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NEW YORK COURT OF APPEALS ABSTRACT,

BANKRUPTCY-POWER OF COURT TO REQUIRE BOND OF INDEMNITY FROM PETITIONING CREDITOR.- In bankruptcy proceedings, after a provisional warrant had been issued and executed against the estate of the alleged bankrupt, on a motion to recall the same, the court made an order requiring the petitioning creditor to give bond to indemnify the alleged bankrupt for any damages he might sustain by the seizure of his goods, etc., under said warrant, "if on the final hearing of said creditor's petition to have the defendant adjudicated a bankrupt,the said defendant shall prove that he is not bankrupt and the proceedings against him by the said petitioning creditors shall be dismissed," etc. Upon an agreed statement of facts reciting a trial and judgment in a State court, wherein it was determined that the petitioners in the bankruptcy proceedings were not in fact creditors of the alleged bankrupt,the cause was'submitted to the court who ordered judgment for the defendant. Held, that the bankruptcy court had the power to require said bond, and defendants were liable for a breach thereof. When in the exercise of their discretion, courts may grant or withhold a favor asked for, they possess inherent power independent of common law or any statute to impose any reasonable terms or conditions upon which the favor is to be held. June 15, 1886. Sonneborn v. Libbey. Opinion by Danforth, J.

COVENANT — TO REPAIR STREETS DAMAGES.- (1) Defendant covenanted with the city "to pave the streets in and about the rails of its track in a permanent manner, and to keep the same in repair to the satisfaction of the street commissioner." Held, that the covenant extended to the entire space between the tracks. (2) Where a covenantee has made repairs which the covenantor was bound, but has neglected to make, and has proceeded in the usual way, and no fraud is shown, nor any facts to impeach the reasonableness of the account, the sum actually expended in the work is prima facie the sum which he is entitled to recover. June 22, 1886. Mayor, etc., v. Second Avenue R. Co. Opinion by Andrews, J.

CRIMINAL LAW DEPOSIT OF MONEY IN LIEU OF BAIL.-(1) Section 286 of the Code of Criminal Procedure, providing that a defendant, instead of giving bail, may deposit with the county treasurer the sum mentioned in the order admitting him to bail, contemplates that the deposit is to be made by the de

fendant himself and by no one else. (2) When the deposit is made by any party other than the defendant, it will be deemed to have been made for the defendant, and if conviction follows and a fine is imposed the court may, under section 598, order the fine to be paid out of the money so deposited, and the balance, if any, paid to the defendant. June 22, 1886. People v. Laidlow. Opinion by Earl, J.

EVIDENCE-WRITTEN CONTRACT-MODIFICATION BY PAROL-NEW AGREEMENT.-A written contract may be modified by a subsequent new and distinct oral agreement upon a new consideration, but in this case the oral evidence of the bargain, and of the explanation accompanying the execution of the written contract, instead of showing a modification of the writing, tends to show simply that the writing never expressed the real agreement of the parties, and plaintiff allowed it to etand unaltered, on the assurance of Martin that a delivery of a certain less number of brick per month would be accepted in lieu of the number called for by its terms. Held, that the court erred in refusing to charge that what took place between the parties previous to or at the time of the executiou of the written contract was inadmissible to vary or modify it, and that a new agreement must be shown.

