, and the oil largely extracted, the residuum is the 'oil cake' known to commerce, which is largely if not exclusively used as food for cattle and other beasts, and is regarded as highly nutritious. This being so, flaxseed comes within, to an extent, at least, the definition of grain given by Mr. Webster, that it is an article used as food for man or beast. But if it be conceded flaxseed is not grain, strictly speaking, or is not so regarded in commercial transactions, this cannot be regarded as decisive of the question before us; for the rule is that this contract, 'like other contracts, must receive the construction which is most probable and natural under the circumstances, so as to attain the object which the parties to it had in contemplation in making it.' It was accordingly held in Decatur Bank v. St. Louis Bank, 21 Wall. 294, the term 'cattle' included hogs, and in State v. Williams, 2 Strobh. 474, that the legislative intent in making it larceny to take cotton, rice, 'corn or other grain' from a field, was to include peas; or in other words, that 'other grain' included peas. In Holland v. State, 34 Ga., the statute provided: 'It shall not be lawful for any person in this State to make any spirituous liquors out of any corn, wheat, rye, or other grain, except for medicinal purposes;' and it was held that 'sugar-cane seed' and 'millet' were within the meaning of the words 'other grain;' both being grain, as such word was used by the Legislature. In the case at bar the parties must, we think, have intended the policy to cover whatever was usually and ordinarily stacked on the farm or put into a granary. The term 'grain' was used as being sufficient for this purpose. Wheat, rye, oats, and flax would ordinarily be stacked together, and from the combustible nature thereof, if the wheat caught fire, the flax would ordinarily be burned if the wheat The intent of the plaintiff undoubtedly was to insure his crop raised on the farm, and put into stacks or into a granary, and the company must, we think, have so understood, and executed the policy with the intent of insuring the property in question."

was.

One who slaughters and cuts up animals, and sells the meat as food, is not a "dealer" within the meaning of a statute requiring dealers who buy and sell goods, etc., to take out a license. State v. Yearby, 82 N. C. 561. The court said: "In the recent case of State v. Chadbourn, 80 id. 479; S.

C., 30 Am. Rep. 94, we had occasion to examine and construe a similar provision in the Revenue Act of March, 1877. The defendants in that case were proprietors of a steam saw and planing mill, and their business was to buy timber, and by sawing and planing convert it into lumber and boards which they sold in the market. It was held that their calling was not within the purview of the act. The occupation of a butcher who purchases live animals suitable for food, and after slaughtering and cutting them, sells in pieces at his stall, is not dissimilar. He does not buy and sell the same article and in the same condition as a mere trader. He buys a cow, a hog, or a sheep; he sells beef, pork or mutton. His labor and skill have been employed in making the change, and enhance the price. The reasons assigned for the exemption of the manufacturer of boards apply with equal force to the butcher." See 18 Alb. L. J. 384.

THE

THE NOMINATION OF JUDGES.

best possible method of securing an able and honest judiciary is always an interesting subject of discussion in political philosophy, but how best to secure that object under the conditions which exist in this State is a question of practical politics which concerns every man who wishes the government, as it is, administered in the best possible way. Can any thing be done, as the laws now staud, toward bettering the present state of affairs? It is not necessary to admit that at present we are in a bad condition, but the question is, can we get in a better?

In this State judges are elected, indeed, but not chosen by the people. The people merely determino which they prefer of two candidates chosen by the political machines. Yet it is a necessity that some

organized body should present a candidate for election to the bench. It would be a useless and indelicate thing for a man to offer himself as a candidate, and no good result would happen if the people were left to scatter their votes according to their individual preferences. I have such confidence left in the shrewdness and honesty of the peoplo as to believe that the difficulty is not to elect a good nominee, but to secure a good nominee.

Theoretically, every citizen has a voice in determining who shall be the candidate of the political party with which ho sympathizes. As an actual fact he does

not raise his voice. As a practical fact ho cannot raise it effectually. The caucus controls the nominations, and men who make politics a business control the caucus. And these men distribute nominations as the rewards for political services and party fidelity. At the best, this principle of distribution is not calculated to secure good judges, but good politicians. At the worst- and that is what you are likely to get-the only standard that the caucus and its managers set up is, how bad a candidate will the people endure?

In offices involving action on political questions only,

the methods of the caucus may secure fair results. If you are a Republican, you know your candidate will stand by the Republican party, right or wrong; or if you are a Democrat, you have a candidate who will act with the Democratic party, right or wrong. But that is just the kind of man you do not wish for a judge. It is proper that a judge should have patriotism enough to hold pronounced opinions on political subjects, but it is a misfortune if he feels under obligation to a political party, and a still greater misfortune that he should owe his office to certain individuals, or to a cer

tain clique of individuals in his party, who control the party caucuses. As a basis for practical action, it may be said that these conditions exist in this State:

1. That the judges must be elected by the popular vote.

2. That they must be nominated by some organized body.

3. That the present party organizations are unfit to make such nominations.

There remains only one method if the above conditions exist, and that is, to secure nominations from some other than the political bodies. That can be done either by the formation of a new organization for the especial purpose of nominating judges or by utilizing some organization, already in existence, which has the qualities necessary to make it reasonably certain that it will make good nominations.

