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was such, and his habits and social relations of that character that made conspicuous all the evil that was in him. Cardozo and McCunn had that suaviter in modo that covers, or helps to conceal, a multitude of evils; but Barnard has always displayed a recklessness in word and deed that has made his acts infamous, whether they were good or ill. For the judicial office he was the worst possible man. In many other offices he probably would have passed without question, if not with great honor, but in that position, which pre-eminently requires dignity, impartiality and a careful avoidance of even the appearance of evil, he was entirely out of place. We all blame and condemn Barnard and rightly too-but in truth and justice we ought to blame and condemn, quite as much, the system which makes it possible for such men as he to get on the bench. Few, probably, of the court would have voted to debar him from office, if they could have felt sure that the next tidal wave of New York votes might not again place him on the seat from which they deposed him. The possibility of such a thing is sad to think of, but when it is made apparent that such a result would probably have occurred, it should teach us that the bench should be forever put beyond the reach of the masses.

That "justice of stern integrity" who fines himself for delinquencies, has put in an appearance again, this time in Utica, or, perhaps, more properly speaking, in the Utica Observer. It seems that, forgetting his "magisterial integrity," he got drunk, or, as the Observer poetically puts it, "roamed into the field of Bacchus." He went to his little court the next morning, "called his own name as defendant in a suit in which the people,'" or rather his own aching head, "charged him with an offense against the law, read the statute in such case made and provided," as though there was a statute made and provided about roaming "into the field of Bacchus," pleaded guilty and recommended himself to the mercy of the court; addressed, as a court, himself, as prisoner, fined himself "ten dollars and costs or thirty days imprisonment in the county jail," and then walked over to the poor-master of the town and paid the fine. Such "magisterial integrity" is touching in the newspapers.

A novel phase of the movement toward female office-holding has shown itself in Illinois. Miss Minnie Whaley, of Geneva, Kane county, in that State, has, for several years, been employed in the clerk's office of the circuit court of the county. The efficiency and promptitude with which she dispatched all business committed to her disposal have been remarked and commended by members of the bar and others who have done business in the court. Her lady-like deportment and close attention to her duties have rendered her a general favorite, and it was often suggested that if, happily, the laws of Illinois would only allow

women to hold elective offices, Minnie would be quickly elevated to the clerkship. Her friends and admirers, however, have ingeniously contrived a way out of the dilemma. The laws of the State provide that women may be selected to fill office by appointment from a duly elected officer, and it is now proposed to elect Johnson Whaley, Minnie's father, to the clerkship, under a pledge that he shall make his daughter clerk de facto, and give her all the emoluments of the office. Accordingly, Mr. Whaley is out in a letter to the county paper, promising to do all that is required of him, and to give ample bonds that in case he is elected all the profits of the office shall be paid to his daughter, who shall perform the duties of the office. Miss Minnie has also addressed a letter to the same paper, expressing her appreciation of the kindness of her friends, and stating that, while she could not think of achieving success by any political intrigue, she would gratefully accept the service. We wish all success to this new official enterprise; and we have little doubt that, if the nomination is made as proposed, and under the conditions suggested, Miss Minnie will be soon swaying the sceptre of office to her personal satisfaction and profit, to the gratification of her numerous friends, and to the delight of the bar of Kane county. And we can easily imagine many young lawyers, resident in other counties, laying the venue of their cases in Kane county whenever the rules of practice will allow. Tempora mutantur !

An important and broadly applicable decision has recently been rendered in England, relative to the lien of innkeepers. We refer to the case of Threlfall v. Borwick, 26 L. T. N. S. 794, Q. B., which decides that the right of lien is not confined to such goods as travelers ordinarily carry with them in traveling, but extends even to goods brought to the inn by a guest and received by the innkeeper, although they are the property of a third person, provided the innkeeper does not know they are such. Where a person staying at a hotel for several weeks hired a pianoforte, and put it in a room in the hotel for which he paid a weekly sum, the hotel keeper, not knowing that the pianoforte was not the property of the guest, was held to have a lien on it for an unpaid bill of the guest. The reason for the rule is briefly stated by Meller, J to be this: "In such a case the goods brought by the guest are to be treated for all purposes as if they were his; and, if they turn out ultimately not to be his, the innkeeper would still be liable for their safe keeping, and he should have the corresponding privilege of a lien upon them."