The court also refused to charge that if the evidence on which the alleged modification of the written contract depends is only of what took place contemporaneous with the execution of the written contract, then no modification was shown. Held error. June 1, 1886. Corse v. Peck. Opinion by Andrews, J. FORMER JUDGMENT — CREDITOR'S ACTION BY WIFE AGAINST HUSBAND-SUBSEQUENT DIVORCE-ESTOPPEL -LIEN. -(1) Plaintiff recovered five] judgments in County Court against John Carpenter, her husband, for installments of income due her on articles of separation, in which she had agreed to support herself, and sign all deeds; he to pay her a stated sum each month. Upon the trial of the several actions the validity of the agreement of separation, and the status of plaintiff as a creditor of her husband, was litigated between the parties thereto, and was in each action decided in her favor. In this action to set aside as fraudulent certain conveyances of real estate executed by him to defendants, held, that the questions were res adjudicata, and defendants were precluded from raising them in this action. The defendants acquired title to the real estate in question from John Carpenter, and necessarily took it at the risk of any incapacity in him to convey a good title, and so far as that was affected by the rights of existing creditors, his fraudulent grantees were equally bound by such legal adjudications as might be made against him in respect thereto as John Carpenter himself. Candee v. Lord, 2 N.Y.269; Rogers v. Rogers,3 Paige,379; Shufelt v. Shufelt, 9 id. 137; French v. Shotwell, 6 Johns. Ch. 234; Raymond v. Richmond, 78 N. Y. 354; Bigelow Estop. 102; Voorhees v. Seymour, 26 Barb. 585. (2) The plaintiff had, subsequent to the separation, procured a decree for an absolute divorce from her husband, with no provision for her support. Held, that this did not affect her pecuniary claims on him, if secured by legal obligations, either for dower or to an allowance by way of alimony. It was claimed by the defendants that marriage was the gravamen of the separation agreement, and that its annulment by the decree necessarily subverted and destroyed the obligations of the contract. It is quite obvious that this proposition, if generally correct, would not affect the validity of judgments for lawful debts already obsuch decree was obtained. But we are also of the tained, and standing unpaid and unreversed when opinion that there is nothing in the terms or character of the agreement referred to which authorized impunity the obligations of his marriage contract, John Carpenter to commit adultery, or to violate with without incurring the penalty which the law imposes upon an offending party for such misconduct. There is no express or implied condition in the contract that the plaintiff should continue to remain the wife of John Carpenter, but the obligation to pay interest was to continue unconditionally during her natural life. The contract looked toward a separation, and not to a union of the parties; and a lawful separation, if produced without the misconduct of the wife, could not affect her pecuniary claims, if secured by legal obligations. The right of the wife to dower in the lands of her husband, or to an allowance by way of alimony out of his estate, could not be impaired by a divorce granted for his misconduct; and the existence of an agreement whereby her future support by him was secured by a lawful obligation would afford a good reason why in equity her claims upon his property should not be provided for in the decree in divorce. The absence of such a provision seems to confirm, rather than destroy the provisions of the contract, and looks to its expected continuance as a just and proper provision for the wife. Blaker v. Cooper, 7 Serg. & R. 500. (3) It is further claimed that the plaintiff is estopped from questioning the validity of the