In my opinion, no satisfactory results can be obtained from the formation of a new organization having for its special and only object the nomination of judges. Experience shows that in a very short time such associations come under the control of political partisans or place-seekers who have not ability enough to secure influence in the regular political organizations. Honest men having only a general patriotic interest in the objects of the association give, after a time, no activo attention to its affairs-for a virtue that does not bring in dollars is unfortunately shortlived - and they leave its permanent management to those who have a bread-and-butter interest in it. In a temporary gush of enthusiasm for good government, they lend such associations the use of their names and influence, and then grow tired and leave it, strengthened by their connection with it, to those who use it for selfish ends. There is no hope of permanent good results from such organizations. But good, and uniformly good, nominations might be expected from an association entirely non-partisan in its constitution, composed of men of reputable character, having a special and peculiar interest in the selection of good judges, and yet not dependent for its existence on periodical spasms of interest in politics, but existing because it has a permanent and continuous reason for existing outside of politics-a reason which makes its members at all times anxious to preserve a high standard of membership, and to prevent its coming under the control of those who would use it for selfish purposes.

The Bar Associations which have been formed throughout the State are just such bodies, and combine every requisite I have mentioned. The question is, will they do any thing? These associations ask the respect of the community, and claim influence in it, as representing the respectability of the bar. They properly assume to be censors of bench and bar, because one great object of their institution is to elevate the standard at bench and bar.

I do not know how it has been in other parts of the State, but the Bar Association of the city of New York has repeatedly ventured to tell the people of New York city whom it considered the worst of the candidates for judicial position nominated by the political parties. But even that association has contented itself with this veto power. Having a direct and peculiar interest in the selection of good judges, it has been satisfied with being a negative quality in their selection. But the little it has done has been enough to show that it acknowledges its duty to interfere. But if these associations admit that their position imposes upon them the duty of taking any part in the selection of judges, they must go further and acknowledge their duty to do the utmost to secure good judges. If they have the right to interfere at all, they have a duty to interfere in the most efficacious manner. If they find it within their province to recommend one of two evils, it is certainly within their

province to offer an escape from both by making nominations themselves, and at least giving the people an opportunity to elect good judges.

HORACE W. FOWLER.

WHEN OBLIGOR ON BOND ESTOPPED FROM DENYING ITS VALIDITY.

SUPREME COURT OF THE UNITED STATES, DEC. 13, 1880.

DANIELS ET AL., Plaintiffs in Error, v. TEARNEY ET AL. In an action upon a bond executed under a State statute, defendant claimed that he was not liable, upon the ground that the statute was repugnant to the Federal Constitution. Held, that an appeal would lie to the United States Supreme Court from a judgment of the State courts in favor of plaintiff.

A statute passed by the convention of Virginia in furtherance of secession provided that no execution should be issued and no sale made under a decree of court without consent of the parties, and that where an execution was issued the debtor might be relieved from its enforcement by giving a bond for the debt payable when the operation of the ordinance should cease. Held, in an action to enforce such a bond, that the obligors were estopped from setting up that it was void as being under a statute repugnant to the Constitution of the United States.

error to the Circuit Court of Jefferson county, State of West Virginia. The opinion states the

case.

SWAYNE, J. This is a writ of error brought to reverse a judgment of the Supreme Court of Appeals of the State of West Virginia.

The case, as disclosed in the record, may be sufficiently stated for the purposes of this opinion, as follows: On the 18th of April, 1861, a convention of the State of Virginia passed an ordinance of secession; and on the thirtieth of that month a law, entitled “An ordinance to provide against the sacrifice of property and to suspend proceedings in certain cases.' This ordinance declared that thereafter no execution (except in favor of the Commonwealth and against nonresidents) should be issued, and that no sales should be made under deeds of trust or decrees without the consent of the parties interested, until otherwise provided by law; and that where executions were in the hands of the officer, whether levied or not, if the debtors should offer bond and security for the payment of the debt, interest, and costs, when the operation of the ordinance should cease, the property should be restored, and the bond should be returned as in the case of a forthcoming bond and should be a lien on the realty of the obligors. If the debtor offered no bond his property was to be appraised by three freeholders, at its value, on the 6th of November, 1860, and unless the property would sell for the amount of the valuation, it should be restored to the debtor without lien.

The declaration sets forth that the defendants, on the 1st day of June, 1861, made their joint and several bond, whereby they bound themselves to pay to the plaintiff the sum of $1,597.18 when thereunto requested, and that there was a condition affixed to the bond which was, "that whereas, on the 25th day of March, 1861, a writ of fieri facias was issued from the clerk's office in the name of Colin C. Porter against Benjamin F. Daniels for $747.92, with interest from the 2d day of January, 1860, until paid, and $31.97 costs, if therefore the said B. F. Daniels should pay the debt, interest and costs, when the operation of the ordinance before mentioned should cease, then the obligation to be void, otherwise to be in full force." It was averred that the operation of the ordinance had long since ceased, and yet that the defendants, though often requested so to do, had not paid the said sums of money or any part thereof, whereby an action had accrued, etc.