force of the court might enable it to do a little more work than at present. The other remedy, of discouraging appeals, seems to me to be in the right direction. That the Court of Appeals should not be called on to decide any but substantial and serious controversies, involving important or novel principles of law, every one will admit; but how to rid it of frivolous appeals is a matter upon which it will be difficult to secure an agreement. The methods thus far suggested are either by a limitation the amount involved, which is entirely wrong in principle, or by putting it in the power of the courts below to refuse leave to appeal, which is open to the same objection, and would probably prove ineffectual in practice. Now the chief inducement to making frivolous appeals is undoubtedly the fact that the appellant is enabled to remain in possession of the subject of the litigation during the whole period of the pendency of the appeal. He may have the verdict of a jury against him, and the well-considered judgment of a General Term, but if he can get a couple of easy friends who will swear through their qualifications, he files his bond and gets the delay of years as a matter of course. At the end of some indefinite period, if the case is affirmed, the respondent has a judgment which may or may not be collectible against the judgment debtor, and he has the materials for a law suit against the sureties. No lawyer needs to be told how this fata] facility for postponing the evil day of payment multiplies appeals, and how frequently the threat of "hanging up a case for years is used by debtors to force needy creditors into settlements of just debts. And there are few lawyers who do not know of cases that have gone to the Court of Appeals only to end in vain attempts to collect judgments against a principal and sureties. All become alike insolvent during the pendency of the appeal. No one can doubt that if defeated debtors were compelled to pay up after the decision of a General Term against them, they would not be so ready to appeal. I would not of course deprive defeated debtors of their right to appeal. I would only restrict their power to oblain a stay of proceedings by abolishing entirely undertakings to stay execution, pending an ap peal to the Court of Appeals, where the judgment of the General Term was a judgment of affirmance. It the appellant preferred not to trust the ability of the respondent to make restitution in case of reversal, he could pay the amount with interest, etc., into court (as under § 1306 of the Code), and so get a stay; but I would in such cases allow the respondent to withdraw the fund on giving an undertaking for restitution, with sufficient sureties. Similar principles might be extended to appeals from the affirmance of judgments directing the delivery of property, or the recovery of a chattel or of real property. The respondent, not the appellant, should have possession during the pendency of an appeal to the Court of Appeals on giving a bond against waste or the like. The result of some such provisions would probably be not only to discourage many frivolous appeals, but to induce greater care in the argument and decision of cases at General Term, and also to remove some of the inducements to defending cases solely for purposes of delay. The debtor now takes all the chances of success in the Court of Appeals, and meanwhile borrows money of his successful creditor at the absurdly low rate of six per cent interest and costs. A judgment debtor who can obtain a loan for two or three years on such terms must be foolish indeed if he does not appeal. The argument against the plan I suggest will of course be that inasmuch as many cases are reversed in the Court of Appeals, the mere fact of an affirmance at General Term ought not to be taken as so conclusive an adjudication that a debtor should be compelled to part with his property at an inconvenient season. The proportion of cases reversed after affirmance at General Term cannot be exactly stated, because the reports do not in all cases state the action of the General Term. With cases where the appeal is from a judgment of reversal, have nothing to do. But taking the last four volumes of New York Reports I find 357 cases affirmed, 135 reversed, 10 modified, and 51 appeals dismissed. Of the judgments either affirmed or reversed absolutely the proportion would be about 73 per cent affirmed to 27 per cent reversed. Now wise legislators seek to attain, not flawless perfection, but such a state of things as shall on the whole work out the best results. Are we then to legislate for the 135 reversals or for the 357 affirmances? Surely for the latter. It may no doubt be hard on a party, unjustly defeated below, to part with his property while he is seeking redress; but it is just as hard, and three times more common, for the party justly successful below to be deprived of his property while his wealthy adversary invokes "the law's delay." Of course the figures here given do not accurately measure the proportions of cases to be affected. Of the 135 cases reversed, some are cases where the General Term has reversed the judgment or order below. In other words, out of the 492 cases in question, the rule I suggest would have done good, or no harm, in more than 357; while it could only have worked hardship in less than 135. Besides where the judgment below was only for costs, the hardship would be infinitesimal in most cases. The statistics above referred to show another remarkable feature. The decisions in the last four volumes of the Court of Appeals may be thus classi fied: 93 N. Y., 33 cases reversed, 73 affirmed. 