The English cases supporting this doctrine are Turrell v. Trawley, 13 Q. B. 197; Robinson v. Walter, 3 Buls. 269, and Calye's Case, 8 Coke, 32. The doctrine is applicable in this country wherever there is no statute modifying the common-law rule as to liens. In Jones v. Morrill, 42 Barb. 623, it was held, that under the laws of New York of 1860, chapter 446, which

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provide that keepers of boarding-houses shall have the same lien upon the baggage and effects of any boarder for board, to the same extent and in the same manner as innkeepers, "the keeper of a boarding house has a lien for board, upon goods brought upon the premises by a boarder to furnish his room, although they in fact do not belong to the boarder but to a stranger. The legislature intended to give such a lien as the common law gives to innkeepers."

Shooting small boys for trespassing on one's grounds in search of fruit, flowers and such things as children seem to have an uncontrollable passion for - especially if the fruit, etc., does not belong to them seems to be getting alarmingly common, and to amount almost to a custom. Whether the boys do not sufficiently understand the distinction between meum and tuum, and the proprietors of tempting gardens and orchards are determined to teach them this lesson at all hazards, we are not informed; nor are we told whether the old men, who usually do the shooting in such cases, have first tried grass, then sticks, then stones, and so on in arithmetical or geometrical ratio, and by repeated warnings have given the youngsters reasonable expectation of their fate. The latest case of this character, which has come under our observation, occurred in Cincinnati, where one Samuel J. Brown, to whose name is ordinarily prefixed the title "Rev." and who is represented to be one of the oldest and wealthiest citizens of the town, fatally shot a small boy for trespassing upon his grounds. The "reverend" character of this old gentleman, it would seem, ought to have predisposed him against such murderous modes of protecting his grounds. And had we not been told that he was a "weak old man, in his second childhood," we should have supposed that he was enough to have known better." At his preliminary examination he was required to give bail in the sum of $50,000 to answer the charge of murder in the second degree. One of the saddest features of this case is the fact that the grandson of the alleged murderer is the principal and most positive witness.

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The sea of troubles upon which the State of New York has been painfully tossed for three months or more, in consequence of the acts of her wayward judges, gives promise of being quieted at least for a time. After the calm has become assured, it will be wise for the people and the profession to consider how to prevent a recurrence of the judicial disorders with which the body politic has been afflicted. While we do not pretend to offer a panacea for the ills to which our judiciary is liable, yet a change from the elective system to that of appointment may be beneficial. By the judiciary article of the constitution the legislature shall provide for submitting to the people in the year eighteen hundred and seventy-three the question to be voted upon, whether the judges thereafter, as vacancies shall occur, shall be elected by the

people or appointed by the governor by and with the advice and consent of the senate. We have always been opposed to the elective system as applied to the judiciary. And, notwithstanding the obvious defects in the mode of filling judicial offices by appointment, we believe it far preferable to that by election. The judiciary should be above the reach of political and social influences, which it cannot be so long as the political or social preferences of the people are the sole cause of the elevation of a man to the bench. In the system of appointment, the fact that the senate must act upon the recommendation of the governor would be likely to secure for the State a non-partisan, able and upright judiciary.

Much has been said of the humorous phases of the law, little of the pathetic, much of the laughable, little of the tearful. But, while judicial proceedings have opened rich veins of wit in bench, bar and witness, and have elicited many soul-stirring and body-shaking jokes, yet, the most beautiful and precious triumphs of the advocate have been achieved in evoking those delicate and tender emotions which, in coming into the world of sense, assume the forms of sighs and tears. And, while the administration of justice has been sternly, coldly and grandly conducted in many instances, yet there have been times when the lips of him who has swayed the rod of justice have quivered, and the heart of him who received the stroke has been melted, while spectators and counselors have attested their sympathy by tearful eyes and saddened faces. Upon the same day, perhaps at the same hour, two court-scenes have just been enacted in which tears have formed no unimportant or uninteresting part. The one in the metropolis, the other in the most fashionable watering place of America, the one in New York, the other in Saratoga, the one in a humble and unpretentious tribunal to which all sorts of culprits are brought, the other in the grandest and highest tribunal known to the law, and before which only those in high and honorable positions are arraigned, the one in the court of special sessions, the other in the court of impeachment. In the former, a husband was arraigned on a charge of beating his wife, who, with a babe in her arms and three little girls following after, came to testify against him. The prisoner was sentenced by the justice to the penitentiary for one month; but the wife relented, and, while her husband was being hurried away by the officers, she and he and the children burst into tears and pleaded for mercy. The justice recalled the prisoner and said, "In consideration of your wife and children the court suspends judgment upon you." The scene which followed is thus described: "The prisoner took his children in his arms and kissed them lovingly, his wife hung on his arm, and the family went from the room in which many an eye was wet, and many a sympathetic heart had been touched." In the high court of impeachment, while members of that august body