several conveyances from John Carpenter to the other defendants, because she joined with him in their ex. ecution. It was found by the trial court that these conveyances were executed by John Carpenter, and received by the defendants, for the purpose of defrauding the plaintiff, and without knowledge on her part of such fraudulent purpose. The claim made, that Carpenter could, under his contract with his wife, require her to execute deeds releasing her dower in all his lands, under the penalty of forfeiting all of her rights thereunder in case of refusal, and yet roquire her to execute such conveyances as should forever disable Carpenter from performing the obliga tions to her, which formed the only consideration for her agreement, is too absurd for serious consideration. The proposition is elementary that fraud vitiates all contracts, and a construction of an agreement which would hold an innocent party to his contract, and still authorize the other to defeat his obligation by his own fraud, is unsupported by any rule with which we are familiar. The only ground for such a claim would be that of estoppel, and that is untenable when all of the parties to the act except the plaintiff were cognizant of all of the facts relating to the transaction, and were not deceived or misled by the plaintiff's action. They were all active participants in the fraud practiced upon the plaintiff, and are not justified in asserting any rights secured thereunder as against the defrauded party. In our view, the only serious question in the case relates to the additional relief granted by the court below in declaring a lien upon the land in question for the several installments due, but not in judgment, when the action was commenced. We are of the opinion that the court, having acquired jurisdiction to decree such conveyances fraudulent and void as to judgments previously recovered, was authorized to grant such further relief, within the scope and meaning of the issues made, as the parties might be equitably entitled to in connection with the transaction under investigation. (4) The court below declared the judgment to be a lien upon the land in question for the several installments due, but not in judgment when the action was commenced. Held error, that the court was limited to the installments in judgment, and that this judgment should be corrected to that extent. This principle has been applied in many cases in awarding judgment for pecuniary damages, even when the party had an adequate remedy at law, if the damages were connected with a transaction over which the courts had jurisdiction for any purpose, although for the purpose of collecting damages merely they would not have had jurisdiction. Bradley v. Bosley, 1 Barb. Ch. 152; Clarke v. White, 12 Pet. 188; Franklin Ins. Co. v. McCrea, 4 Greene (Iowa), 229; Brooks v. Stolley, 3 McLean, 523. The court below had unquestionable jurisdiction to award relief against the conveyances in question as to the judgments recovered; and although not entitled to award such relief as to claims not in judgment, it still had power to grant any other relief to which the party was legally entitled, although it might result in consequences similar to those afforded by a decree declaring a lien. The legal effect of the decree setting aside the conveyances was to vacate and annul the title conveyed by John Carpenter to the several grantees named in his deeds, so far as it stood in the way of the collection of the plaintiff's judgment, and as against the parties to this action, of any other claim arising out of the same transaction which should be thereafter lawfully put in judgment. The plaintiff's complaint alleged that several installments aside from those in judgment were then due and unpaid upon the separation agreement, and asked that the same be declared a lien upon the said real estate, and that the property be sold, and such installments be

paid from the proceeds of such sale. The fair import of this demand was to entitle the plaintiff to so much of the relief demanded as was within the power of the court to grant; and if a rendition of a money judgment for such installments was necessary to confer the relief sought, the court had undoubted authority, under the prayer for relief, to order such a judgment. The proof of the separation agreement, and the recovery of previous judgments thereon, constituted conclusive evidence of the rights of the plaintiff, as a creditor of John Carpenter, under such agreement, for the amount appearing to be due and unpaid thereon, authorized the court to render judgment against John Carpenter, for such amounts as were not already in judgment. The rule which precludes a court of equity from entertaining jurisdiction of an action to set aside a fraudulent conveyance at the suit of a simple contract creditor would seem to render the judgment appealed from erroneous, so far as it declares such a debt a lien upon the property in question, yet the rendition of a pecuniary judgment in this action is authorized, and would seem, so far as the parties to this action were concerned, to place the plaintiff in a position to enforce it hereafter against such real estate by appropriate proceedings therefor. These views lead to a modification of the judgment by striking out so much thereof as declared it a lien upon the real estate for the installments not previously in judgment, and to an affirmance of its other provisions. June 15, 1886. Carpenter v. Osborne. Opinion by Ruger, C. J.

MORTGAGE -FORECLOSURE PART OF PREMISES IN ANOTHER STATE-ENFORCEMENT.-A decree of foreclosure is valid although part of the premises covered by it are in a sister State; and although the judgment cannot be enforced as to such property, yet the court may require the mortgagor to execute a conveyance of the same to the purchaser under the judgment, in order that the whole security may be made effective. Miller v. Dows, 94 U. S. 450. June 15, 1886. Union Trust Co. v. Rochester R. Co. Opinion by Danforth, J.

PURCHASE BY PLAINTIFF - AGREEMENT TO RECONVEY.-An arrangement was made by the attor ney of both parties in an endeavor to perfect a title by letter to the effect that a foreclosure sale was to take place in due and lawful form, and that if the plaintiff, or any one for her, became purchaser, she should go into possession as such, but that at any time within one year after taking title" she should reconvey to defendant upon being paid the mortgage debt, interest, etc. Held, that plaintiff was entitled to a deed from the referee, and is not liable to account as mortgagee in possession, since she is in as purchaser. June 8, 1886. Belter v. Lyon. Opinion per Curiam.

