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performing his work of unloading. But the lending in that view is gratuitous. Why should it occur? In what did such a custom originate? How is it that the boat should give its captain's service to one bound to do the whole work for another employer? Until we can answer these questions, the theory hardly helps us. It is only another mode of stating the problem. The statement however opens the way to some of the authorities upon which the defendant relies. That most confidently pressed upon our attention is Murray v. Currie, L. R., 6 C. P. 24. The defendant employed a stevedore to unload his vessel. One of the ship's crew named Davis was allowed to assist in the work, the stevedore being charged for his hire. Through the negligence of Davis in doing his work an injury happened, and it became a question whose servant he should be deemed. Brett, J., said: "If I lend my servant to a contractor, who is to have the sole control and superintendence of the work contracted for, the independent contractor is alone liable for any wrongful act done by the servant while so employed." To make that case fit the one before us, we must first determine that the stevedore in unloading the coal was entirely independent of the captain, who had no right in any manner to interfere with the process of unloading, and then we must further find that he was employed by the stevedore as his servant to do his work. So that the case leaves us with our principal problem unsolved. The same difficulty prevents an application of the decision in The Harold, 21 Fed. Rep. 428. April 15, 1890. Kilroy v. Delaware & H. Canal Co. Opinion by Finch, J. Affirming 1 N. Y. Supp. 779.

RE

MORTGAGES-SALE OF MORTGAGED PROPERTY LEASE OF ONE PARCEL.- (1) K. purchased, free from the lien, one of two lots covered by a mortgage, paid the consideration and took possession; but before he received his deed, T., with notice of the sale, purchased the other lot, free from the lien, and received a deed therefor. Afterward the mortgagee released K.'s lot from the lien. Held, that the release of K.'s lot did not release the mortgage as to T.'s lot, since, though the latter's deed was of prior date, K. had purchased first, and taken possession. (2) Where a person purchases one of two lots covered by a mortgage, in consideration of an obligation then assumed, his equity is stronger than that of one who has previously purchased the other lot, in consideration of a past-due debt, and the latter lot should be first sold to satisfy the mortgage. April 15, 1890. Libbey v. Tufts. Opinion by O'Brien, J. Affirming 1 N. Y. Supp. 353.

MUNICIPAL BONDS-CANCELLATION - LACHES — INJUNCTION-RES JUDICATA.-(1) For more than nine years a town regularly paid the interest on railroad aid bonds issued by it, and also paid a part of the principal. The balance of the bonds, which were apparently valid, meanwhile passed into the hands of bona fide purchasers for value. Held, that the town had been guilty of such unreasonable laches that equity would not decree a cancellation of the bonds, though actually void, and though the delay in bringing suit had not continued for the full statutory period of limitation of equitable actions. (2) Where there is no claim that railroad aid bonds were issued fraudulently or collusively, the town supervisor will not be enjoined from paying the interest thereon out of money collected for that purpose in the usual course of taxation, before the validity of the bonds was questioned. Such payment is neither an illegal act," nor does it constitute "waste," within the meaning of the Laws of New York, 1881, chapter 531, section 1, which authorizes the prosecution of actions by the tax payers of a town "to prevent any illegal act" of its officers, or "to prevent waste or injury to its property or funds. (3) A judgment in an action ostensibly for the interest on its bonds, but in fact prosecuted and defended by a town

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for the purpose of having them declared invalid, is no bar to a re-examination of the entire question in a subsequent action for their cancellation against bondholders not parties to the former action. April 15, 1890. Calhoun v. Delhi & M. R. Co. Opinion by Andrews, J. Affirming 48 Hun, 617.

