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NEW YORK COURT OF APPEALS ABSTRACT. The court also refused to charge that if the evidence

on which the alleged modification of the written conBANKRUPTCY-POWER OF COURT TO REQUIRE BOND tract depends is only of what took place contempoOF INDEMNITY FROM PETITIONING CREDITOR.-- In raneous with the execution of the written contract, bankruptcy proceedings, after a provisional warrant then no modification was shown. Held error. June had been issued and executed against the estate of the 1, 1886. Corse v. Peck. Opinion by Andrews, J. alleged bankrupt, on a motion to recall the same, the

FORMER JUDGMENT - CREDITOR'S ACTION BY WIFE court made an order requiring the petitioning creditor

AGAINST HUSBAND-SUBSEQUENT DIVORCE-ESTOPPEL to give bond to judemnify the alleged bankrupt for

-LIEN. — (1) Plaiutiff recovered fivel judgments in any damages he might sustain by the seizure of bis County Court against John Carpenter, her husband, goods, etc., under said warrant, “if ou the final hear- for installments of income due her on articles of seping of said creditor's petition to have the defendant aration, in which she had agreed to support herself, adjudicated a bankrupt, the said defendant shall prove and sign all deeds; he to pay her a stated sum each that he is not bankrupt and the proceedings against month. Upon the trial of the several actious the valhim by the said petitioning creditors shall be dis- | idity of the agreement of separation, and the status of missed," etc. Upon an agreed statement of facts re

plaintiff as a creditor of her husband, was litigated citing a trial and judgment in a state court, wherein

between the parties thereto, and was in each action it was determined that the petitioners in the bank- decided in her favor. In this action to set aside as ruptcy proceedings were not in fact creditors of the fraudulent certain conveyances of real estate execualleged bankrupt, the cause was submitted to the court

ted by him to defendants, held, that the questions who ordered judgment for the defendant. Held, that

were res adjudicata, and defendants were precluded the bankruptcy court had the power to require said

from raising them in this action. The defendants acbond, and defendants were liable for a breach thereof.

quired title to the real estate in question from John When in the exercise of their discretion, courts may

Carpenter, and necessarily took it at the risk of any grant or withhold a favor asked for, they possess in- incapacity in him to convey a good title, and so far as herent power independent of common law or any that was affected by the rights of existing creditors, statute to impose any reasonable terms or conditions

bis frauduleut grantees were equally bound by such upon which the favor is to be held. June 15, 1886. legal adjudications as might be made against him in Sonneborn v. Libbey. Opinion by Danforth, J.

respect thereto as John Carpenter himself. Candee COVENANT

- DAMAGES.- (1) v. Lord, 2 N.Y.269; Rogers v. Rogers, 3 Paige,379; ShuDefendant covenanted with the city “to pave the felt v. Shufelt, 9 id. 137 ; French v. Shotwell, 6 Johns. streets in and about the rails of its track in a perman

Ch. 234; Raymond v. Richmond, 78 N. Y. 354; Bigeent manner, and to keep the same in repair to the low Estop. 102; Voorhees v. Seymour, 26 Barb. 585. (2) satisfaction of the street commissioner." Held, that | The plaintiff had, subsequent to the separation, prothe covenant extended to the entire space between the

cured a decree for an absolute divorce from her hustracks. (2)Where a covenantee has made repairs which band, with no provision for her support. Held, that the covenantor was bound, but has neglected to make, this did not affect her pecuniary claims on him, if and has proceeded in the usual way, and no fraud is secured by legal obligations, either for dower or to an showi, nor any facts to impeach the reasonableness of allowance by way of alimony. It was claimed by the the account, the sum actually expended in the work defendants that marriage was the gravamen of the is prima facie the sum which he is entitled to recover. separation agreement, and that its annulment by the June 22, 1886. Mayor, etc., v. Second Avenue R. Co. decree necessarily subverted and destroyed the obliOpinion by Andrews, J.