NEGLIGENCE-DAMAGE BY FIRE — DEFECTIVE FIRE SCREEN ON LOCOMOTIVE.-Where there is a conflict of evidence as to whether the fire producing the damages complained of was caused by an engine upon defendant's road which was fully protected in respect to firescreen, or by another engine passing at about the same time with a defective fire-screen, it becomes a question of fact for the jury to determine which engine caused the fire. June 8, 1886. Sheeley v. N. Y. C. & H. R. R. Co. Opinion per Curiam.

CONTRIBUTORY NEGLIGENCE-CROSSING RAILROAD WHILE IN PROCESS OF REPAIR.-Plaintiff, who was deaf, undertook to drive across the railroad where a portion of the track was in process of construction. and although the foreman at first requested him to wait. On his proceeding he directed a workman to lead the horse over, but after passing over, the horse starting, the man let loose, and the horse running against a

telegraph pole was injured. Held, that the questions as to whether the railroad exercised proper care and skill in the performance of the work, and as to preventing obstructions to passers by, and as to whether defendant was chargeable with contributory negligence, were for the jury, as was also the cause of the injury. Held, also, that plaintiff had reason to believe, from the fact of defendant's workman in leading the horse over, that the crossing was safe. June 8, 1886. Rembe v. New York, O. & W. R. Co. Opinion per Curiam.

CORRESPONDENCE.

THE CITY Court of NEW YORK. Editor of the Albany Law Journal:

Will you kindly inform me through your columns what the "New York City Court" is, and where there is any authority in law for the organization of such a court, and oblige a large number of country lawyers? SUBSCRIBER.

CUBA, Allegany Co., N. Y., Aug. 18, 1886. [The City Court is the successor of the Marine Court, and being a local court of limited jurisdiction, was established by legislative enactment.-ED.]

LAPSED DEVISE.

Editor of the Albany Law Journal:

A testator dies several years after making his will, wherein he gives and devises to a certain person one of his farms. But between the date of the will and

his death the testator sells the farm by contract for deed to a third person, who at once takes possession, and is in possession at the time of the testator's death, without any forfeiture of the contract, and is ready and willing to perform it according to its terms.

Question: Does the devise fail by act of testator in his life-time? or is the conditional title in devisee,

placing him in the situation of party of the first part

in contract for deed?

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THE COURT OF APPEALS JUDGESHIP. Editor of the Albany Law Journal:

A printed circular, entitled "Court of Appeals Judgeship," and signed, "A Member of the Bar," has been forwarded to me here, and I presume has been circulated freely among lawyers of New York. It is designed to show the gross injustice hitherto done to the First and Second Judicial Departments in the election of judges of the Court of Appeals. The writer drops freely into figures, and shows clearly (what everybody knows in a general way) how greatly these two departments, comprising the two great cities of New York and Brooklyn, exceed any other department in population, wealth, amount of litigation, and amount paid in taxes. Hence, says the writer, great injustice is done these populous cities, in that they have but one of the citizens of the First or Second Departments on the Court of Appeals bench; or to use the language of the writer, "These figures * ** *

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are an exhibit of taxation without representation unparalleled in the history of the New World."

If the Court of Appeals is designed, or ought to be a representative body, the complaint of the irate New York or Brooklyn "member of the bar" is well founded. Indeed a still worse case might be stated. The farmers, in the aggregate pay vastly more taxes, and are vastly more numerous than the lawyers; but not a farmer has ever been elected to the Court of Appeals. Just so of the merchants: 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 is a representative body this is all wrong. One lawyer out of the seven would be a liberal allowance to the profession; while the other six should be taken from farmers, merchants, mechanics, bankers and laborers; and the ministers and doctors might occasionally demand a representative.

