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 incumbents by reason of the adoption of a new Constitution. 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

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.

(Signed)

LOUIS MARSHALL.

THE

THE following address was delivered by Judge Roger A. Pryor at the annual dinner of the Alumni of the University Law School on April 18, 1895, in response to the toast, "The Bench: "

"MR. CHAIRMAN AND GENTLEMEN: The topic naturally suggested by the toast you offer, is the reciprocal obligations of the bench and the bar. The duty of counsel is by careful research and discussion so to present the case, on each side, as to enable the court to render a right decision. In the 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

"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 arrange ment 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.

nian period of gestation. Curia advisori 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.

ASSOCIATION LIABILITY OF MEMBERS. Where 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 com(Jackson v. Pittsburgh, C. C. & St. L. Ry. Co. [Ind.], 39 N. E. Rep. 663.)

mon law.

CONSIDERATION

PUBLIC POLICY.-

-

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 consent. 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 fide 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.)

BENEFITS.

ESTOPPEL- RETAINING 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.)

A re

HOMESTEAD EXEMPTION-REMAINDERMAN. mainderman 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 receives 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 [Fy.], 29 S. W. Rep. 440.)