MUNICIPAL CORPORATION - DEFECTIVE STREET — SNOW AND ICE.-In an action against a city for injuries alleged to have been caused by a defective sidewalk, it appeared that plaintiff slipped on a ridge of ice and snow about six inches thick in the center and sloping to the edge of the walk. For four days previous to the accident it had been warm and sloppy, but the night before it suddenly grew colder and froze hard. The snow had not been fully removed at this point for several weeks. Held, that there was no evidence of negligence on the part of defendant, and plaintiff could not recover. Whatever might have been its condition, so far as danger was to be apprehended, it arose solely from its frozen and slippery condition, and that, as we have seen, was caused by the freezing of the night before the accident. The danger arising from the slipperiness of ice or snow lying in the streets is one which is familiar to everybody residing in our climate, and which every one is exposed to who has occasion to traverse the streets of cities and villages in the winter season. Accidents occurring from such causes are charge. able solely to the persons injured, unless it can be shown that the cause thereof has been occasioned, aggravated or negligently permitted by the act of some third party charged with the duty of obviating or removing it. It was essential to the maintenance of this action that some breach of duty on the part of the defendant should have been proved, accruing prior to the happening of the accident, which was the cause of the alleged injury. We are of the opinion that the case made did not establish the existence of this essential fact. The proof fails to show that there was any unusual or dangerous obstruction to travel arising from show or ice in the street, or even if there was, that any such lapse of time had intervened between the period of its creation and the occurrence of the accident as afforded a presumption of knowledge in the municipality of its condition; or opportunity to remove the obstacle after notice was received. The duty resting upon municipal corporations to remove accumulations of ice and snow as it falls from time to time upon their streets is a qualified one, and becomes imperative only when dangerous formations or obstacles have been created, and notice of their existence has been received by the corporation. Hunt v. Mayor, 109 N. Y. 134. Actual notice to the public authorities is not in all cases required, and it has been held that negligence may be inferred from the omission by the corporation to cause dangerous obstructions to be removed from the streets after sufficient time has elapsed to afford a presumption of knowledge of their existence and an opportunity to effect their removal. If "there has elapsed such length of time as that the defect has become known and notorious, and there has been full opportunity for the municipality, through its agents charged with that duty, to learn the existence of the defect," au omission to remove it within a reasonable time has been held to be sufficient to authorize a finding of negligence against the corporation. Requa v. City of Rochester, 45 N. Y. 136. The principles regulating the liability of municipal corporations for injuries occasioned by accidents through the slipperiness of sidewalks have been the subject of frequent discussion recently in this court, and the cases decided fully support the conclusions reached by us in this case, and render further discussion unnecessary. Taylor v. City of Yonkers, 105 N. Y. 209; Kaveny v. City of Troy, 108 id. 571; Kinney v. City of Troy, 108 id. 567. April 15, 1890. Harrington v. City of Buffalo. Opinion by Ruger, C. J. Reversing 2 N. Y. Supp. 333.

TAX-LEASE-REDEMPTION-NOTICE.-(1) The service by the lessee of a tax-lease upon the owners of the leased lands of a notice to redeem, which described the sale as made for a tax of 1874, when in fact it was made for a tax of 1876, was misleading, and was not a notice of "the sale," as required by the laws of New York of 1871, chapter 381, section 13. (2) In an action of ejectment based on a tax-lease, the defendants may, on appeal, avail themselves of the insufficiency of the notice to redeem although they did not raise the point below, where the trial court, on motion, made both on specific and general grounds, directed the jury to find for defendants, and plaintiff excepted to such direction. April 15, 1890. Smith v. Buhler. Opinion by Finch, J. Affirming 4 N. Y. Supp. 632.

UNITED STATES SUPREME COURT AB-
STRACT.