gations of the contract. It is quite obvious that this CRIMINAL LAW – DEPOSIT OF MONEY IN LIEU OF

proposition, if generally correct, would not affect the BAIL:-(1) Section 286 of the Code of Criminal Pro- validity of judgments for lawful debts already obcedure, providing that a defendant, instead of giving such decree was obtained. But we are also of the

tained, and standing unpaid and unreversed when bail, may deposit with the county treasurer the sum

opinion that there is nothing in the terms or characmentioned in the order adınitting him to bail, con

ter of the agreement referred to which authorized templates that the deposit is to be made by the defeudant himself and by no one else. (2) When the de

John Carpenter to commit adultery, or to violate with posit is made by any party other than the defendant,

impunity the obligatious of his marriage contract, it will be deemed to have been made for the defend

without incurring the penalty which the law imposes ant, and if conviction follows and a fine is imposed is no express or implied condition in the contract that

upon an offending party for such misconduct. There the court may, under section 598, order the fine to be paid out of the money so deposited, and the balance,

the plaintiff should continue to remain the wife of if any, paid to the defendaut. June 22, 1886. People

Jobu Carpenter, but the obligation to pay interest was v. Laidlow. Opiniou by Earl, J.

to continue unconditionally during her natural life.

The contract looked toward a separation, and not to a EVIDENCE-WRITTEN CONTRACT-MODIFICATION BY uvion of the parties; and a lawful separation, if proPAROL-NEW AGREEMENT.--A written contract may duced without the misconduct of the wife, could not be modified by a subsequent new and distinct oral affect her pecuniary claims, if secured by legal obligaagreement upon a new consideration, but in this case tions. The right of the wife to dower in the lands of the oral evidence of the bargain, and of the explana- her husband, or to an allowance by way of alimony out tion accompanying the executiou of the written con- of his estate, could not be impaired by a divorce tract, instead of showing a modification of the writ- granted for his misconduct; and the existence of an ing, tends to show simply that the writing never ex- agreement whereby her future support by him was pressed the real agreement of the parties, and plain- secured by a lawful obligation would afford a good tiff allowed it to etand unaltered, on the assurance of reason why in equity her claims upon his property Martiu that a delivery of a certain less number of should not be provided for in the decree in divorce. brick per month would be accepted in lieu of the numi- The absence of such a provision seems to confirm, ber called for by its terms. Hell, that the court erred rather than destroy the provisions of the contract, in refusing to charge that what took place between and looks to its expected continuance as a just and the parties previous to or at the time of the execution proper provision for the wife. Blaker v. Cooper, 7 of the written contract was inadmissible to vary or Serg. & R. 500. (3) It is further claimed that the plaiumodify it, and that a new agreement must be shown. tiff is estopped from questioning the validity of the

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several conveyances from John Carpenter to the other paid from the proceeds of such sale. The fair import defendants, because she joined with him in their ex. of this demand was to entitle the plaintiff to so much ecution. It was fouud by the trial court that these of the relief demanded as was within the power of the conveyances were executed by John Carpenter, and court to grant; and if a rendition of a money judgreceived by the defeudants, for the purpose of de- ment for such installments was necessary to confer the frauding the plaintiff, and without knowledge on her relief sought, the court had undoubted authority, part of such fraudulent purpose. The claim made, under the prayer for relief, to order such a judgment. that Carpenter could, under his contract with his The proof of the separation agreement, and the rewife, require her to execute deeds releasing her dower

