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WITNESS. (1) The indictment charged appellant and four other persons with jointly making to John Fay certain false representations as to the value of a mortgage of $2,000 on certain lands in Ulster county, by which he was induced to convey his farm, in Geddes, and accept such mortgage and $500 in payment. Held, that the right of the prosecution to try the prisoners separately is fixed by statute. Code Crim. Proc., § 462. (2) Fay was asked, on cross-examination, if before the bargain was closed he had been advised by his counsel not to accept the mortgage without an examination of the land. The question was excluded, but the fact was afterward fully proved by Fay's counsel on his (the counsel's) cross-examination, but Fay was afterward recalled by plaintiff, and answered the question, under appellant's objection, in the negative. Held, that no harm resulted from the error, and that it was immaterial. (3) A juror had an impression as to the guilt or innocence of the prisoner, but would be governed by the evidence, and could render an impartial verdict according to it, and give the prisoner the benefit of every reasonable doubt, and acquit him if such doubt existed. Held, to be competent. (4) How far the examination of a prisoner may be carried in regard to his history and mode of life is necessarily very much in the discretion of the court. June 25, 1886. People v. Clark. Opinion by Finch, J.

ABSTRACTS OF VARIOUS RECENT DE-
CISIONS.

ACCORD AND SATISFACTION-WHAT NOT SUFFICIENT. -Defendant sent to the plaintiff a statement of its account, a note for the apparent balance, and a letter explaining some items, and ending, "trusting you will find this correct and satisfactory," etc. The plaintiff kept the note, but there was nothing that indicated that it was offered in satisfaction of the account, or that any condition was attached to its acceptance. Held, not to be an accord and satisfaction. There was no act or declaration accompanying the giving of the note that amounted to a condition that if accepted it was to be in satisfaction of the claim; nothing to give the plaintiff to understand that if he took it, he took it subject to such a condition. Vt. Sup. Ct., Aug. 6, 1886. Boston Rubber Co. v. Peerless Wringer Co. Opinion by Taft, J.

ANIMALS-INJURY BY-SCIENTER.-In an action for injury to the plaintiff by the defendant's horse striking him with its fore feet, evidence that the animal had the vicious propensity to injure mankind by kicking with its hind feet, of which propensity the defendant had knoweldge, may be received. It is not necessary, in order to fasten a liability upon the owner, that he have notice of a previous injury to others. Rider v. White, 65 N. Y. 54; Godsan v. Blood, 52 Vt. 252; Worth v. Gilling, L. R., 2 C. P. 1; Judge v. Cox, 1 Stark. 285; Cooley Torts, 344. It is the propensity to commit the mischief that constitutes the danger (McCaskill v. Elliott, 5 Strohb. 196), and therefore it is sufficient if the owner has seen or heard enough to convince a man of ordinary prudence of the animal's inclination to commit the class of injuries complained of. Eightlinger v. Egan, 65 Ill. 235; Buckley v. Leonard, 4 Denio, 500; Applebee v. Percy, L. R., 9 C. P. 647; Abb. Trial Ev. 645; Shearm. & Redf. Neg. (3d ed.), § 190. The question in each case is, whether the notice was sufficient to put the owner on his guard, and to require him, as an ordinarily prudent man, to anticipate the injury which has actually occurred. Cooley Torts, 344. Hence it is unnecessary to prove more than that he has good cause for supposing that the animal may so conduct. Kittredge v.

Elliott, 16 N. H. 82. And a good cause for so supposing in the present case was the defendant's knowledge that the animal was of vicious disposition and a "notorious kicker;" and the jury might well conclude from these undisputed facts alone that the defendant pensity to make him liable for its subsequent attack had sufficient knowledge of its vicious nature and proon the plaintiff in consequence of that nature and propensity. For when it is made to appear that any domestic animal is vicious and inclined to do hurt, and the owner has notice, express or implied, of the fact, the law then imposes upon him the duty to keep the animal secure, and makes him liable to any person, injured by it. And this rule is so entirely reasonable, who without contributory negligence on his part is and is so strictly in accordance with the legal and moral duty, obligatory upon everybody, so to keep and use his own property as not to wrong and injure others, that authorities need not be cited in its support. N. H. Sup. Ct., July 3, 1886. Reynolds v. Hussey. Opinion by Blodgett, J.