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The fallacy of the irate Metropolitan is in assuming that the court is, or ought to be, representative in the ordinary sense. The court should be composed of good men, learned in the law, of unimpeachable integrity, and of fair and judicial mind. If this is accomplished, what does the litigant care where the judge resides? Decide my case justly, and according to law," is all that he ought to demand, and is all that the public interest demands. It is notorious that most of our greatest judges have not lived in the First or Second Departments. Deuio, Comstock, the Seldens, Grover, Hunt, Johnson, Church and Folger are a few of the distinguished names that occur to me at the moment of writing. They all lived out of the metropolitan district. Were they any the less acceptable as judges, even to New York city litigants and lawyers, than if their home had been in New York? The writer of the circular would imply that lawyers living in Buffalo, Syracuse, Rochester, Utica, Albany and Troy and the other towns and cities of the State outside of New York and Brooklyn, were mainly occupied with agricultural law, and know little or nothing of litigation arising from "trade, commerce and wealth." If the writer of the circular knew no more of the law on these subjects than he does of the character of litigation in the interior of the State, we should all pray that New York city might not be "represented" on the bench by "the likes of him."

There are several reasons for the comparatively small number of judges that have been selected for the Court of Appeals from New York and Brooklyn. The principal one is that there are but few, if any, of the best lawyers of the metropolis who would take the position. The salary is entirely inadequate for a firstclass New York or Brooklyn lawyer. Judge Tracey, whom the writer of the circular mentions, would not take a nomination for the office at the expiration of the term to which he was appointed. What leading New York lawyer would to-day accept the nomination from either party if tendered him? On the contrary, the professional income of the best country (and by this I mean to include the entire State out of New York and Brooklyn) lawyer is not ordinarily so great that he would make a very great pecuniary sacrifice by exchanging it for the salary of a Court of Appeals judge.

Again, law business in New York city is running more and more into specialties. But few lawyers there have that variety of business which falls to the lot of a lawyer in active practice in the country. Other things being equal, the country lawyer is better equipped to meet and consider the vast variety of questions that come before the Court of Appeals than is his metropolitan brother, who has confined himself mainly to some special department of the law.

Looking at the subject dispassionately, it seems to

me that what should be sought for in the judge to be elected this fall (provided it can be found combined with other necessary qualities) is judicial experience. When the court was organized in 1870, three of the seven-Allen, Grover and Peckham-had long occupied the Supreme Court beuch, with honor to themselves and to the advantage of the State. Now Judge Miller is the only Judge of the Court of Appeals who ever sat as judge at Circuit or at General Term. Every other Court of Appeals judge has been promoted directly from the bar to the bench of the highest appellate court. It seems to me not only desiraple, but highly important, that the Court of Appeals should not be entirely without men who know by experience the trials and difficulties that beset a judge at Circuit; in other words, that Judge Miller's successor should be a man who has been a justice of the Supreme Court, or of one of the local courts of equal jurisdiction. Judge Peckham has been mentioned as the Democratic candidate, and he would in my opinion "fill the bill" in all respects. So would any one of the several justices of the Supreme Court in the First and Second Departments, or of the New York Superior Court, the Court of Common Pleas of New York or the City Court of Brooklyn that might be named. But would they exchange their present liberal salaries for the greater honor and smaller pay of a seat in the court of last resort? The Republicans, too, have plenty of Supreme Court justices and ex-justices from whom to select.

The Fourth District has never had a Court of Appeals judge; the Eighth District has none now. There are good and able men and Republicans of judicial experience in both these districts. If the Republicans should nominate one of them, and the Democrats Judge Peckham of the Third District (which will be left unrepresented when Judge Miller retires), or some experienced judge from the First or Second District, the Court of Appeals will be strengthened, or at least kept good, whichever party shall succeed, and will not be entirely deprived of that element of prior experience as a trial judge, which was considered as so important when the court was organized.

ANOTHER MEMBER OF THE BAR."

BY THE SEASIDE, Aug. 14, 1886.

BE SURE YOU'RE RIGHT.

Editor of the Albany Law Journal.