covery of previous judgments thereon, constituted in all his lands, under the penalty of forfeiting all of conclusive evidence of the rights of the plaintiff, as a her rights theremder in case of refusal, and yet ro- oreditor of John Carpenter, under such agreement, quire her to execute such conveyances as should for- for the amount appearing to be due and unpaid ever disable Carpenter from performing the obliga. thereon, authorized tbe court to render judgment tions to her, which formed the only consideration for against John Carpenter, for such amounts as were not her agreement, is too absurd for serious consideration. already in judgment. The rule which precludes a The proposition is elementary that fraud vitiates all court of equity from entertaining jurisdiction of an contracts, and a construction of an agreement which action to set aside a fraudulent conveyance at the suit would hold an innocent party to his contract, and of a simple contract creditor would seem to render still authorize the other to defeat his obligation by his the judgment appealed from erroneous, so far as it de. own fraud, is unsupported by any rule with which we clares such a debt a lien upon the property in question, are familiar, The only ground for such a claim would get the rendition of a pecuniary judgment in this acbe that of estoppel, and that is untenable when all of tion is authorized, and would seem, so far as the the parties to the act except the plaintiff were cogniz. parties to this action were concerned, to place the ant of all of the facts relating to the transaction, and plaintiff in a position to enforce it hereafter against were not deceived or misled by the plaintiff's action. such real estate by appropriate proceedings therefor. They were all active participants in the fraud prac- These views lead to a modification of the judgment by ticed upon the plaintiff, and are not justified in as- striking out so much thereof as declared it a lien upon serting any rights secured thereunder as against the the real estate for the installments not previously in defrauded party. Iu our view, the only serious ques- | judgment, and to an affirmance of its other provisions. tion in the case relates to the additional relief granted June 15, 1886. Carpenter v. Osborne. Opinion by Ruby the court below in declaring a lien upon the laud in question for the several installments due, but not

MORTGAGE – in judgment, when the action was commenced. We

- FORECLOSURE PART OF PREMISES IN are of the opinion that the court, having acquired jur

ANOTHER STATE-ENFORCEMENT.-A decree of foreisdiction to decree such conveyances fraudulent and

closure is valid although part of the premises covered void as to judgments previously recovered, was all

by it are in a sister State; and although the judgment thorized to grant such further relief, within the scope

cannot be enforced as to such property, yet the court and meaning of the issues made, as the parties might

may require the mortgagor to execute a conveyance be equitably entitled to in connection with the trans

of the same to the purchaser under the judgment, in action under investigation. (4) The court below de

order that the whole security may be made effective. clared the judgment tu be a lieu upon the land in

Miller v. Dows, 94 U. S. 450. June 15, 1886. Union question for the several installments due, but not in

Trust Co. v. Rochester R. Co. Opinion by Danjudgment when the action was commenced. Held

forth, J. error, that the court was limited to the installments

PURCHASE BY PLAINTIFF -- AGREEMENT in judgment, and that this judgment should be cor- RECONVEY.-án arrangement was made by the attorrected to that extent. This principle has been ap- ney of both parties in an endeavor to perfect a title by plied in many cases in awarding judgment for pecu- letter to the effect that a foreclosure salo was to take niary damages, even when the party bad an adequate place in due and lawful form, and that if the plaiptiff, remedy at law, if the damages were connected with a or any one for her, became purchaser, she should go transaction over which the courts had jurisdiction into possession as such, but that at any time within for any purpose, although for the purpose of collect- one year “after taking title" she should reconvey to ing damages merely they would not have had juris- defendant upon being paid the mortgage debt, inter: diction. Bradley v. Bosley, 1 Barb. Ch. 152; Clarke v. est, etc. Held, that plaintiff was entitled to a deed White, 12 Pet. 188; Franklin Ins. Co. v. McCrea, 4 from the referee, and is not liable to account ns mortGreene (Iowa), 229; Brooks v. Stolley, 3 McLean, 523. gagee in possession, since she is in as purchaser. June The court below had unquestionable jurisdiction to 8, 1886. Belter v. Lyon. Opinion per Curiam. award relief against the conveyances in question as to

NEGLIGENCE-DAMAGE BY FIRE the judgments recovered; and although not entitled

DEFECTIVE FIRE to award such relief as to claims not in judgment, it

SCREEN ON LOCOMOTIVE.- Where there is a conflict of still had power to grant any other relief to which the

evidence as to whether the fire producing the damages party was legally entitled, although it might result in

complained of was caused by an engine upon defendconsequences similar to those afforded by a decree

ant's road which was fully protected in respect to firedeclaring a lien. The legal effect of the decree setting

screen, or by another engine passing at about the same aside the conveyances was to vacate and annul the

time with a defective fire-screen, it becomes a questitle conveyed by John Carpenter to the several

tion of fact for the jury to determine which engine grantees pamed in his deeds, so far as it stood in the

caused the fire. June 8, 1886. Sheeley v. N. Y. C. & way of the collection of the plaintiff's judgment, and