were giving their reasons for voting for the removal and disqualification of Judge Barnard, it is said that the eyes of many of the members were moistened, who regretted their duty to cut off the erring judge, with whom they sympathized, and whom they admired on account of his many noble attributes. And these two incidents of court life, occurring in such widely different spheres, but simultaneously almost, illustrate the pathetic phases of the law, and prove that human nature, even in the latter half of the nineteenth century, is like the curious and beautiful plant which needs to be crushed to give forth its richest and sweetest aroma, and that justice

Is like a sword without a handle, piercing
Both ways alike, and wounding him that wields it
No less than him it is pointed at."

COURT OF APPEALS ABSTRACTS.

BANKRUPTCY.

Action by the assignee of a bankrupt to compel defendant to convey to him certain real estate, sold under judgment of sale, in an action for the foreclosure of a mortgage to which plaintiff was not a party. Held, that at the time of the commencement of the foreclosure suit the equity of redemption was vested, by operation of law, in the plaintiff. As plaintiff was not made a party to the proceedings, the foreclosure was of no effect as to him, and his equity of redemption remained in full force. The purchaser at the mortgage sale or his subsequent grantee becomes mortgagor in possession as to the assignee in bankruptcy and is a necessary party to the action to redeem.

Also, held, that the court erred in modifying the judgment so as to render a personal judgment against the defendant for the value of the property, less the amount due on the mortgage, as upon a conversion of the property by the defendant.

Section 35 of the bankrupt law does not apply to a case like this. Winslow v. Clark. Opinion by Rapallo, J.

CEMETERY.

Appeal from an order requiring the purchaser of the real estate of the corporation known as the Evergreens, a rural cemetery, to complete his purchase. By an act passed April 20, 1866, the supreme court were authorized, upon the petition of the receiver of the corporation of the Evergreens, who had previously been appointed to determine the amount of claims of the creditors of the corporation and the priority thereof, and to provide for the liquidation of the same by a sale of the property of the corporation in the terms prescribed by the act. On the 23d of April, 1870, an act was passed amending the act of 1866, as to the manner and terms of sale. On the 12th of April, 1871, and before the sale, the legislature passed a general act to authorize the sale of unoccupied lands of burial grounds and rural cemetery associations. Section 2 of which act provides, that "no real estate of any rural cemetery or rural cemetery association shall be sold otherwise than in pursuance of the act or acts under which such cemetery or association was incorporated, nor for any other than cemetery purposes, except as provided by section 1 of this act; and all acts and parts of acts inconsistent with the provisions of this act are hereby repealed." The referee proceeded to sell the

premises at public auction, and they were bid off by Sylvester M. Beard, who refused to complete the sale, upon the ground, that the effect of the act of 1871 was to prohibit the sale and repeal the acts of 1866 and 1870,

authorizing the sale. Held, that the objection of the purchaser is not tenable. After the legislature had passed two acts for the specific disposition of the property of this corporation, and the distribution of the proceeds thereof among its creditors, and elaborate proceedings had been instituted and prosecuted to judgment for that purpose, an intention to repeal such acts and abrogate the proceedings founded thereon will not be adopted by implication, nor from general or equivocal words. Also, held, that the prohibition in section 2 applies to the sales authorized by that act, and does not, necessarily, include the sale of the property of this association specifically authorized by the previous acts. In the matter of the Evergreens. Opinion by Church, Ch. J.