36 88 31 87 109 66 It will be observed that while the number of reversals reported remains nearly constant, the number of affirmances has of late greatly increased. This would seem to indicate just what is to be expected in the present, condition of affairs, to wit: a marked increase in the number of frivolous appeals, which the court usually disposes of by affirmance, without opinion. On going back to 83 N. Y., the present increase in affirmances is very clearly shown for the numbers there are 35 cases reversed to only 63 affirmed. I do not think that the adoption of my suggestions would prove a panacea for all the ills of which the court is suffering. It is merely one of several remedies which might all be administered together, and which, though not separately very important, would together work a considerable change for the better. I would, for instance, increase largely the present costs of appeal. I would limit the right of appeal from orders which "decide an interlocutory application or a question of practice "-perhaps by allowing such appeals only when leave was given by the court below. It might be well also to refuse costs below to the plaintiff where his recovery was such that the action might have been brought in the County Court or other similar tribunal. Such a rule would work no hardship at this end of the State, as the excellent record of our City Court shows. How it would do in other parts of the State I do not know, but it would seem to be reasonable, and would certainly be effective in relieving both the Court of Appeals and the Trial Terms of the Supreme Court and Superior City Courts. Whatever plan is adopted, it must be one that is selfexecuting. We can leave nothing to the discretion of judges in this matter. It has long been the rule that judges must cut down and limit the verbosity of cases on appeal, but the rule is continually and persistently disregarded. The Court of Appeals has power to award damages for delay, and it is understood that in fifteen years they have not once exercised that power. Before any plan of relief is submitted to the Legislature the judges of the Court of Appeals must be prepared to express their opinion. A plan, carefully considered and worked out in all its details, would doubtless command the immediate approval of the Legislature and the governor, if assented to by the judges of the court, and till their assent is secured no relief is possible. Meanwhile, discussion is not without its value. NEW YORK, Feb. 5, 1885. Y. POLITICAL CONTRIBUTIONS FROM CANDIDATES FOR JUDGESHIP. Editor of the Albany Law Journal: The proposed bill, to prohibit the soliciting of political assessments from judges or candidates for judicial offices and the payments of such assessments by such candidates, has been received with so much favor by gentlemen whose judgment is entitled to great respect, that I am encouraged to press it and to urge others to promote it. The evils sought to be corrected may not exist elsewhere, but in the First Department they have grown until they have become glaring and disgraceful. I will instance examples of these evils. It is the commou report, and my information leads me to believe the report to be true, that it is the practice here for party managers to request a political contribution, of a fixed amount, from such of the judges in office as were elected by the party to which the party managers belong. The request is made annually and it is more than a request, because there is an implied threat that if the request is not complied with the judge will forfeit the support of the party managers. I have also heard it said that in some cases there has been an understanding, that an annual contribution should be made as a condition of receiving the nomination. Within six years a bid of $25,000 was made, to my knowledge, for a nomination for a judgeship. The bid was declined, but the gentleman who received the nomination was compelled to apply to his friends for loans of money to enable him to pay the required assessment. The bidder referred to was not discouraged by the first failure and has renewed the offer on more than one occasion since, happily without suc cess. In a conversation last summer with one of our judges, whom I have heard described, and justly, I think, as the best all-round judge in this department, he remarked that if his term of office was about expiring be could not hope for a renomination, because he could not pay the assessment of $25,000, which would be required. The nominations for judicial offices at the election in November last occasioned much discussion and gossip among the bar. It is said that of the unsuccessful candidates one was assessed and paid $30,000, another $25,000. I have referred to some of the most glaring of the evils, and I have no doubt that other examples could be given and substantiated. It is to correct such evils that the measure was designed. It has been suggested that one effect of the measure would be to restrict the candidates to unscrupulous men who would not hesitate to defeat the letter and spirit of the proposed bill by devices which honest men would not resort to. There is some force in the objection, but I think there are sanctions in the measure which would stop such practices. For example, the unscrupulous candidate will be exposed to many dangers; the grand jury, the press, and the zeal of the party managers of the unsuccessful party. Moreover the unsuccesful candidate will be prone to suspect his successful rival. One conviction under the proposed law would be likely to make the unscrupulous mau hesitate. I inclose a copy of the proposed bill in the form in which I think it should be adopted. Very truly yours, NEW YORK, Feb. 10, 1885. ARTEMAS H. ADAMS. A Bill to Prohibit and Punish Soliciting from Judicial Officers or Candidates for Judicial Offices, and the Payment by such Candidates of Assessments, Subscriptious or Contributions for Political Purposes. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. No person shall, directly or indirectly, solicit or be in any manner concerned in soliciting any assessment, subscription, or contribution in money or property, of any kind or value whatsoever, for any political purpose from any person holding the office of judge or justice of any of the courts named in Article First of Title 1 of Chapter 1 of the Code of Civil Procedure; or from any person who is a nominee or candidate for election to the office of judge or justice of any of said courts. SEC. 2. Any person who shall violate the provisions of the next preceding section of this act shall be guilty of a misdemeanor, and shall, on conviction thereof, be punished by a fine, not less than one thousand dollars, or by imprisonment for a term not less than one year, or both. SEC. 3. Any person, being a nominee or candidate for election to the office of judge or justice of any of the courts referred to in section one, who shall within three months prior to his election or appointment to any such office, directly or indirectly subscribe or pay, or promise to pay, or who shall cause or induce any other person to subscribe or pay, or promise to pay, any assessment, subscription or contribution, in money or property of any kind or value whatsoever, for any political purpose, shall be guilty of a misdemeanor, and shall, on conviction thereof, be punished by a fine, not less than one thousand