H. R. R. Co. Opinion per Curiam. as against the parties to this action, of any other

CONTRIBUTORY NEGLIGENCE--CROSSING RAILclaim arising out of the same transaction which should

ROAD WHILE IN PROCESS OF REPAIR.-Plaintiff, who be thereafter lawfully put in judgment. The plain

was deaf, undertook to drive across the railroad where tiff's complaint alleged that several installments aside

a portion of the track was in process of construction. from those in judgment were then due and unpaid and although the foreman at first requested him to upon the separation agreement, and asked that the

wait. On his proceeding he directed a workman to lead same be declared a lien upon the said real estate, and

the horse over, but after passing over, the horso startthat the property be sold, and such installments be

ing, the man let loose, and the horse running against a


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per Curiam.

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telegraph pole was injured. Held, that the questions are an exhibit of taxation without representation un-
as to whether the railroad exersised proper care and paralleled in the history of the New World."
skill in the performavce of the work, and as to pre- If the Court of Appeals is desigued, or ought to be
venting obstructions to passers by, and as to whether a representative body, the complaint of the irate New
defendant was chargeable with contributory negli- | York or Brooklyn “member of the bar" is well
gence, were for the jury, as was also the cause of the founded. Indeed a still worse case might be stated!
injury. Held, also, that plaintiff bad reason to be- The farmers, in the aggregate pay vastly more taxes,
lieve, from the fact of defendant's workman in leading and are vastly more numerous thau the lawyers; but
the horse over, that the crossing was safe. June 8, not a farmer has ever been elected to the Court of
1886. Rembe v. New York, O. & W. R. Co. Opinion Appeals. Just so of the mercbants: they are many

times more numerous, and pay an amount of taxes
vastly greater than all the lawyers; but not one of the

judges is a merchant, and all are lawyers. If the court CORRESPONDENCE.

is a representative body this is all wrong. One lawyer

out of the seven would be a liberal allowance to the THE CITY COURT OF NEW YORK.

profession; while the other six should be taken from

farmers, merchants, mechanics, bankers and laborers: Editor of the Albany Law Journal:

and the ministers and doctors might occasionally deWill you kindly inform me through your columus mand a representative. what the “ New York City Court" is, and where tbere The fallaoy of the irate Metropolitan is in assuming is any authority in law for the organization of such a that the court is, or ought to be, representative in the court, and oblige a large number of country lawyers ? | ordinary sense. The court should be composed of

SUBSCRIBER. good men, learned in the law, of unimpeachable integCUBA, Allegany Co., N. Y., Aug. 18, 1886.

rity, and of fair and judicial mind. If this is accom

plished, what does the litigant care where the judge [The City Court is the successor of the Marine resides? “Decide my case justly, and according to Court, and being a local court of limited jurisdic- law,” is all that he ought to demand, and is all that tion, was established by legislative enactment.-Ed.] the public interest demands. It is notorious that most

of our greatest judges have not lived in the First or Second Departments. Denio, Comstock, the Seldens,

Grover, Hunt, Johnson, Church and Folger are a few LAPSED DEVISE.

of the distinguished names that occur to me at the

moment of writing. They all lived out of the metroEditor of the Albany Law Journal:

politan district. Were they any the less acceptable as A testator dies several years after making his will, judges, even to New York city litigants and lawyers, wherein he gives and devises to a certain person one

than if their home had been in New York? The writer of his farms. But between the date of the will and

of the circular would imply that lawyers living in bis death the testator sells the farm by contract for Buffalo, Syracuse, Rochester, Utica, Albany and Troy deed to a third person, who at once takes possession, and the other towns and cities of the State outside of and is in possession at the time of the testator's death, New York and Brooklyn, were mainly occupied with without any forfeiture of the contract, and is ready agricultural law, and know little or nothing of igaand willing to perform it according to its terms.

tion arising from “trade, commerce and wealth." It Question : Does the devise fail by act of testator is the writer of the circular kuew no more of the law on his life-time? or is the conditional title in devisee,

these subjects than he does of the character of litigaplacing him in the situation of party of the first part tion in the interior of the State, we should all pray in contract for deed ?

that New York city might not be “represented" on the Can you refer me to any authority on this ques

bench by "the likes of him." tion?