EVIDENCE.

Objection of witnesses: objectionable evidence. — In an action to recover damages for personal injuries this question was asked a physician, "can you state as to the probable extent and result of the injury?" Objected to as calling for an opinion as to the result of an injury. Appellant's counsel claimed the question objectionable, as calling for an opinion as to the pos. sible result of the injury. Held, that in an appellate court a party who alleges error holds the affirmative, and must be able to show it affirmatively. A general objection to a question, capable of a construction which makes it competent, will not be regarded, although it is also capable of a construction which may render it incompetent, that the question was capable of the construction that it only calls for an opinion as to the ordinary and natural result of the injury which was competent and the overruling the objection was not therefore error. Briant v. Trimmer. Opinion by Church, Ch. J.

2. In an action for malpractice and neglect on the part of defendant as a physician, in neglecting to treat and improperly treating the eyes of plaintiff, by reason of which he lost the sight of one and that of the other was injured, the father of plaintiff was sworn as a witness for him, and was asked the following question : "Has he (the defendant) ever called upon you for any pay for services in that matter?" Objected to by defendant's counsel; objection overruled, and exception, etc. Answer. "No, sir; he never has presented any bill or asked for any pay." The jury rendered a verdict against the defendant for $2,000. Held, that the question was entirely foreign to the issue, and therefore objectionable. It did not legitimately prove, or tend to prove, either want of care or skill in the treatment of the plaintiff by the defendant. Baird v. Gillett. Opinion by Allen, J.

HUSBAND AND WIFE.

Action in the nature of a creditor's bill to reach certain real estate, which plaintiff claims was conveyed by defendant R. to his wife with intent to defraud his creditors. Held, that when a husband, he being out of debt at the time, in good faith and without fraudulent intent, purchases a parcel of real estate and conveys the same to his wife, her title will be valid as against his subsequent creditors. After the joining of issue in the action the wife died, held, that the plaintiff not having shown any fraud cannot have judgment

for the interest of the husband in the land acquired upon the wife's death; that the husband did not, by his silence, waive his right to the objection; that an execution was the proper remedy for the plaintiff, so far as the interest acquired upon the death of his wife was concerned, as it did not rest until after the answer was put in. Curtis v. Fox et al. Opinion by Grover, J.

INDICTMENT: EVIDENCE.

An indictment for obtaining goods under false pretenses set forth in substance that the plaintiff in error, with intent feloniously to cheat and defraud one Emil Stork, did knowingly, etc., represent to him that a cer*tain instrument in writing for the payment of money, commonly called a bank check, which he then and there delivered to him, purporting to have been drawn by one Pr. Smith, upon the Ocean Bank of the city of New York, dated, etc., for the sum of $140, was a good and genuine check, and that he, plaintiff in error, had money on deposit in said bank, and said check would be paid on presentation. Counsel for prisoner claimed the indictment defective in not alleging that prisoner represented the check worth $140. Held, that it was sufficient. The counsel for the plaintiff in error waived the production of the books of the bank. The bookkeeper of the bank testified that the name of the prisoner did not appear on the books of the bank; held, that the testimony of the book-keeper as to the contents of these books was competent, and this testimony, if true, was sufficient to show that at the time of the transaction there were no funds in the bank for the payment of this check, that it was worthless, and that the plaintiff in error knew it. The counsel for the plaintiff in error requested the court to charge the jury, that the pretense must appear upon the indictment to be such as could not be guarded against by an exercise of common sagacity and prudence, or of ordinary caution, which the court declined to do. Held, that the sufficiency of the indictment was a question of law, to be determined by the court, with which the jury had nothing to do. Smith v. The People. Opinion by Grover, J.

JUDGMENT CREDITOR.

MASTER AND SERVANT.