DAMAGES ΤΟ GROWING CROPS OPINION EVIDENCE.-In an action brought to recover damages for injuries to plaintiff's growing crops by the flowing of his land alleged to have been caused by ditches dug by defendant to drain its road-bed, the damages are to be estimated as of the time of the injury, and the measure of damages is compensation for the value of the crops in the condition they are in at that time. 3 Suth. Dam. 381, 382; Richardson v. Northrup, 66 Barb. 89; Folsom v. Apple River, etc., Co., 41 Wis. 609. In applying this rule a considerable latitude of inquiry is permissible from the nature of the case. The estimate must be based largely upon the condition, stage of growth, and promise of the grain, and the capacity of the land to produce crops; and in addition to the opinions of witnesses qualified to speak in reference to the extent of the injury and of the value of the growing crop in its then condition, we think it would be proper to receive evidence of the average product or yield of like crops upon the same and other lands in the neighborhood, under like circumstances and conditions, and also the average market value of such grain, within reasonable limitations as to time and the expense of harvesting and marketing, to be submitted to the jury under proper instructions by the court. If the estimates are extravagant, the evidence may be sifted upon cross-examination and controverted by witnesses. Folsom v. Apple River Co., supra; Whitbeck v. R. Co., 36 Barb. 647; Grand Rapids Boom. Co. v. Jarvis, 30 Mich. 327; Allison v. Chandler, 11 id. 542; Williams v. Currie, 1 Man., G. & S. 841. The court therefore properly admitted evidence tending to prove the average amount of wheat and oats per acre usually raised on these or similar lands in the vicinity during the years in question. All estimates must include and make allowance for the risk to the growing crop, but may also include the reasonable probability of its coming to maturity, and its value when so matured, and that it will be of the average value of such crops; and where the evidence develops with reasonable certainty the average price of the matured grain for that year during the marketing season, it becomes an element which the jury may consider in their estimate of damages to the then growing crop in arriving at a conclusion as to the amount of compensation which the plaintiff may be entitled to for crops injured or destroyed. Armstrong v. Smith, 44 Barb. 125. This would seem to follow from the rule adopted in Goebel v. Hough, 26 Minn. 253; and Boom Co. v. Prince, 24 N. W. Rep. 345, 346. Minn. Sup. Ct., July 12, 1886. Limmerland v. St. Paul, etc., R. Co. Opinion by Vanderburgh, J.

DEED BOUNDARY ON HIGHWAY - QUANTITY CONVEYED.-A warranty deed described part of the premises conveyed as "the horse-shed on the west side of the highway, with the land covered by the same; the grantee to have the right and privilege to go on land of the grantors around the shed for the purpose of repairing the same." Held, that the land conveyed was that actually covered by the shed as it then stood without reference to the true line of the highway. In Falls Village Water Power Co. v. Tibbets, 31 Conn. 167, it was held by this court, Butler, J., delivering the opinion, that a road or highway, mentioned in a deed as a boundary, must be understood to mean what is meant by other existing objects or monuments described and intended as boundaries, namely, an object existing in fact, not of record merely, something apparent, unmistakable and permanent." And this positive rule was applied to a case where the special reasons for such an application were not nearly as strong as in the case at bar. Conn. Sup. Ct. of Errors, Jan. 22, 1886. Bristol Man'fg Co. v. Barnes.

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TIFF.-A witness having a general knowledge of the character, extent, and quality of the plaintiff's work in a livery stable, and being acquainted with the kind of work, may give his opinion or estimate of its value. Opinions as to the value of services, professional or otherwise, run along the same line as opinions as to the value of property, which are always admissible under proper conditions. So the opinions of witnesses acquainted with the business and running of a certain railroad, were held admissible to show the value of the use of the road for a particular period. Sturgis v. Knapp, 33 Vt. 486. (2) Evidence is admissible to show that one is poor, whose claim has been long over due against a responsible party and without demand, if it appears that the claimant was actually in need of money to use; but not so if, though poor, his current needs were supplied, and he had no occasion to use more than he received. Vt. Sup. Ct., Aug. 2, 1886. Stone v. Tupper. Opinion by Rowell, J.