In answer to your correspondent (ante 160) as to "bungling legislation," the fact is that the section of the Code referred to in his communication was not amended in 1886. Chapter 672, section 5, of said act is as follows:

"§ 5. Section one hundred and eleven of the Code of Civil Procedure shall read as follows: "A new section enacted and given the number of this repealed section." Yours,

ALBANY, N. Y., Aug. 24, 1886.

J. T. C.

NEW BOOKS AND NEW EDITIONS.

WHITTAKER'S SMITH ON NEGLIGENCE. This is the first American from the second English edition, and has been extensively annotated by the American editor, who states that he has added references to three thousand cases. The book is pub

lished by the F. H. Thomas Law Book Company of St. Louis, and is handsomely printed. The plan of the work is not a favorite of ours. We much prefer original works, embodying the decisions in the text to textbooks written by foreign authors and annotated by our own. There is always more or less superfluous or inconsistent matter in an English text book, and even when it has been harmonized and made strictly applicable, it suffers an inconvenience from the extensive matter necessarily placed in foot notes. The original of this work is written on a peculiar plan of division of subject-matter. The author treats of neglect of duties requiring ordinary care; of those requiring skill, or more than ordinary care; and of those requiring less than ordinary care. This is a novel treatment, and we are by no means certain that we are reconciled to it. It seems to us to require a great deal of unneces sary discrimination to tell in which class to put a given case. There is no apparent fault in Mr. Whittaker's editorial work. He refers to all the important cases, even the most recent, and states them succinctly. We wish however he would not use "R. R." for "Rail. road," which is, or ought to be, a single word. This is only less vexing than "R. W." for "Railway" or "Ry.," which many use. It is pretty certain that no recent important case has escaped Mr. Whittaker, and herein is perhaps the greatest merit of the present publication. Armed with this and the admirable works of Thompson and Beach, the practitioner is perfectly equipped.

ADAMS' JUDICIAL GLOSSARY.

A Judicial Glossary: Being an exhaustive compilation of the most celebrated maxims, aphorisms, doctrines, precepts, technical phrases and terms employed in the Roman, civil, feudal, canon and common law, expressed in foreign languages and quoted in the standard elementary works and reports of the British and American courts: and also an exhaustive compilation of adages, axioms, proverbs, mottoes, etc. Alphabetically arranged and carefully translated into English, with explanatory notes and citations, for the use of the legal profession and the intelligent laity. By Henry C. Adams. vol. 1: A to 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 venture of its kind ever attempted by one man, almost single-handed and alone, on either side of the Atlantic," and is entitled to "demand that hypercritical criticism shall have no place." A careful reading of the title page will show that this work is quite distinct from the ordinary law dictionaries of Jacobs, Bouvier and Abbott, and it is also a huge magazine of maxims-five thousand, the author states. Our own scholarship is neither exact nor extensive enough to enable us to judge of the author's work very critically, but the enormous learning, research and labor are apparent to any one. We can easily believe the author's statement that he has been at work on it for twenty years. Another thing we can vouch for, that it is au extremely interesting and enlightening book to open at any page and read, as it is illustrated by copious extracts from the classic poets, comedians, orators, philosophers and rhetoricians. The work must be indispensable to every lawyer who makes any claim to scholarship and to other professional men. We heartily wish the author success in his great undertaking. It may be pardoned to us perhaps to call attention to the peculiar and elegant typography of the volume, for it is evident to any printer or publisher, and is of a novel and striking arrangement, very grateful to the eye and convenient for quick reference.

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

The Albany Law Journal. judicial character and temperament, the great learn

ALBANY, SEPTEMBER 4, 1886.

CURRENT TOPICS.