CONSTITUTIONAL LAW-EMINENT DOMAIN-INDIAN TERRITORY.-The United States have the power through Congress to authorize a railway company to condemn lands for its purposes in the Cherokee Indian Territory upon making compensation. The proposition that the Cherokee nation is sovereign in the sense that the United States is sovereign, or in the sense that the several States are sovereign, and that that nation alone can exercise the power of eminent domain within its limits, finds no support in the numerous treaties with the Cherokee Indians, or in the decisions of this court, or in the acts of Congress defining the relations of that people with the United States. From the beginning of the government to the present time, they have been treated as "wards of the nation,” "in a state of pupilage," "dependent political communities," holding such relations to the general government that they and their country, as declared by Chief Justice Marshall in Cherokee Nation v. Georgia, 5 Pet. 1, 17, "are considered by foreign nations, as well as by ourselves, as being so completely under the Sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory and au act of hostility." It is true, as declared in Worcester v. Georgia, 6 Pet. 515, 557, 569, that the treaties and laws of the United States contemplate the Indian Territory as completely separated from the States and the Cherokee nations as a distinct community, and (in the language of Mr. Justice McLean in the same case, p. 583) that "in the executive, legislative and judicial branches of our government we have admitted, by the most solemu sanction, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a State or separate community." But that falls far short of saying that they are a sovereign State, with no superior within the limits of its territory. By the treaty of New Echota, 1835, the United States covenanted and agreed that the lauds ceded to the Cherokee nation should at no future time, without their consent, be included within the territorial limits or jurisdiction of any State or Territory, and that the government would secure to that nation "the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government of the persons and property within their own country, belonging to their people, or such persons as have connected themselves with them;" and, by the treaties of Washington, 1846 and 1866, the United States guaranteed to the Cherokees the title and possession of their lands, and jurisdiction over their country. Revision of the Indian Treaties, pp. 65, 79, 85. But neither these nor any previous treaties evinced

any intention, upon the part of the government, to discharge them from their condition of pupilage or dependency, and constitute them a separate, independent, sovereign people, with no superior within its limits. This is made clear by the decisions of this court, rendered since the cases already cited. In United States v. Rogers, 4 How. 567, 572, the court, referring to the locality in which a particular crime had been committed, said: "It is true that it is occupied by the tribe of Cherokee Indians. But it has been assigned to them by the United States as a place of domicil for the tribe, and they hold and occupy it with the assent of the United States, and under their authority. * * * We think it too firmly and clearly established to admit of dispute that the Indian tribes, residing within the territorial limits of the United States, are subject to their authority." In United States v. Kagama, 118 U. S. 375, 379, the court, after observing that the ludians were within the geographical limits of the United States, said: "The soil and the people within these limits are under the political control of the govern ment of the United States, or of the States of the Union. There exist within the broad domain of sorereignty but these two. * ** They were, and always have been, regarded as having a semi-independent position when they preserved their tribal rela tions; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social affairs, and thus far not brought under the laws of the Union or of the State within whose limits they resided. * **The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it has never existed anywhere else, because the theater of its exercise is within the geographical limits and because it alone can enforce its laws on all the of the United States, because it has never been denied, tribes." The latest utterance upon this general sub1, 27, where the court, after stating that the United ject is in Choctaw Nation v. United States, 119 U. 3. States is a sovereign nation limited only by its own Constitution, said: “On the other hand, the Choctaw nation falls within the description in the terms of our Constitution, not of an independent State or sovereign nation, but of an Indian tribe. As such, it stands in a peculiar relation to the United States. It was capable under the terms of the Constitution of entering into treaty relations with the government of the United States, although, from the nature of the case, subject to the power and authority of the laws of the United States when Congress should choose, as it did determine in the act of March 3, 1871, embodied in section 2079 of the Revised Statutes, to exert its legislative power." In view of these authorities, the contention that the lands through which the defendant was authorized by Congress to construct its railway, are held by the Cherokees as a sovereign nation, without dependence on any other, and that the right of eminent domain within its territory can only be exercised by it, and not by the United States, except with the consent of the Cherokee nation, cannot be sustained. The fact that the Cherokee nation holds these lauds in fee-simple under patents from the United States, is of no consequence in the present discussion; for the United States may exercise the right of eminent domain, even within the limits of the several States, for purposes necessary to the execution of the powers granted to the general government by the Constitution. Such an authority, as was said in Kohl v. United States, 91 U. S. 367, 18 essential to the independent existence and perpetuity of the United States, and is not dependent upon the consent of the States. United States v. Fox, 94 U. S. 315, 320; United States v. Jones, 109 id. 513; United