Liability of railroad for acts of conductors. In an action for an assault and battery brought against defendant, a railroad company, it appeared that defendant's conductor had been instructed to demand of every passenger six cents as fare, and that he was also instructed and authorized to remove from the car any passenger who refused to pay that sum. The six cents fare had been demanded of the plaintiff; he had refused to pay it; he had been told that he would be removed unless he paid it, and he still refused. The conductor then seized him and attempted his removal, and while thus engaged struck the blow more particularly complained of. The court directed a verdict for plaintiff. Held, that the defendant is so far responsible for the act of the conductor, its agent, that if it had not the right to demand the six cents fare, and hence had not the right to remove any passenger from its car for not paying that sum, it was liable for any force used by its agent upon the person of such passenger, though confined strictly within a degree necessary to effect such removal, and used solely for that purpose and with that intent. If it had the right to demand the fare and to remove the passenger refusing to pay, and the agent exceeded through zeal or impetuosity of temper the degree of force necessary and proper to accomplish the purpose, and injury and damage ensue, the company is liable. Also held, it should have been left to the jury to decide whether the act of the conductor was done with malice or ill-feeling or was deemed a necessary use of force to effect the removal. Jackson v. 2d Ave. R. R. Co. Opinion by Folger, J.

PLEADINGS: EVIDENCE.

In an action for goods sold and delivered, which are claimed to have been purchased by an agent of the defendants, it is not necessary to set up in the answer a revocation of the agent's authority and notice of the same to plaintiffs before the sale, such evidence would have been proper under a general denial. Proof that a conversation was had with a deceased person, without proof of the conversation itself, is not obnoxious to the objection that it called for proof of a transaction or communication within section 399 of the Code, unless in a case where the mere fact of a conversation is the material fact to be proved. Heir et al. v. Grant et al. Opinion by Church, Ch. J.

Action of ejectment brought to recover the possession of a strip of land occupied by the defendant in the city of Buffalo, which had been condemned in proceedings under and in pursuance of the act incorporating the Buffalo & Attica Railroad Company defendants. By the act of 1836, chapter 242, under which the Buffalo & Attica Railroad Company derived its powers, and under which proceedings for condemnation of the land in question were instituted, judgment creditors were not required to be made parties thereto; the proceedings were to be taken only against the owners of the land and compensation was to be made only to such owners. Plaintiff was a judgment creditor at time proceedings were instituted, subsequently the premises were sold under the judgment and plaintiff claimed title under the sheriff's deed. Held, that a judgment creditor having a mere statutory lien was in no sense an owner, and the title of the railroad company, when acquired under the acts, became paramount to such lien. That it is clearly within the power of the legisla-selves ture to abolish the lien of all judgments at any time before rights have become vested or estates acquired under them, and, placing real estate on the same footing as personal property, to confine the remedies of the creditor to the property held by the debtor at the time of issuing the execution. Watson v. N. Y. C. R. R. Co. Opinion by Rapallo, J.

MEASURE OF DAMAGES.

RESPONDEAT SUPERIOR; Action for an alleged fraud in the sale of a quantity of cheese. On the 8th of August, 1866, defendants sold to plaintiff over 40,000 pounds, at the price of seventeen cents per pound. Defendants represented the cheese to be of good quality. Defendants had formed an association for the manufacture of cheese, they owned a factory, which they leased to C., who contracted to manufacture the cheese for them at a specified sum per 100 pounds. No right of supervision was reserved. The business was carried on by the defendants, with materials mainly furnished by themand their associates. They appeared to the public, and held themselves out as manufacturers. The cheese in question was sold by them as an article manufactured by themselves. Held, that the defendants assumed the character of principals, both in the manufacture and the sale, and dealt with the plaintiff as such, and they are chargeable with the defects, fraudulently produced by those who appeared to be in their

employ. Also, held, that the court properly rejected the offer of the defendants to prove, in substance, that the cheese was shipped to and sold in the London market, and netted the plaintiff sixteen and a half cents a pound, and that the cheese market in New York is regulated and controlled mainly by the price of cheese in London and Liverpool. The value at another place or at another time would not be material unless it tended to prove the value at that time and place of sale. To some extent this class of evidence is within the discretion of the court. Durst v. Burton et al. Opinion by Church, Ch. J.

TENANTS IN COMMON.

To constitute a partnership there must be a reciprocal agreement of the parties not only to unite their stock, but to share in the risks of profit or loss by the disposition to be made of it. Where several parties agree to purchase personal property in the name of one of them, and to take aliquot shares of the purchase without agreeing to resell jointly, there is no partnership, they are merely tenants in common.

