provision is practically the same as section 25 of the judiciary article which went into effect in 1870. That provides: "Surrogates, justices of the peace and local judicial officers provided for in section 16 in office when this article shall take effect shall hold their respective offices until the expiration of their term." These sections are inserted into the several constitutions in which they appear out of abundant caution in order to avoid what might be claimed, that the incumbents of the office named at the time of the adoption of the new Constitution were thereby deprived of their offices. To guard against such claim, section 1 of article VI of the new Constitution provides for the continuance in office of the justices of the Supreme Court and of the justices transferred thereto by section 5. Section 7 provides for the continuance in office of the judges of the Court of Appeals; section 14, of the county judges; section 15, of the surrogates. For the same reason justices of the peace are continued in office, and, inasmuch as there was no provision for the continuance of inferior local courts previously established, because they are legislative, and not constitutional, courts, and to indicate that there was no purpose to interfere with those who were then incumbents of local judicial offices, it was provided that they should hold their offices until the expiration of their respective terms. With respect to the judges of the Court of Appeals, the justices of the Supreme Court, county judges and surrogates, it is, however, to be observed that the Constitution fixes their terms of office. Both the old and the new Constitutions prescribe the duration of their official term, while, with respect to the local judicial officers, there is no constitutional term of office but one fixed by the Legislature. The language of the Constitution is not that the officers named shall hold their office for the respective terms for which they are elected or appointed, but merely until the expiration of their respective terms. These terms are of legislative creation, and the power to fix such term is in no manner taken away by the language employed. All that was sought to be accomplished was, that the existing legislative courts should not be without in stitutional office, as an expiration of the term.. With respect to a legislative office, the term must be deemed to have expired whenever the Legislature so declares. This interpretation is entirely consistent with the scope of the judiciary article, and the underlying thought which it contains, that the legislative courts should remain subject to the legislative power, and not advance into the rank of constitutional courts. For these and other reasons it is concluded: First. That the Legislature has the power to regulate the terms of the present police justices of the city of New York, to the extent of removing them from office if necessary. Second. In any event it has the power to abolish the offices; and, Third. To reduce or altogether take away the compensation given to these officers by the Consolidation Act. cumbents by reason of the adoption of a new Con-enable the court to render a right decision. In the An agreement by property owners and business men, in the immediate neighborhood of the post-office, to "But, while gravely meditating the case, the pay the owners of the building in which it is located stitution. There certainly is no reason why the Legislature should be prevented from fixing the terms of those who should happen to be in office upon the taking effect of the new judiciary article, and leave it entirely unrestricted with respect to their successors. By the phrase, "the expiration of their respective terms," it was udoubtedly intended to refer to all methods whereby the expiration of an official term could be brought about. Death, resignation, removal for misconduct, or other sufficient cause, operate, even in the case of a con performance of this function great scope is afforded for the display of learning and ability. The learning, however, should not be abused by an ostentatious prodigality of citation, but be seen only in the production of authorities pertinent and conclusive of the point. Bulk is not always weight; and the attraction of a brief may be in an inverse ratio to its length. And the ability exhibited should be manifest in an orderly marshaling of essential facts in a firm grasp of the principles involved, in an accurate apprehension of the conflicting analogies, and in an argument clear, compact and cogent. Forensic eloquence is still a power, though not of the kind formerly in vogue-florid, copious and declamatory; but simple, subdued and severely logical pare reason