the purpose of the appropriation is altogether private, yet conceding it to be settled that these facilities for travel and commerce are a public necessity, if the Legislature, reflecting the public sentiment, decide that this general benefit is better promoted by their construction through individuals or corporations than by the State itself, it would clearly be pressing a constitutional maxim to an absurd extreme if it were to be held that the public necessity should only be provided for in the way which is least consistent with the public interest." But this precise question was determined upon full consideration in California v. Pacific Railroad Company, 127 U. S. 1, 39, where this court said: "The power to construct, or to authorize individuals or corporations to construct, National highways and bridges from State to State, is essential to the complete control and regulation of inter-State commerce. Without authority in Congress to estab

be without authority to regulate one of the most im. portant adjuncts of commerce. * * *Of course the authority of Congress over the Territories of the United States, and its power to grant franchises exercisible therein, are, and ever have been, undoubted. But the wider power was very freely exercised, and much to the general satisfaction, in the creation of the vast system of railroads connecting the east with the Pacific, traversing States as well as Territories, and employing the agency of State as well as Federal corporations." Upon this point nothing more need be said. May 19, 1890. Cherokee Nation v. South. Kans. Ry. Co. Opinion by Harlan, J.

MY SHINGLE.

States v. Great Falls Manufacturing Co., 112 id. 645; Van Brocklin v. State of Tennessee, 117 id. 151, 154. As was said by Mr. Justice Bradley in Stockton v. Baltimore, etc., R. Co., 35 Fed. Rep. 9, 19: "The argument based upon the doctrine that the States have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, cannot avail to frustrate the supremacy given by the Constitution to the government of the United States in all matters within the scope of its sovereignty. This is not a matter of words, but of things. If it is necessary that the United States government should have an eminent domain still higher than that of the State, in order that it may fully carry out the objects and purposes of the Constitution, then it has it. Whatever may be the necessities or conclusions of theoretical law as to eminent domain or any thing else, it must be received as a postulate of the Constitution that the government of❘lish and maintain such highways and bridges, it would the United States is invested with full and complete power to execute and carry out its purposes." It would be very strange if the National government, in the execution of its rightful authority, could exercise the power of eminent domain in the several States, and could not exercise the same power in a Territory occupied by an Indian nation or tribe, the members of which were wards of the United States, and directly subject to its political control. The lands in the Cherokee territory, like the lands held by private owners every where within the geographical limits of the Uni: ted States, are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it; provided only, that they are not taken without just compensation being made to the owner. But it is said that the objects for which the act of 1884 was passed are not such as admit of the exercise of the right of eminent domain. This contention is without merit. Congress has power to regulate commerce, not only with foreign nations and among the several States, but with the Indian tribes. It is not necessary that an act of Congress should express, in words, the purpose for which it was passed. The court will determine for itself whether the means employed by Congress have any relation to the powers granted by the Constitution. The railroad which the defendant was authorized to construct and maintain will have, if constructed and put into operation, direct relation to commerce with the Indian tribes, as well as with commerce among the States, especially with the States immediately north and south of the Indian Territory. It is true, that the company authorized to construct and maintain it is a corporation created by the laws of a State, but it is noue the less a fit instrumentality to accomplish the public objects contemplated by the act of 1884. Other means might have been employed, but those designated in that act, although not indispensably necessary to accomplish the end in view, are appropriate and conducive to that end, and therefore within the power of Congress to adopt. The question is no longer an open one, as to whether a railroad is a public highway, established primarily for the convenience of the people, and to subserve public ends and therefore subject to governmental control and regulation. It is because it is a public highway, and subject to such control, that the corporation by which it is constructed, and by which it is to be maintained, may be permitted, under legislative sanction, to appropriate private property for the purposes of a right of way, upon making just compensation to the owner, in the mode prescribed by law. It is well said by Mr. Cooley, in his Treatise on Constitutional Limitations, section 537, that "while there are unquestionably some objections to compelling a citizen to surrender his property to a corporation, whose corporators, in receiving it, are influenced by motives of private gain and emolument, so that to them

My shingle is battered and old,

No longer deciphered with ease,
So I've taken it in from the cold
And fastened it up on a frieze.