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tiff's building the defendant is not liable for shading it to the extent of that right. The defendant however does not have, or stand at all upon, the rights of these other persons. The buildings were not raised to that height, and the plaintiff would have enjoyed the light which the defendant's structure did intercept, but for that structure which the defendant, as against the plaintiff, had no right to erect. There is no ownership in light itself, as it is diffused, and the jury has not awarded any thing to the plaintiff for what belonged to any one else. This evidence would not have shown that the injury was to others, and not to the plaintiff. U. S. Cir. Ct., S. D. N. Y., Aug. 10, 1886. Fifth Nat. Bank v. New York Elevated R. Co. Opinion by Wheeler, J.

NEGLIGENCE-CONTRIBUTORY NEGLIGENCE—VIOLAsidewalk in violation of an ordinance are injured by a TION OF ORDINANCE.-Where goods placed on the horse running upon the sidewalk, such violation cannot be given in evidence as showing contributory negligence on the part of the owner of the goods in a suit brought by him against the owner of the horse. Penn. Sup. Ct., Feb. 8, 1886. Gannon v. Wilson. Opinion per Curiam.

an

NEGOTIABLE INSTRUMENT

LAW SURETY.

CONSIDERATION-IGNORANCE OF The surrender of old promissory note is a sufficient consideration for a new one executed by a surety, although the surety had been released from payment of the old note by the action of the insolvent principal, where both parties knew the substantial facts, but being ig norant of the law, in good faith supposed the surety was liable for the old note. In Stevens v. Lynch, 12 East, 38, the drawer of a bill of exchange, knowing that time had been given by the holder to the acceptor, but apprehending that he was still liable on the bill in default of the acceptor, three months after it was due said he knew he was liable, and would pay it if the acceptor did not, and it was held that he was bound by the promise. S. C., 2 Camp. 332. The universal rule is ignorantia juris non excusat, the word jus being used as denoting general law-the ordinary law of the land—and not a private right. 1 Benj. Sales, $611. The cases that hold that money paid in ignorance of the law is not recoverable are analogous. Brisbane v. Dacres, 5 Taunt. 144; Clarke v. Dutcher, 9 Cow. 674. Any act that is a detriment to the plaintiff is a sufficient consideration for a promise to pay money. Williamson v. Clements, 1 Taunt. 523. It was a detriment to the plaintiff to give up the old note, as it was good against Brown; and the fact that Brown was insolvent makes no difference, for the note must be taken to have some value, and a small consideration will support a larger promise. Hitchcock v. Caker, 6 A. & E. 438; Creswell, J., in Southall v. Rigg, 11 C. B., 381, 494; Denman, C. J., in Haigh v. Brooks, 10 A. & E. 309; Harrington v. Wells, 12 Vt. 505. In Shortside v. Cheek, 1 A. & E. 57, the giving up of a note against tiou from a promise to pay the amount of it. Parke, a third person was held to be a sufficient considera

FRAUDULENT CONVEYANCE-SECRET TRUST-GRANTOR'S CREDITORS.-A conveyance of land absolute on its face with a secret understanding that on payment of the debt the land shall be reconveyed, constitutes a secret trust that renders the conveyance void against subsequent as well as existing creditors. The conveyance is deemed fraudulent, whether the actual purpose to defraud is found as a fact, or is conclusively presumed from admitted facts. The trust being established the intent to defraud creditors is conclusively presumed. Such a trust is inconsistent with au absolute sale. Smith v. Lowell, 6 N. H. 67; Paul v. Crooker, 8 id. 288; Winkley v. Hill, 9 id. 31; Tifft v. Walker, 10 id. 150; McConihe v. Sawyer, 12 id. 403; Page v. Carpenter, 10 id. 77; Towle v. Hoit, 14 id. 61; Ladd v. Wiggin, 35 id. 421, 426; Coolidge v. Melvin, 42 id. 510; Putnam v. Osgood, 51 id. 192; S. C., 52 id. 148; Ranlett v. Blodgett, 17 id. 298; Coburn v. Pickering, 3 id. 415; Lang v. Stockwell, 55 id. 561; Cutting v. Jack-J., said: "There is no doubt that the giving up of any son, 56 id. 253; Plaisted v. Holmes, 58 id. 293; S. C., id. 619; Sumner v. Dalton, id. 295. N. H. Sup. Ct., March 12, 1886. Stratton v. Putney. Opinion by Smith, J. LIGHT-OBSTRUCTION BY ERECTION OF BUILDINGEVIDENCE. In an action for obstruction of light by an elevated railroad, it is not error to exclude evidence to show, that if the buildings on the opposite side of the street from plaintiff's building were raised as high as the law and ordinances of the city allow, defendant's structure would not intercept any direct rays of the sun toward plaintiff's building. The admissibility of this evidence rests upon the claim that because others have a right to do what would shade the plain