aglow with animation. "The first and indispensable requisite is to engage the attention of the court; and by no means is this condition so effectually fulfilled as by luminous statement, elegance of diction, methodical arrangement of topics and earnestness of address. I say elegance of diction because, after all, there is a fascination and an effect in mere felicity of phrase; and I inculcate earnestness of manner, because the Horatian precept Si vis me flere is as imperative as ever. "Having so presented his client's case, the advocate's office is at an end, and the judge occupies the scene with his imposing presence. The duty of the bench to the bar is primarily a patient attention to the arguments. • Patience and gravity of hearing,' says Bacon, 'is an essential part of justice, and an overspeaking judge is no well-tuned cymbal.' However able the judge, and however inexperienced the lawyer, it stands to reason that he who has made a special study of the case must know it better than he to whom it is just presented, and that so something may be learned even from the speech of the least expert advocate. Hence, another maxim of the same great authority, namely: Let not the judge meet the cause half way, nor give occasion to the party to say his counsel or proofs were not heard.' Again, the advocate is entitled to the most respectful treatment by the court. The amenities of the gentleman are not incompatible with the dignity of the judge. And this courtesy of the bench to the bar should not be proportioned to the eminence of the advocate; on the contrary, the younger, the weaker and the obscurer the counsel, the clearer his title to deferential encouragement from the court. It may be more perilous to provoke a duel of wit and disputation with a Choate than with a tyro; but for that very reason the judge should be prompter to challenge Mr. Choate than the tyro. How crushing to modest merit a sneer or a frown from the court, and how cruel, too! How helpful a word of praise or a look of approval! "The briefs handed in, the judge should study them thoroughly and impartially, so that when he delivers his decision, the defeated counsel will say that, at all events, the court has tried to do justice. It is not for mortals never to err, and everything will be forgiven to the judge who has sought diligently and conscientiously to discover the right. Whether he go wrong from corruption or indolence, the miscarriage of justice is the same, and equally oppressive to the suitor. judge need not prolong his deliberation to an Eldonian period of gestation. Curia advisari vult should not be the synonym of interminable procrastination. In magna charta, the sale of justice, the denial of justice and the delay of justice appear in the same category of unpardonable offenses. Indeed, gentlemen, the judicial office is not of dignity only, but of awful responsibility. The dispensing justice, the righting of wrong, the protection of innocence, the punishment of guilt these are the functions; and what prudence, what labor, what vigilance, what learning, what courage, what probity, are indispensable to their faithful fulfilment! Be assured that the bench has its trials and perplexities, and is not exempt even from the remorse of an unjust decision, though the effect merely of human fallibility. Bear with us, then, I pray you, if, under the strain of our arduous, anxious and distracting duties, we sometimes lapse into error and occasionally give vent to ebullitions of ill-humor. Over the infirmities of the upright judge charity will cast its veil; and the worth of the magistrate may atone for the weakness of the man. "Gentlemen of the bar, the bench greets you as brothers. It is only while the ermine is on that we assert any superiority of position. Descending from our official station, we stand on a level with the most recent of Dr. Abbott's graduates; and we solicit from them the familiarities of an equal friendship. Meanwhile, we invoke for you, one and all, the utmost fortune of the profession. Dat Galenus opes, dat Justitianus honores; wealth is not the reward of the lawyer, but by noble endeavor he may attain a better prize--a name of renown and an influence for good." Abstracts of Recent Decisions. Where ASSOCIATION -- LIABILITY OF MEMBERS. parties unite in a voluntary unincorporated association, and for convenience contract under an associate name, the acts of the association, it not being a legally responsible body, are the acts of its members who instigate and sanction the same. (Winona Lumber Co. v. Church [S. Dak.], 62 N. W. Rep. 107.) CONFLICT OF LAWS-DEATH BY WRONGFUL ACT. In an action by a father for the negligent killing of his child in a foreign State, unless the statute of the foreign State authorizing such an action be pleaded, plaintiff's right of recovery is governed by the common law. (Jackson v. Pittsburgh, C. C. & St. L. Ry. Co. [Ind.], 39 N. E. Rep. 663.) CONTRACTS - CONSIDERATION PUBLIC POLICY.