A long generation ago,

With feelings of singular pride,
I regarded its glittering show,
And pointed it out to my bride.

Companions of youth have grown few,
Its loves and aversions are faint;'
No spirit to make friends anew,
An old enemy seems like a saint.

My clients have paid the last fee
For passage in Charon's sad boat,
Imposing no duty on me

Save to utter this querulous note,

And still as I toil in life's mills,

In loneliness growing profound,
To attend on the proof of their wills
And swear that their wits were quite sound!

So I work with the scissors and pen,
And to show of old courage a spark,
I must utter a jest now and then,
Like the whistling of boy in the dark.

I tack my old friend on the wall,
So that infantile grandson of mine
May not think, when my life they recall,
That I died without making a sign.

When at court on the great judgment-day
With penitent suitors I mingle,
May my guilt be washed cleanly away,
Like that on my faded old shingle!

IRVING BROWNE

EXAMINATION

CORRESPONDENCE.

IN SUPPLEMENTARY PROCEEDINGS

UPON JUDGMENTS RENDERED IN COURTS OF JUS-
TICES OF THE PEACE.

Editor of the Albany Law Journal:

Section 2435 of the Code provides that after return of execution issued "as prescribed in section 2458 " etc., the creditor is entitled to an order for examination.

Section 2458 requires the execution to have been issued "out of a court of record."

In providing for the docketing of a transcript of judgment entered in Justice's Court, section 3017 says: "Thenceforth the judgment is deemed a judgment of the County Court of that county and must be enforced accordingly, except that an execution can be issued thereupon only by the county clerk as prescribed in section 3043," etc.

The latter section says: "The execution to be issued thereupon by the county clerk must be in the same form and executed in the same manner as an execution issued upon a judgment of the County Court"except, etc. The section does not declare that such an execution is "out of the County Court."

But now comes the decision of the Court of Common Pleas of New York in Merritt v. Judd, wherein an execution was issued (after docket of transcript) "out of the County Court," holding that consequently the supplementary proceedings founded thereon are void, and that such an execution is unauthorized. The published opinion makes no reference to section 2458. If this is correct how can debtors be examined in proceedings founded on transcripts?

Certainly the County Court is not a court of record. If execution be not issued out of a court of record where is the authority to institute proceedings? Certainly not upon return of a clerk's execution.

The requirement exacted by section 2458 is as to a court of record.

The only thing in the premises clear to me is that"here's a pretty how de' do." ROCHESTER, May 27, 1890.

M. N.

NEW BOOKS AND NEW EDITIONS.

AMERICAN DIGEST-ANNUAL FOR 1889.

This volume of twenty-two hundred pages-as big as a family Bible or Webster's Unabridged Dictionaryis a remarkable evidence of the enterprise and promptness of the West Publishing Company of St. Paul. It is unquestionably exhaustive, and is intelligently arranged, granting the propriety of its classification, which is not exactly accordant with our own notions. For example, we do not see why there should be a general head of Criminal Law and separate heads of all the different crimes, and so of Marriage and Husband and Wife. But the searcher can find what he wants with facility and certainty, provided he will turn to enough heads. The tables are very full and conven

ient.

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Wilson; Humphreys v. New York, Lake Erie and
Western Railroad Company; Wetmore v. Pierson;
Clark v. Fry; McKay v. Lasher; Baidwin v. N. Y. C.
& H. R. R. Co.; Sayles v. Jordan; Ruyter v. Reid.

OTHER DECISIONS.