note on which the plaintiff might sue would be a sufficient consideration." In Haigh v. Brooks, 10 A. & E. 309, the consideration for the promise was that plaintiff gave up to the defendant his guaranty on behalf of a third person; and it was contended that the guaranty was void for not expressing a consideration on its face, and that therefore the giving of it up constituted no consideration for the promise. But without deciding whether the guaranty could have been made available or not, the Queen's Bench gave judgment for the plaintiffs on the ground that they had parted with something they might have kept, and the defendant obtained that which he desired by means of his prom

ise; that both being free, and able to judge for themselves, the defendant would not be justified in breaking his promise on afterward discovering that the thing in consideration of which he made the promise did not possess the value he supposed it did. The Exchequer Chamber affirmed that judgment, both on the ground that the guaranty might have been made good by explanatory evidence, and on the ground-Maule, J., doubting-that the actual surrender of the possession of the paper to the defendant was a sufficient consideration without reference to its contents. Vt. Sup. Ct., July 19, 1886. Churchill v. Bradley. Opinion by Rowell, J.

right to clear the space. The right claimed was under the permission of President Hadden, and no one else, so far as appears in the proof. It is certain, even if he had authority to grant the right to enter on plaintiff's premises, he had not done so. He had granted only the right to locate the line along the streets, the location to be fixed by the city engineer; and the defendant was also authorized to cut away any limbs interfering with the erection of the line overhanging the street; but even as to this, he says the defendant was to pay any damage inflicted on owners of property. He adds, his permits only gave the right of way on the street, but in no case were to interfere with private property, as he did not assume to settle controversies of that kind. This being so, defendant shows no shadow of right to enter on the premises of plaintiff, and cut the limbs off her trees near the body of the tree, thus greatly disfiguring the shade trees in the yard of a city home, as shown by the proof. It is true defendant's witnesses insist that the limbs could only be cut in this way. Plaintiff swears the contrary, and we see that the fact is as she swears; for it would have been easy with a self-supporting ladder to have drawn down the overhanging limbs and sawed them off, and thus removed the obstruction. Be this as it may, it is clear the court charged correctly that the defendant had no authority to enter on the premises, and cut away the limbs, the plaintiff having positively forbidden the trespass; and a march was stolen on her, and it done at midnight, as said by the employees, a most unusual time for such work. But it was seen from this issue that the question of license to let the limbs grow over the street was totally irrelevant and immaterial in the case. It is true it is now argued these limbs were a public nuisance, and might have been abated by any one; but the proof shows no such thing. On the contrary, it is shown that they did not interfere at all with the use of the street by the general public, and we can see their shade over the sidewalk would be grateful to parties walking the street in warm weather, and thus to be a public advantage rather than interfere with their use. The limbs only interfered with this private corporation in the prosecution of their business in the precise way most convenient to them, as it is shown they might have had their line so located as not to interfere at all with the trees, but at probably less convenience, or it might be

SALE-ACCEPTANCE-TRIAL OF ENGINE.-Where the contract by which a village agrees to purchase a steam fire-engine and attachments provides for the payment of the first installment of the purchase-money at the date of acceptance of the property, and at the request of the vendee, the vendor sends one of its employees to assist at the trial of the engine, the nature of the machinery making a trial necessary to determine its fitness for the purposes required, held that the acceptance was to be after trial, not when placed upon the cars at the place of manufacture. The language of Justice Campbell in Cole v. Homer, 53 Mich. 438, seems to be applicable to the present case: "When a village corporation desires to supply itself with hydraulic facilities it is a matter of common experience that it cannot be readily computed in advance just what will meet its supposed necessities. It is only by experiment that it can be known whether any proposed system will serve its purposes. Machinery may do all that it is warranted to do, and yet by its workings show that something else is required to supply the corporate needs. Most of the devices introduced here and there are urged, not merely as calculated to do prescribed work, but also on the ground that this work is just what the town requires. It is so usual to reserve a right to a preliminary trial, not to test particular capabilities, but to ascertain general fitness for general purposes, that when such provisions are inserted in contracts courts must see that they are respected." (2) Where a vendee refuses to accept merchandise, which by written contract, he has agreed to purchase, the remedy of the vendor is not assumpsit for the purchase-money, but an action for breach of contract, and refusal to accept on the part of defendant. Mich. Sup. Ct., July 21, 1886. Mansfield Machine-Works v. Low-slightly additional expense. Tenu. Sup. Ct., June 5, ell Common Council. Opinion by Morse, J.