- a specified sum monthly for four years, in case the latter rent the building to the government for a nominal sum, in order to secure the retention of the office in that locality, is supported by sufficient consideration and is not void, as against public policy. (Fearnley v. De Mainville [Colo.], 39 Pac. Rep. 73.) CONTRACTS OF CORPORATION, A contract made by a promoter is binding on the corporation, if adopted by it after its organization. (Pratt v. Oshkosh Match Co. [Wis.], 62 N. W. Rep. 84.) DEED - BONA FIDE PURCHASER. Plaintiff left a deed to his land with a real estate broker, who was negotiating for the sale of said land, with express instructions not to deliver it without plaintiff's con sent. Subsequently, the broker delivered the deed, without plaintiff's knowledge or consent. The grantee never took possession of the land, and thereafter sold it to defendant. Held, that defendant took no title in the land, although he was a bona fude purchaser. (Allen v. Ayer [Oreg.] 39 Pac. Rep. 1.) ELECTIONS-ERRONEOUS EXCLUSION OF VOTERS, Where qualified electors offered to vote, but were prevented from actually casting their ballots by an erroneous decision of the election judges, held, such ballots cannot be counted for the candidate the electors subsequently declared they intended to have voted for, if they had voted. (Pennington v. Hare [Minn.], 62 N. W. Rep. 116.) ESTOPPEL RETAINING BENEFITS. Where a debtor sells his property to a third person, and transfers the notes received in payment to a creditor, the latter is estopped, while retaining the notes, to attach the property in the hands of the third person as that of the debtor. (Larkin v. Wilsford [Tex.], 29 S. W. Rep. 548.) HOMESTEAD. - The fact that a building is used for a saloon will not deprive the occupant of homestead rights as against a creditor not claiming under a violation of the prohibitory law. (Groneweg v. Beck [Iowa], 62 N. W. Rep. 31.) HOMESTEAD EXEMPTION-REMAINDERMAN. -A remainderman may, on the determination of the particular estate, claim a homestead in the land as against his judgment creditors who have failed to sell, under execution, his interest in the land before the termination of the life estate. (Stern v. Lee [No. Car.], 20 S. E. Rep. 726.) INSOLVENCY-PREFERENCE. - Where an insolvent buys goods, and, under the contract, pays part of the price in cash, such transaction is not a voluntary payment in contemplation of insolvency, with a view to preferring the seller as a creditor. (H. B. Claflin Co. v. Levitch [Ky.], 29 S. W. Rep. 452.) INSURANCE-PROPERTY COVERED. - \ policy on a two-story brick building "and additions thereto," occupied as a dwelling, includes a building partly occupied by assured servants, and one of the rooms of which is used as a laundry, though it is not annexed to the brick building, where there is no other building in assured's yard which can possibly be claimed as an addition to the main building, not built in it as part of the house originally. (Phenix Insurance Co. v. Martin [Miss.], 16 South. Rep. 417.) MASTER AND SERVANT-PROMISE TO PROTECT EMPLOYE. A promise by an employer that "he would take all the risks of any accident that might occur" to an employe, does not include injuries caused by contributory negligence. (Phillips v. Michael [Ind.], 39 N. E. Rep. 669.) MUTUAL BENEFIT SOCIETY CERTIFICATE. - The beneficiary in a certificate of membership in a benevolent society, the Constitution of which provides that its members may surrender their certificates, has no vested interest therein which prevents the member from surrendering it. (Wells v. Covenant Mutual Benefit Ass'n of Illinois [Mo.], 29 S.W. Rep. 607.) NEGOTIABLE NOTE-BONA FIDES.-The fact that the purchaser of a note had notice of facts which would have put a prudent man on inquiry as to defects therein, and failed to make inquiry, does not, as a matter of law, prevent him from holding the note free from all equities. (Bowman v. Metzger [Oreg.], 39 Pac. Rep. 3.) PLEDGE-BONA FIDE PURCHASER. - One who re ceives as collateral security to a loan contemporaneously made negotiable bonds not yet matured, without knowledge of any defense to such bonds, is entitled to protection as a purchaser thereof, to the extent of the amount of such loan. (Hayden v. Lincoln City Electric Ry. Co. [Neb.], 62 N. W. Rep. 73.) TRIAL MISCONDUCT OF JURORS. - A defendant who joins with jurors in drinking at plaintiff's expense, and who gives no notice to the court of the occurrence till after the verdict is rendered, cannot, on a motion to set aside the verdict, urge that the jurors were, by receiving the liquor, influenced in plaintiff's favor. (Bradshaw v. Degenhart [Mont.]