Orders affirmed with costs-People v. E. Remington & Sons; claim of Ilion National Bank; In re will of James D. White. Judgment affirmed - People v. Fox. Judgment affirmed at leave of defendant to answer within twenty days upon payment of costsStokes v. Amerman.-Judgment reversed, new trial granted, costs to abide event - Pitchen v. Patchen; Lysman v. Niagara Fire Insurance Company; Holmes v. Jones. Order of General Term reversed and judg ment of Special Term affirmed with costs in all courts to the relator-People, ex rel. Town of Blenheim, v. Supervisors of Schoharie county. -Judgment of General

and Special Terms reversed, new trial granted, costs to abide event-Irving v. Campbell.--Appeals dismissed with costs-In re City of Rochester to acquire rights to draw water, etc.; Hudson River Telephone Company v. Watervliet Turnpike Company.-Orders of General Term affirmed, and judgment absolute ordered for defendants on the stipulation with costsCaswell v. Hazard; Remsen v. Wheeler.-Affirmed and judgment absolute ordered for defendant on the

stipulation with costs-Allen v. Earlover.— Vacate order dismissing appeal, and motion for reargument denied with costs - Adams v. Arkenburgh Motion Company.

-

SECOND DIVISION.

JUDGMENTS AFFIRMED WITH COSTS.

Bishop v. Village of Goshen; Tallman v. Murray; Record v. Village of Saratoga Springs; Crozier v. Bray; Scoville v. Shedd; Cohu v. Ammidoun; Mason v. Pendergast; Moore v. Townshend; Lu Gar v. Carey; Burdick v. Freeman; McNulty v. Hoyt; Brister v. Burr; Collin v. Green; Round v. Village of Oneida; Guidet v. New York, Lake Erie and Western Railroad; Lent v. New York Central and Hudson River Railroad Company; Greaves v. Deterling; Nelson v. New York, Ontario and Western Railroad Company; Hog v. Hellemson; Skinner v. Walter A. Wood Miniug, etc., Company; Edwards v. Dooley; Bly v. Vil lage of Whitehall; Roby v. American Central Insurance Company; Abbott v. New York, Lake Erie aud Western Railroad Company; Ehnthoelt v. McCarren; McCarragher v. Rogers; Ensign v. Ensign.

OTHER DECISIONS.

Judgment affirmed with costs in favor of plaintiffDemeti v. Demeti.-Order affirmed and judgment absolute rendered against appellant with costs-Treadwell v. Inslee.-Judgment and order affirmed with one bill of costs-Rima v. Rissie Iron Works.-Judg. ment reversed, new trial granted, costs to abide event -Bonne v. May; Fifth Avenue Bank v. Colgate; Importers and Traders' National Bank v. Colgate; Gilbert v. Whiting. Judgment reversed, new trial granted, costs of this court to the appellant unless within thirty days the plaintiff stipulates to modify the judgment by excepting therefrom the articles placed on the property after the assignment to Alford Heustis and described in schedule "D," in which event the judgment as modified is affirmed with costs to the appellant-Kribbs v. Alford.-Orders reversed and judgments entered on report of referee, affirmed with costs-Zoebish v. Von Minden; Dickenson v. Ensign.—Orders affirmed and judgment absolute renDennis v. Massachusetts Benefit Association.—Modered against appellant with costs-Taft v. Maisily; Motion for reargument denied with costs-Brennan V. tion for reargument granted-Roberts v. Tobias. ——— Gorden. Motion to revive and continue action against representative of defendant granted-Seaman v. Koehler.

The Albany Law Journal.

A

ALBANY, JUNE 14, 1890.

CURRENT TOPICS.

T the late assembly of the Judiciary Commission ex-Attorney-General Hamilton Ward proposed the following constitutional amendment in respect to the Court of Appeals:

"There shall be a Court of Appeals composed of a chief judge and thirteen associate justices; seven of whom shall be chosen by the electors of the State and seven shall be appointed by the governor, by and with the consent of the Senate, and shall hold their offices for a period of fourteen years, those elected from and including January 1 next after their election and those appointed from the time of such appointment. "The chief judge shall be elected. The chief judge and associate judges in office when this article shall take effect shall continue as such until the expiration of their terms, for whatever cause, and their successors, and to supply any vacancies existing in the pressent court and their successors shall be elected by the people; the other justices and their successors shall be appointed, but not more than three justices shall be appointed from the same political party.