IMPLIED WARRANTY-GOODS FOR PARTICU

LAR PURPOSE-RECOUPMENT OF

DAMAGES.

When specific chattels are purchased for a particular purpose understood by vendee and vendor, and the vendee has no opportunity to inspect them, there is an implied warranty usually that they shall be reasonably fit for that purpose. (2) When there is a warranty, express or implied, in the sale of goods, the vendee need not return, or offer to return, the goods in order to establish his right to recoup the damages he sustains by a breach of such warranty. Vt. Sup. Ct., July 19, 1886. Best v. Flint. Opinion by Walker, J.

TELEGRAPH AND TELEPHONE COMPANY-RIGHT OF WAY-ENTRY ON ADJOINING LAND.-When a municipal corporation grants the right of way through its streets to a telephone company, this does not license an entry upon adjoining lands owned by private individuals, and such entry is unauthorized. The court, among other things, charged the jury that if defend. ant, by its agents, entered upon the inclosure of plaintiff against her will, for the purpose of cutting the trees or limbs, it was a trespass; and this was so, even if it was done for the purpose of clearing a space for their wires outside the inclosure, in case they had the

1886. Memphis Bell Telephone Co. v. Hunt. Opinion by Freeman, J.

VENDOR AND PURCHASER-EXECUTORY CONTRACTACCIDENT TO LAND.-The purchaser of real property under an executory contract is the equitable owner, and must sustain any accidental loss accruing after his purchase, and before the conveyance of the legal litle, he being entitled also to any benefit which may accrue to it during that time. After the execution of the coutract, Carver, the purchaser, died; and in the month just named an unprecedented high flood swept the valley of the Ohio, where this land was situated, his widow being yet in possession of it. Some of the outbuildings and fencing were carried away by the water, and the premises otherwise injured. It is earnestly insisted that it was but an agreement to sell in futuro, and that a portion of the improvements having been destroyed prior to the time when the deed was to be made and the possession given, the appellant is not bound to accept the title, and pay the purchase-money. Viewed in the light of the entire testimony it is questionable whether the improvements which were destroyed by the flood formed such a material part of the value of the premises as to entitle the appellant, even under the rule as adopted by the courts of some of the States-as Maine and New York-and which

houseman for the refusal to deliver upon due demand goods which had been intrusted to him for storage. The answer alleged, that without any negligence of the defendant the goods were stolen from its warehouse. The decision and opinion of a majority of the court is carefully confined to the precise case before it. It recognizes fully the general principles which we have stated above, both as to the nature of the warehouseman's contract and as to the burden of proof, and the utmost scope of the decision is that where there has been a refusal to deliver goods upon demand, and the warehouseman alleges that they have been stolen without his fault, the burden is upon him to prove this fact. This does not reach the case at bar. The plaintiffs do not and could not allege that there had been a refusal to deliver upon demand. On the contrary, they are compelled by the facts to allege, as they do in the second count, that the goods were damaged while in the custody of defendants by their neg

appears to have been that of the civil law, to be relieved from the contract. Indeed the evidence tends strongly to show that the benefit to the land by the alluvial deposit was equal to the damage to the premises in other respects from the flood. But conceding that this is not so, yet should the contract be annulled? It is true that if A. agrees to sell and deliver his horse to B.,upon a future day, and the horse dies in the interval, that the obligation is at an end, but in such a case the title does not pass. In the case now in hand however the equitable title did pass, and if property be destroyed by inevitable accident, or the act of God, the loss should fall upon him who is at the time the owner of it. Its safety is at the risk of the then owner, and the purchaser of real property by executory contract is the equitable owner, and must sustain any accidental loss occurring after his purchase, and before the conveyance of the legal title; he being also entitled to any benefit which may accrue to it during that time. This appears to be the well-ligence. Negligence is an issue raised by the pleadunderstood rule in this State, and even if it were not the best rule, it would be hazardous to alter it. Moreover, being understood, parties to such executory contracts can easily protect themselves, and guard against accidental loss, if they desire to do so. Johnston v. Jones, 12 B. M. 326. Ky. Ct. of App., June 19, 1886. Holt, J.