Where one of several tenants in common, unauthorized by his co-tenants, ships the property and obtains an advance upon it, from a party acquainted with the interests of the tenants in the property, by representing himself as authorized to procure the advance, the co-tenants by receiving from him a portion of the advances which he had obtained, on his assurance that he had obtained them on his credit, and in ignorance that their own credit had been used, did not ratify his use of their names. Their subsequent omission to return what they had received, upon learning the facts after the shipping of the cotton, could not make them liable upon the original contract. Baldwin et al. v. Burrows et al. Opinion by Rapallo, J.

USURY.

A loan is not necessarily usurious by reason of its constituting part of an agreement between the parties, when, irrespective of the loan, both parties are desirous of entering into the contract, for their mutual advantage.

The mere fact that as part of the arrangement a loan is made by one to the other at the legal rate of interest, to enable him to perform his part, does not present a case of usury, though the loan would not have been made except as a part of the contract, or even though the contract would not have been made without the loan. Also, held, that the mere fact that a loan of money on interest is the consideration for another contract, is not, in all cases, conclusive evidence of usury. If, by the collateral contract, some benefit is secured to the lender, for which the borrower does not receive an equivalent, and which the lender would not have obtained, except for the loan, and which is intended as an additional compensation for the loan, it is usury. Clark v. Sheehan et al. Opinion by Rapallo, J.

VERDICT.

Action to recover for advances on a lot of cotton. Held, that where a verdict is general, and there are several grounds upon which it might have been based, and if it shall be found that either of them was improperly submitted to the jury, the judgment cannot be sustained, unless it shall also appear that some one of them was so clearly established, by uncontroverted evidence, as to have rendered it the duty of the court to direct a verdict for the plaintiffs. Baldwin v. Burrows. Opinion by Rapallo, J.

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Proceeding instituted by petition under 2 Revised Statutes, 62, 63, to obtain a revocation of the probate of a will. The application was based upon the alleged incapacity of the testator, by reason of his having been under 18 years of age when the will was executed. The surrogate made a decree revoking the probate and the proponents appealed. $399 of Code.

1. Upon the issue as to the testator's age, the surrogate admitted his mother to testify to the time of his birth. Held, that he was not incompetent under section 399 of the Code; the testator's birth not being a personal transaction between him and his mother within the meaning of that section. In the matter of the application to revoke will of George Paige. Opinion by Potter, J., Parker & Learned, JJ., concurring.

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2. Memorandum by third person.-Upon the same issue contestants offered a memorandum found in an account book of one Dr. Marshall, then deceased, as follows: 1847, May 27, Angeline Dingy, Dr., to delivering her of a son $3.00." In credit column on opposite page word "Settled." The book was not kept as a journal but each account was by itself. It was proved that Dr. Marshall, in his life, had been a practicing physician and surgeon; that he had officiated at the birth of the testator, that Angeline Dingy was testator's mother, and that the charge and credit were in Dr. Marshall's handwriting. Held, that it was incompetent without proof of its truth, and that the surrogate was wrong in receiving it, but the same fact being clearly proved by other evidence, its admission was not error. Ib.

error.

3. When the admission of incompetent evidence is not - Where upon all the other evidence in the case a finding in favor of the party objecting to the admission of incompetent evidence would be set aside as against evidence, the admission of such incompetent evidence is not error. Ib.

4. Testator's declarations. Upon the same issue as to the testator's age, his declarations were offered. Held, that they were inadmissible. Ib.

5. Parol evidence to vary writing.-Plaintiff, being owner of a quarry, entered into an agreement in writing with defendant and one F., to rent them the quarry for $450, $200 only having been paid, and F. having died, plaintiff sued defendant as survivor for the balance. The defense was a private agreement between defendant and plaintiff without the knowledge of F., that the rent should be only $200; and that the sum of $450 was inserted in the agreement to enable defendant to obtain that sum from F. Parol evidence to this purport having been admitted upon the offer of defendant, he had a verdict and judgment. Held, by the general term, that although in deeds and like instruments, parol evidence is admissible to show the consideration different from that expressed, it is not admissible to contradict an agreement or covenant to pay a certain sum.

That it having been shown that there was no mistake, the evidence was also inadmissible under the rule that

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