Tis growing interesting. A correspondent of HE canvass for the Court of Appeals judgeship

this journal, a very eminent lawyer, last week thoroughly exploded the pretensions of the first and second districts to the office. These localities are adequately "represented "at present. There is also some force in our correspondent's idea that the new judge should have had judicial experience, but this argument would not avail very much in Judge Peckham's favor, whose experience on the bench has been very short. Then there are not many judges who could sit out the term. Judge Ingalls, of Troy, would be very acceptable, but he would not take the place and he could not complete the term. It is important to find a man who can sit out the term, and it would be desirable to find one on whom both parties would unite, and thus adhere to the excellent precedents already set in several instances in this State. The talk about "keeping the court democratic" or "making it republican" is very unwise and thoroughly detestable. It is encouraging to learn that Chief Judge Ruger and Judge Andrews have been using their influence toward the adoption of a single candidate, although it is difficult to see why Governor Hill should have it in his power or presume to dictate the nomination. It is bad enough for him to defeat the intentions of the law-makers without also declaring who shall or shall not be the law-expounders. It is still more difficult to see why the Governor should insist on Mr. Attorney-General O'Brien as the candidate of his party. It is safe to say that Mr. O'Brien could not be elected. It is also safe to say that the parties would not unite on Judge Peckham, who has been a hot partisan, and that the republicans would make the running very lively for him should the Governor "consent" to his nomination. Judge Peckham is our townsman in whose character, abilities and success we take pride, but he has not by nature the temperament and characteristics which best fit a man for the Court of Appeals bench, and on the other hand he has the force, vigor and incisive common sense which in time would make a capital circuit judge of him. In a short time he would find the constant sitting and writing and delving of the other place insufferably tedious, just as his father did. On the other hand, if Mr. Cowen, who is said to be the person suggested by the chief judge and Judge Andrews, would accept the office and we are by no means certain that be could afford to — and should be named by the democrats, it is quite possible that the republicans would adopt him. The Troy Times intimates as much. At all events Mr. Cowen would make an ideal judge. He is one of the most eminent lawyers of the State, and would worthily carry down in our VOL. 34-No. 10.

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ing, the patience, the cool way of considering all things, the candor, the entire freedom from bias, suitability of age, moderation in politics, the excellent literary style in short, a man born to be a judge. Mr. Cowen has not the pecu

liar characteristics which make a successful cir

cuit judge, and which Judge Peckham has. So we hope that Judge Peckham will stay where he is, and that Mr. Cowen will enter upon the slavery of the Court of Appeals bench. There are other fit men in both parties, no doubt. Very excellent nominations might be made from the Supreme Court bench, but we should like to see both parties unite on a candidate, and there seems no probability of their doing it except in the case of Mr. Cowen.

We publish this week the first half of the report of the committee of the American Bar Association on delay and uncertainty in judicial administration. It is a very important and interesting document. It is signed by Messrs. Field, Dillon, Thompson and Wright. Mr. Cortlandt Parker made a minority report. Last week we announced the adoption of the committee's recommendation on codification. The other important topics are the jury system and the "contingent fee business." We do not entirely agree with the committee about the former, but do most heartily as to the latter. Judge Wright made an addendum to the report for himself on these two points. He would preserve the jury system, exercising more care in the selection of jurors, and giving the judge the right to comment and give his opinion on the evidence, but having the instructions always in writing. In conclusion he said: "As to champertous engagements,' I have to say that they should be discountenanced and prevented by all lawful

means.

The temptation to dishonest practices and the use of unprofessional shifts and devices' are strong enough where the retainer and services are upon a contingency; and to allow the attorney, under any circumstances, to advance and become liable for costs and expenses, tends to pollute the whole fountain, and he becomes the interested practitioner and not the true and noble advocate. We have enough of contingent retainers - attorneys standing in the way of clients agreeing with their adversaries, because of their struggle to make illegitimate gain. If the attorney will make a champertous agreement, since, of course, the client makes the retainer with full knowledge, I would have it, when disclosed, operate to dismiss and forever bar plaintiff's cause of action, or the claim if preferred by defendant. A large per cent of our litigation is set on foot and continued by reason of those iniquitous champertous arrangements, to the detriment of the public interest and the reproach of the bar and of our judicial system. Discountenance and prevent these in all ways possible." There is another recommendation we would suggest, namely, make the speculating attorney liable for costs. As the law now stands, the attorney is a substantial party with

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