. 39 Pac. Rep. 90.) WILL-ESTATE IN REMAINDER. -A testator devised all his real estate to his wife for life, and by a subsequent clause devised all his lands to his grandson. Held, that the grandson took an estate in remainder. (McCord v. Caldwell's Ex'r [Fay.], 29 S. W. Rep. 440.) THE ALBANY LAW JOURNAL. The Albany Law Journal. ALBANY, MAY 11, 1895. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] T HE recent rejection of two jurors in the McLaughlin trial by Justice Barrett, of New York city, should receive the absolute approval of every member of the bar. There is too much laxity allowed jurors at the present time in answer to questions which involve their qualifications to sit as members of a body who have the most sacred right to determine and Not only is this so, but a much greater danger might be met with in relation to the evils which exist in jury trials and which must necessarily work to the prejudice of the decide. system. In the recent constitutional convention the strongest arguments were advanced in support of the idea of abolishing entirely the system of trial by jurymen and to allow the court to determine the facts as well as the law in the case. With the increasing dangers which appear in the situation and with the increased demand of the people for purity in judicial proceedings it is not difficult to perceive that the day is rapidly approaching when we will be without the service of these arbiters of the destiny of causes. One of the jurors at the McLaughlin trial distinctly stated that he did not know of the person who was to be one of the witnesses in the case, while the other made some, it is alleged, mis-statements in regard to his relation to certain individuals who were very close and friendly to the defendant. It is not to be presumed that jurors intentionally made these mis-statements with the purpose in view of becoming members of the jury which was to try a man for whom they entertained some friendly feelings, but the attorneys for the parties to the action are entitled to absolutely true answers to the questions which they put, so as to enable them to determine the qualifications of the men who are to decide the cause which they present to the court. In this case Judge Barrett again demonstrates his ability, competency VOL. 51- No. 19. and fitness for the high office which he holds The A dissenting opinion of considerable interest is that of Judge Canty of the Supreme Court of Minnesota in the case of Blomquist v. Chicago, M. & St. P. Ry. Co., which was recently determined by that court and whose decision has just been handed down. The action was brought to recover damages for injuries said to have resulted from the defendant's negligence while constructing a platform on which to raise a derrick. From the evidence it exclusively appears that the foreman of the crew with which the plaintiff was working as a common laborer was vice principal, for whose negligence the defendant's must be held responsible. opinion of Judge Canty lays down some able and interesting principles in the matter of the liability of a superior to an inferior servant through its vice principal. Among other things Judge Canty says: I cannot concur in the foregoing opinion. It cannot be held in this case, as a question of law, that the foreman, Enger, was a vice principal, except on the doctrine that the mere fact that the foreman has authority to hire, discharge, and oversee other servants constitutes him a vice principal. This is the doctrine of the courts of Ohio and some other States, and was for a time the doctrine of the This court has never before Federal courts. adopted that doctrine. This case cannot be distinguished in principle from Lindvall v. Woods, 41 Minn. 212; 42 N. W. 1020. And, while the majority profess still to follow the extreme doctrine of that case, they have in fact gone to the other extreme, and adopted the Ohio doctrine. If the doctrine of Lindvall v. Woods is to be overruled, it should be overruled squarely, and not in this manner. the question of whether such a foreman is a vice principal, the different courts take one extreme or the other. But I am of the opinion that between these two extremes there is a middle ground, which is far more just, and. the principles of which are sound and practicable. These principles I will hereinafter discuss. On The foundation for the platform of the derrick in this case was a temporary appliance, constructed by the men in the progress of the work, as was the defective