There are several reasons for the comparatively Respectfully,

small number of judges that have been selected for the

J. B. DALEY. Court of Appeals from New York and Brooklyn. The PRATTSVILLE, N. Y., Aug. 21, 1886.

principal one is that there are but few, if any, of the [The devisee gets nothing. 1 Jarm. Wills, ch. 5, best lawyers of the metropolis who would take the po$ 3.-ED.]

sition. The salary is entirely inadequate for a fire class New York or Brooklyn lawyer. Judge Tracey,

whom the writer of the circular mentions, would not THE COURT OF APPEALS JUDGESHIP.

take a nomination for the office at the expiration of

the term to wbich he was appointed. What leading Editor of the Albany Law Journal:

New York lawyer would to-day accept the nominaA printed circular, entitled “ Court of Appeals tion from either party if tendered him? On the conJudgeship," and signed, "A Member of the Bar," has trary, the professional income of the best country been forwarded to nie here, and I presume has been

(and by this I mean to include the entire State out of circulated freely among lawyers of New York. It is New York and Brooklyn) lawyer is not ordinarily so designed to show the gross injustice hitherto done to great that he would make a very great pecuniary sacri. the First and Second Judicial Departments in the fice by exchanging it for the salary of a Court of Apelection of judges of the Court of Appeals. The writer peale judge. drops freely into figures, and shows clearly (what Again, law business in New York city is running everybody knows in a general way) how greatly these more and more into specialties. But few lawyers two departments, comprising the two great cities of there have that variety of business which falls to the New York and Brooklyn, exceed any other depart- lot of a lawyer in active practice in the country. Other ment in population, wealth, amount of litigation, and things being equal, the country lawyer is better equipamount paid in taxes. Hence, says the writer, great ped to meet and consider the vast variety of questions injustice is done these populous cities, in that they that come before the Court of Appeals than is his methave but one of the citizens of the First or Second ropolitan brother, who has confined himself mainly to Departments on the Court of Appeals bench; or to use some special departinent of the law. the language of the writer, “These figures *

Looking at the subject dispassionately, it seems to

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me that what should be sought for in the judge to be lished by the F. H. Thomas Law Book Company of elected this fall (provided it can be found combined St. Louis, and is handsomely printed. The plan of the with other necessary qualities) is judicial experience. work is not a favorite of ours. We much prefer origiWhen the court was organized in 1870, three of the nal works, embodying the decisions in the text to textseven-Allen, Grover and Peckham-had long occu- books written by foreign authors and annotated by our pied the Supreme Court bench, with honor to them- own. There is always more or less superfluous or ivconselves and to the advantage of the State. Now Judge sistent matter in an English text book, and even when Miller is the only Judge of the Court of Appeals who it has been harmonized and made strictly applicable, it ever sat as judge at Circuit or at General Term. suffers an inconvenience from the extensive matter Every other Court of Appeals judge has been pro- necessarily placed in foot notes. The original of this moted directly from the bar to the bench of the high- work is written on a peculiar plan of division of subest appellate court. It seems to me not only desira- ject-matter. The author treats of veglect of duties ple, but highly important, that the Court of Appeals requiring ordinary care; of those requiring skill, or should not be entirely without men who know by ex- more than ordinary care; and of those requiring less perience the trials and difficulties that beset a judge at than ordinary care. This is a novel treatment, and Circuit; in other words, that Judge Miller's successor we are by no means certain that we are reconciled to should be a man who has been a justice of the Su- it. It seems to us to require a great deal of unuecespreme Court, or of one of the local courts of equal ju-sary discrimination to tell in which class to put a given risdiction. Judge Peckham has been mentioned as There is no apparent fault in Mr. Whittaker's the Democratic candidate, and he would in my opin- editorial work. He refers to all the important cases, ion “ fill the bill” in all respects. So would any one even the most recent, and states them succinctly. We of the several justices of the Supreme Court in the wish however he would not use “R. R." for “RailFirst and Secoud Departments, or of the New York road,” which is, or ought to be, a single word. This is Superior Court, the Court of Common Pleas of New only less vexing than “R. W.” for “Railway" or York or the City Court of Brooklyn that might be “Ry.,” which many use. It is pretty certain that no named. But would they exchange their present lib- recent important case has escaped Mr. Whittaker, and eral salaries for the greater honor and smaller pay of a herein is perhaps the greatest merit of the present seat in the court of last resort? The Republicans, too, publication. Armed with this and the admirable have plenty of Supreme Court justices and ex-justices works of Thompson and Beach, the practitioner is from whom to select.