Martin v. Carver's Adm'r. Opinion by

WAREHOUSEMEN-INJURIES TO GOODS-BURDEN OF PROOF. In an action of contract against a warehouseman to recover damages for injuries to goods intrusted to him, the burden of proof is upon the plaintiff to show that the goods were injured by the negligence of the defendant while they were in his custody. The fundamental rule as to the burden of proof is that whenever the existence of any fact is necessary in order that a party may make out his case or establish a defense, the burden is on such party to show the existence of such fact. In Stephens on Evidence the rule is stated to be that "whoever desires any court to give judgment as to any legal right or liability depend

ings, and is a fact which must exist in order to create
any liability of the defendants. We see no reason to
suppose from the decision or the opinions in Cass v.
Boston & L. R. Co., that if the case before the court
had been like the case at bar, the decision would have
been different from ours. But we think the two cases
really depend upon the same principles; and upon
careful consideration we can see no principle upon
which the decision in that case can be maintained. It
seems to proceed upon one or both of two grounds:
First, that as the plaintiff does not allege negligence
in his declaration, therefore negligence is not an issue;
prima facie case by proof of a refusal to deliver on de-
and second, that as the plaintiff could make out a

mand, any excuse which the defendant set up for the
refusal to deliver was matter in discharge and avoid-
ance which must be proved by him. The opinion rec-
ognizes the question of negligence as one of the issues
in the case; for the case proceeds upon the ground,
that if the defendant shows that he was not negligent,
Sup. Jud. Ct., July 6, 1886.
it is a complete answer to the plaintiff's case. Mass.
Willett v. Rich. Opinion
by Morton, C. J.

CORRESPONDENCE.

BUSINESS."

Editor of the Albany Law Journal:

Where suit is taken by attorney of this city on shares for party plaintiff residing in California with express contract that nothing shall be charged as fees unless successful, issue having been joined, arguments before United States justice had, wherein one of the defendants demurred and demurrer was sustained by the court, in fact plaintiff was beaten at every point, so

ent on the existence or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist." Steph. Ev. (Am. ed.) 175. The test of the question before us then must be the former question, whether the existence of the fact of negligence on the part of the defendants is necessary to create a liability for a breach of their contract. This de. A PROBLEM FOR EXPERTS IN THE " CONTINGENT FEE pends upon the character of the contract, which by implication of law the warehouseman enters into when he receives goods for storage. It is clear that this contract is not such a one as is set out in the first count of the plaintiff's declaration. He does not agree that he will keep them safely, and on demand deliver them in the same order and condition as when received by him. This would make him an insurer of the goods against all damage by accidents, deterioration, or any other cause. But the authorities clearly show that the implied undertaking of the warehouseman is not that he will at all events keep the goods safely, but that he will use ordinary care and diligence in keeping them. Thomas v. Boston & P. R. Corp., 10 Metc. 472; Lamb v. Western R. Corp., 7 Allen, 98; Cass v. Boston & L. R. Co., 14 id. 448; Gay v. Bates, 99 Mass. 263: Roberts v. Gurney, 120 id. 33; Aldrich v. Boston & W. R. Co., 100 id. 31; Lane v. Boston & A. R. Co., 112 id. 455. Unless he fails to use due care in keeping the goods he has not broken his contract, but has done all that he agreed to do. The ruling at the trial was made in deference to the decision in Cass v. Boston & L. R. Co., above cited, and the plaintiffs contend that that case covers and is decisive of the case at bar. That case might be distinguished from the case at bar. It was an action of contract against a ware

far as arguments have been had before the court.

Plaintiff now writes a letter to her attorney requesting him to withdraw the suit, nothing so far having been recovered or likely to be recovered.

Question. Can plaintiff's attorney collect from his client any fees whatever, and

Q. Can plaintiff's attorney still maintain the suit for the purpose of obtaining his fees, as against his client's request in writing to cease firing?

An answer in your usual, prompt and erudite style will help to confound a lawyer who is wiser than what is written, and if a member of the English bar, would be incarcerated for champerty, and at the same time oblige

LAY SUBSCRIBER FROM THE BEGINNING. NEW YORK, Sept. 6, 1886.

The Albany Law Journal.

ALBANY, SEPTEMBER 25, 1886.