trestle in Lindvall v. Woods, the insufficient curbing and braces for the same in Bergquist v. City of Minneapolis, 42 Minn. 471; 44 N. W. 530, the defective step on the side of the lumber pile in Fraser v. Lumber Co., 45 Minn. 235; 47 N. W. 785, and the defective scaffold in Marsh v. Herman, 47 Minn. 5273 50 N. W. 611. In each of these cases this court held that the rule which imposes on the master the duty to provide safe machinery and appliances for the use of his servants has no application to temporary appliances of this character; that when such appliances are prepared during the progress of the work by some of the servants of the common master, they do not come within that rule, and I concede this to be the correct principle. But in the case of Sims v. Barge Co. (Minn.), 57 N. W. 322, this court, while professing to adhere to that doctrine, held that the mere fact that the temporary appliance - the scaffold was constructed by servants employed for that purpose, and that the servant injured took no part in the construction of the same, entitled him to recover if the scaffold was defectively constructed, by reason of the negligence of those servants who constructed it, and he was injured thereby. This is simply holding that servants employed by the same common master, in different departments of the same work, are not fellow servants, and that the master is liable for the negligence of a servant in one depart ment resulting in injury to a servant in another department. This court has often repudiated that doctrine. See Neal v. Railway Co. (Minn.), 59 N. W. 312, and cases cited. The derrick platform was a temporary place, constructed by the fellow servants of plaintiff as a part of the work in which they were engaged. It was not a permanent place provided by the master beforehand, and what is known as the rule that the master must use due care to provide a safe place for his servants to work in does not apply. But, in my opinion, it does not follow from this that the defendant should not be held liable. The plaintiff is a common laborer. He was not employed to exercise the mechanical skill or expert knowledge which may have been necessary to determine whether or not the foundation for this derrick was safe. This foundation was built beside the railroad track, on the slope of an embankment. The stone which was being raised at the time was across the track, on the opposite side of the embankment, and was unusually heavy. The outer end of the boom or arm of the derrick was more than one-half the length of the upright mast, away from the mast. Applying the principle of the lever, the top of the mast, being held fast by the guy ropes, would act as a fulcrum, and the weight of the stone on the end of the boom would have a tendency to push the bottom of the mast off in the opposite direction, down the embankment, with a side pressure of about one-half the weight of the stone, and this probably caused the foundation to give away. But, whether it was this or some other cause, it cannot be held as a question of law, that a common laborer should have sufficient skill to investigate this foundation for himself, and decide whether or not it was safe, or that he should know or appreciate the dangers to which he was being exposed. If he had or should have had such skill, it was his duty to exercise it, and the master should not be held liable. But if he was not employed to have, did not have, and could not be expected to have, the skill reasonably necessary for his own protection, the duty of protecting him should devolve upon the master. The plaintiff is not paid for exercising such skill, and it is a beautiful theory of law which requires him out of his wages, of perhaps one dollar per day, to hire an expert, whose services are worth five or ten dollars per day, to inspect these temporary appliances for him, and inform him as to their safety. As I have stated, it is held by a number of courts that the mere fact that the superior servant has power to hire, discharge, and direct the inferior servant is alone sufficient to constitute the superior servant a vice principal as to the inferior servant; but it seems to me that it should require something more to give the superior servant that charatcer. It is often the case that the inferior servant is more famillar than such foreman with the dangers to which he is exposed, and is better able to protect himself from those dangers than the foreman is to protect him; and yet, without his fault, and by reason of exposure to those dangers, he may be injured through the negligence of the foreman. When the inferior servant knows and appreciates the dangers to be avoided, and is as well, or nearly as well, able |