perfectly equipped. The Fourth District has never had a Court of Appeals judge; the Eighth District has noue now. There are good and able men and Republicans of judicial ex

ADAMS' JUDICIAL GLOSSARY. perience in both these districts. If the Republicans A Judicial Glossary: Being an exhaustive compilation of shonld nominate one of them, and the Democrats Judge Peckham of the Third District (which will be

the most celebrated maxims, aphorisms, doctrines, preleft unrepresented when Judge Miller retires), or some

cepts, technical phrases and terms employed in the Roexperienced judge from the First or Second District,

man, civil, feudal, canon and common law, expressed in the Court of Appeals will be strengthened, or at least

foreign languages and quoted in the standard elementary kept good, whichever party shall succeed, and will not

works and reports of the British and American courts: be entirely deprived of that element of prior expe

and also an exhaustive compilation of adages, axioms, rience as a trial judge, which was considered as so im

proverbs, mottoes, etc. Alphabetically arranged and portant when the court was organized.

carefully translated into English, with explanatory notes

and citations, for the use of the legal profession and the ANOTHER “MEMBER OF THE BAR."

intelligent laity. By Henry C. Adams. vol. 1: A to BY THE SEASIDE, Aug. 14, 1886.

Eyre. Pp. 883. Albany : Weed, Parsons & Co., 1886.
The author is certainly right in saying in his preface

that this “is the first brave, honest, indefatigable ven-

ture of its kind ever attempted by oue man, almost

single-handed and aloue, on either side of the AtlanEditor of the Albany Law Journal.

tic," and is entitled to “demand that hypercritical In answer to your correspondent (ante 160) as to criticism shall have no place.” A careful reading of “bungling legislation,” the fact is that the section of the title page will show that this work is quite disthe Code referred to in his communication was not tinct from the ordivary law dictionaries of Jacobs, amended in 1886. Chapter 672, section 5, of said act is Bouvier and Abbott, and it is also a huge magazine of as follows:

maxims - five thousand, the author states. Our own “$ 5. Section one hundred and eleven of the Code of scholarship is neither exact nor extensive enough to Civil Procedure shall read as follows: "A new section enable us to judge of the author's work very critically, enacted and given the number of this repealed sec- but the enormous learning, research and labor are aption."

parent to any one. We can easily believe the author's Yours,

statement that he has been at work on it for twenty J.T. C.

years. Another thing we can vouch for, that it is an ALBANY, N. Y., Aug. 24, 1886.

extremely interesting and enlightening book to open
at any page and read, as it is illustrated by copious ex.
tracts from the classic poets, comedians, orators, phil-

osophers and rhetoricians. The work must be indisNEW BOOKS AND NEW EDITIONS. pensable to every lawyer who makes any claim to

scholarship and to other professional men.

We heartWAITTAKER'S SMITi On NegLIGENCE. ily wish the author success in his great undertaking.

It may be pardoned to us perhaps to call attention to This is the first American from the second English the peculiar and elegant typography of the volume, edition, and has been extensively annotated by the for it is evident to any printer or publisher, and is of American editor, who states that he has added refer- a novel and striking arrangement, very grateful to the

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to three thousand cases. The book is pub eye and convenient for quick reference.