CURRENT TOPICS.

crats. If they should name such a man as Esek Cowen it would put a heavy responsibility on the Republicans to refuse him. But if they should nominate a known and pronounced partisan, they ought not to complain if the Republicans put up a candidate of their own party, and follow the precedent in future elections. Assuming that the nomination now should be given of grace to Albany or Troy, and having already expressed our preference for a particular candidate of both parties, and looking forward to the probability that Judge Peckham will be nominated by the Democrats notwithstanding, we suggest that the Republicans put up Isaac Lawson, of Albany, whose name will commend itself to every lawyer in this region, without distinction of party, as that of a person of exceptional learning and experience, both as a lawyer and as a judge- for he has long been a favorite referee and as synonymous with integrity, candor, impartiality, and freedom from political bias

or affiliations-in short, a man as much born to be a judge as Mr. Cowen. We write all this from a sheer sense of duty, and not with the slightest expectation or hope that our words will have any weight with the real judge-making power, the party wire-pullers and boodle-spenders, who care nothing for the good of the State but every thing for the organization of the party, in view of the next time round and their present local issues.

MAN [ANY, if not most of the leading newspapers of this State, advocate the nomination of party candidates for the Court of Appeals. They are generally outspoken in their desire to preserve the Democratic "complexion" of the court, or to change it to Republican. We very much regret to see this, and we should very much regret to see a partisan nominated and elected. There is no such man on the bench now. Except Judge Miller, who before he was a judge that is to say, twentyeight years ago-used to take an active part in politics, none of the judges, to our knowledge, has ever been much engaged in party strifes, even before his election. The judges are all apparently quite indifferent to politics, and the court has never been seriously accused of being influenced by party considerations, except in one instance, and then most unjustly, and the charge fell still-born. Now to attempt to keep or to change the political constitution of the court for avowed party reasons the bestowal of patronage, or to influence decisions would be a scandalous proceeding, and as shortsighted as it would be unprincipled. There should be one branch of the government in which party The 94th North Carolina Reports is a volume of favor has no voice nor place. The precedent has above twelve hundred pages, of cases all decided been set up of uniting on a single candidate with- at one term February, 1886. It would be hard out regard to his politics. That precedent should indeed if some good vacation reading could not be be followed now. But the newspapers say there found in it, and we have been able to cull two are just as good men and lawyers on one side as on choice extracts for our readers. One might be enthe other, and there is no reason why they should titled "the infallibility of judges"- truly they be pitted against one another. There is one reason ought to be infallible when they not only declare at least why there should be but one candidate. but make the law and it was written on a motion The popular election of judges is more or less un- for a resettlement of a case on appeal, which had popular, but if our courts can be chosen by such been settled without notice, upon an alleged agreeagreement as was shown in the cases of Judges ment of counsel. Counsel denied such agreement, Rapallo and Andrews, all the arguments against and "insisted that the judge must have acted unthe system lose their force. We believe in the pol- der a misapprehension of facts, and that the case icy of having the judges directly responsible to the so settled should be quashed, as having been setpeople and not to a patron, but we would gladly tled improvidently or by inadvertence." have them free from any suspicion of indebtedness above said that the record imported verity "until in to party, as well. Therefore we should deprecate some proper way it should be arrested or modified any avowed effort to supplant an outgoing Democrat by the judge who made it," and then proceeded as by a Republican. Again, such a policy would be follows: "This proposition seems to us very singushortsighted. If it prevails now it will be apt to lar, and without precedent. We cannot for a prevail in the future, and as the Troy Times sugmoment think of allowing it to prevail. To do so, gests, when Judge Danforth goes out in 1890 there would be subversive of the integrity and dignity of will be a struggle over his place, and so on to the judicial proceedings, and justly offensive to the juend of time. There are just as good and capable dicial office. The law reposes in the judge imRepublicans as Democrats, it is true, but the out-plicit confidence as to his ability, integrity, care and going judge is a Democrat, and if the Republicans now try to substitute a Republican they must not complain if in 1890 the Democrats try to substitute a Democrat. In this way the court may eventually become all of one party, which would be bad for the look of the thing, if for nothing else. The initiative in this matter now lies with the Demo. VOL. 34-No. 13.

The court

circumspection in his official conduct. It confides
to, and charges him with the conduct of judicial
proceedings, as well as the decision of causes and
motions cognizable before him. What he says and
does in the course of his office must be accepted as
true.
There arises a strong presumption in favor
of the integrity and correctness of his official state-

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