"Any nine members shall form a quorum and the concurrence of eight shall be necessary to a decision when the court is acting as one body; but the court can at any time, whenever the chief judge and eight

associates so direct, be resolved into two divisions for the transaction of its business, each division to consist of seven members; over one body the chief judge shall preside, and over the other such associate justice as the chief judge shall designate.

a necessary evil in a scheme of a court numerous
enough to divide. But the full bench should be
resorted to as rarely as possible. The convening of
the full bench on some petty question, upon which
two of six judges should happen to dissent would
be a ludicrous spectacle. In our opinion Mr. Ward
exacts an inconvenient if not impossible degree of
unanimity. But the most serious objection, and
one which seems insuperable, is the provision for
appointing seven of the judges. This is a hybrid
scheme which will probably meet the fate of most
compromises. It probably would be "snowed un-
der" if it ever came before the people, and thus is
liable to the charge of utter impracticability. If
our system of electing judges is wrong, it should be
abolished, and the appointing system substituted.
If right, it should be retained throughout. It can-
not be half right and half wrong But we insist
that it is right, and that experience has demon-
strated its wisdom. Wo have recently had occasion
to write a historical sketch of the Court of Appeals
from its beginning, and have been deeply impressed
with the admirable character of all its judges, more
than a hundred in number. We believe that it
would have been impossible for any number of gov-
ernors, however well disposed, to make an equally
wise choice. Theorists are always crying out
against the system, and rhetorically exclaiming
against dragging the pure ermine of the bench
through the filthy pool of politics, and declaring
that elected judges are apt to be subservient to
party. But what is the answer to the test of expe-
rience? Who can point to a single judge of whom
this has proved true, or to a single case in the de-
cision of which there is the slightest suspicion of
political influence or bias? On the contrary, the
best judges have been active, not to say violent,
politicians before their election, and have apparently
lost nearly all interest in politics in the discharge of
their judicial duties. Church, Allen, Grover, Peck-

"When the court is acting in two divisions six mem-
bers shall constitute a quorum of a division and the
concurrence of five shall be necessary to a decision,
but in case any two members of a division dissent the
cause shall then be considered and decided by the
court acting as one body, and any cause may be re-
viewed by the whole court on reargument or other-
wise, and this shall be done in cases involving ques-ham, Folger, were warm politicians and party man-
tions upon which there is a disagreement between the
two divisions.

"The court shall direct what causes shall be disposed by each division and shall have the appointment with power of removal of its reporter, clerk and of such other attendants necessary. The Legislature shall not limit in amount involved the causes in which an appeal can be taken to the Court of Appeals."

There is evidently some ambiguity or omission in the middle of the second paragraph, but we print it as it is sent to us. A minor objection to this scheme is the requirement of nine for a quorum when the court sit together. A court of nine is always unwieldly and inharmonious. The more judges the more dissent.

Our pres

ent court is more numerous than it need be

for effective working. A quorum of five seems to us the proper number. A consultation of nine is certain to take a long time and to generate dissent. A more serious objection is the requirement of the concurrence of eight when nine sit, and of five when six sit, or in default that the cause shall be heard by the full bench. We think very little of a sitting of fourteen in any event, but it seems to be VOL. 41 No. 24.

agers. No Republican governor would have appointed the first four, nor any Democratic governor the latter. There never were greater or purer judges in the history of the State, and we should hesitate to abandon the system which has given us such magistrates for any untried theory of appointment. The superiority of the elective system is that if there is any thing against the nominee, it is sure to come out before election, while in the appointing system the canvass may be, and generally is, carried on secretly and silently, up the back stairs, and nobody knows who their judge is to be until he turns up on the bench. It stands to reason that a governor cannot know so much of the qualifications of candidates all over the State as the people of the respective localities. Another superiority of the elective system is that generally there are only two candidates, while in the governor's chamber it is frequently a scramble among a half-dozen or more, among whom the executive finds it difficult to decide. We believe too that there is generally more public confidence in a public nominee than in one named by the governor. No unworthy or unselfish

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