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reports the great name of his uncle. He has the real

The Albany Law Journal. judicial character and temperament

, the great learn

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ing, the patience, the cool way of considering all ALBANY, SEPTEMBER 4, 1886.

things, the candor, the entire freedom from bias, suitability of age, moderation in politics, the excel

lent literary style — in short, a man born to CURRENT TOPICS.

be & judge. Mr. Cowen has not the pecu

liar characteristics which make a successful cirTHE canvass for the Court of Appeals judgeship cuit judge, and which Judge Peckham has. So is growing interesting. A correspondent of

we hope that Judge Peckham will stay where he is, this journal, a very eminent lawyer, "last week and that Mr. Cowen will enter upon the slavery of thoroughly exploded the pretensions of the first and the Court of Appeals bench. There are other fit men second districts to the office. These localities are in both parties, no doubt. Very excellent nominaadequately “represented ” at present. There is also tions might be made from the Supreme Court bench, some force in our correspondent's idea that the new

but we should like to see both parties unite on a judge should have had judicial experience, but this candidate, and there seems no probability of their argument would not avail very much in Judge doing it except in the case of Mr. Cowen. Peckham's favor, whose experience on the bench has been very short. Then there are not many judges We publish this week the first half of the report of who could sit out the term. Judge Ingalls, of Troy, the committee of the American Bar Association on would be very acceptable, but he would not delay and uncertainty in judicial administration. It take the place and he could not complete the term. is a very important and interesting document. It is It is important to find a man who can sit out the signed by Messrs. Field, Dillon, Thompson and term, and it would be desirable to find one on whom Wright. Mr. Cortlandt Parker made a minority reboth parties would unite, and thus adhere to the port. Last week we announced the adoption of the excellent precedents already set in several instances committee's recommendation on codification. The in this State. The talk about “keeping the court other important topics are the jury system and the democratic or “making it republican" is very "contingent fee business." We do not entirely unwise and thoroughly detestable. It is encouraging agree with the committee about the former, but do to learn that Chief Judge Ruger and Judge Andrews most heartily as to the latter. Judge Wright made an have been using their influence toward the adoption addendum to the report for himself on these two of a single candidate, although it is difficult to see points. He would preserve the jury system, exerwhy Governor Hill should have it in his power or cising more care in the selection of jurors, and giving presume to dictate the nomination. It is bad enough the judge the right to comment and give his opinion for him to defeat the intentions of the law-makers on the evidence, but having the instructions always without also declaring who shall or shall not be the in writing. In conclusion he said: “As to 'chamlaw-expounders. It is still more difficult to see whypertous engagements,' I have to say that they should the Governor should insist on Mr. Attorney-General be discountenanced and prevented by all lawful O'Brien as the candidate of his party. It is safe to

The temptation to dishonest practices and say that Mr. O'Brien could not be elected. It is the use of unprofessional shifts and devices' are also safe to say that the parties would not unite on strong enough where the retainer and services are Judge Peckham, who has been a hot partisan, and upon a contingency; and to allow the attorney, that the republicans would make the running very under any circumstances, to advance and become lively for him should the Governor consent" to liable for costs and expenses, tends to pollute the his nomination. Judge Peckham is our townsman whole fountain, and he becomes the interested in whose character, abilities and success we take practitioner and not the true and noble advocate. pride, but he has not by nature the temperament and We have enough of contingent retainers — attorneys characteristics which best fit a man for the Court standing in the way of clients agreeing with their of Appeals bench, and on the other hard he has the adversaries, because of their struggle to make illegitiforce, vigor and incisive common sense which in

mate gain. If the attorney will make a champertous time would make a capital circuit judge of him. In | agreement, since, of course, the client makes the a short time he would find the constant sitting and retainer with full knowledge, I would have it, writing and delving of the other place insufferably when disclosed, operate to dismiss and forever bar tedious, just as his father did. On the other hand, plaintiff's cause of action, or the claim is preferred if Mr. Cowen, who is said to be the person suggested by defendant. A large per cent of our litigation is by the chief judge and Judge Andrews, would ac- set on foot and continued by reason of those iniquicept the office — and we are by no means certain tous champertous arrangements, to the detriment of that he could afford to — and should be named by the public interest and the reproach of the bar and the democrats, it is quite possible that the republi- of our judicial system. Discountenance and prevent cans would adopt him. The Troy Times intimates these in all ways possible.” There is another recomas much. At all events Mr. Cowen would make an mendation we would suggest, namely, make the ideal judge. He is one of the most eminent lawyers speculating attorney liable for costs. As the law of the State, and would worthily carry down in our now stands, the attorney is a substantial party with


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