dollars, and by imprisonment for not less than one year, and shall also forfeit his office. INCONSISTENT DECISIONS-DENIALS ON INFORMATION AND BELIEF. Editor of the Albany Law Journal: In the case of Pratt Manufacturing Co. v. Jordan Iron and Chemical Co., 33 Hun, 143, the General Term of the First Department, Daniels, Davis, and Brady, JJ., are reported as holding that an answer denying the allegations of the complaint on information and belief, is bad, and should be stricken out. In the 21st of Hun, in the case of Brotherton v. Downey, p. 436, the General Term of the same department, Davis, Barrett, and Ingalls, JJ., held that such a denial was not only proper, but that a party had no right to interpose an unqualified denial in a verified answer, unless it be founded upon personal knowledge, and that where he has no positive knowledge, but has knowledge or information sufficient to form a belief, he is not only permitted, but "bound at his peril" to deny upon information and belief. In the case first cited, reported 33 Hun, 143, no allusion is made to the prior decision in Brotherton v. Downey. The two decisions cannot stand together. One is directly opposed to the other, and still the General Term of the First Department has planted itself on both sides of this question, the eminent presiding justice, Davis, concurring in both decisions. If the later decision is correct, then a defeudant who has information from which he believes the allegatious of a complaint are false, but has no positive knowledge on the subject, is in a very embarrassing position. He caunot, Judge Daniels says, deny on information and belief. If he denies that he has any knowledge or information sufficient to form a belief as to the truth of the allegations of the complaint and swears to his answer, he commits perjury. If he de. nies unqualifiedly, and it should turn out that the information which he believes to be true is in fact false, he is liable to be convicted of perjury, under section 524. Judge Daniels says in his opinion, speaking of the denial on information and belief in that case: "It (the defendant) might very well have had the requisite knowledge or information to form a belief that all the allegations contained in the complaint were true consistently with the answer as it was served in the action" (p. 144). Exactly how this can be, it is difficult to see. If the defendant was informed and believed that the allegations in the complaint were false, as the verified answer stated in that case, such information and belief were hardly consistent with the defendant's having knowledge or information sufficient to form a belief that the allegations were true. It would seem to the ordinary unjudicial mind that a man having information which led him to believe that a complaint was true, could not consistently swear that he was informed and believed that it was false. The decision in 21 Hun, 439, seems clearly to be right; otherwise the provision in section 524, speaking of the allegations or denials in a verified pleading, that "unless they (the allegations, or denials) are therein stated to be made upon the information and belief of the party, it must be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading," would be entirely inoperative in regard to denials. The language of that section makes it clear, as Judge Barrett says in 21 Hun, that where a defendant has knowledge or information sufficient to form a belief as to the allegations in the complaint, and such allegations are not within his personal knowledge, he is "bound upon his peril to deny upon information and belief." H. ALBANY, Feb. 10, 1885. P. S.-Since writing the above, I have noticed that a motion for a re-argument in the Pratt Manufacturing Co. case was made and denied, as appears at p. 544 of 33 Hun. The court there attempts, but it seems to me without success, to distinguish the case before it from Brotherton v. Downey. The cases of Swinburne v. Stockwell, 58 How. Pr. 312, and Powers v. R., W. & O. R. Co., 3 Hun, 285, are cited as sustaining its decision. The case in 58 How. was a Special Term case; that in 3 Hun was under the old Code, and is no authority as to the construction of the Code of Civil Procedure. The court say that section 500 permits no such form of pleading. But why not? True, it does not in so many words say either that the " denials," or the "new matter," therein authorized may be stated on information and belief. Neither does section 481, which provides what a complaint shall contain, say any thing about "information and belief." Section 500 does not provide that the denials shall not be made on information and belief, any more than it prohibits new matter to be thus alleged. Indeed the permission to make allegations on information and belief at all is not anywhere expressly given, but it is implied from the provisions as to verification, which apply to "denials," as well as to "allegations." NEW BOOKS AND NEW EDITIONS. ARISTOTLE'S POLITICS. The Politics of Aristotle, translated, with an analysis and critical notes by J. G C. Waldron, M A., Fellow of King's College, Cambridge, and Master of Dulwich College. MacMillan & Co., London. A work so celebrated as Aristotle's Politics was eutitled to the most judicious and skillful treatment at the hands of the translator and editor. It is hardly necessary to say that in this edition this celebrated work receives the care and scholarship it is fairly entitled to. No library of political philosophy is complete without Aristotle's Politics and Plato's Laws, for they mark a phase of human thought at its infancy. It is almost useless to read Vico, Montesquieu, Hobbes, or Bodin unless we know what Aristotle and Plato have said in a spirit not far removed from those of later political philosophers. In this edition of Aristotle we have the entire scheme of the work in the shape of a preliminary analysis of great value to the student, and so far as we have been able to compare the text of the original, a translation of singular fidelity, yet indicating an elegant and liberal scholarship free from servility. NOTES. WO of the leading lawyers of our State and Nation by receptions. Mr. Evarts was entertained by the Union League Club, of which he is the president, by a reception in honor of his election to the United States Senate, an office which he richly deserves and which he will greatly adorn. Mr. David Dudley Field, on the occasion of his 80th birthday anniversary, was entertained by his brother, Mr. Cyrus W. Field, and a crowd of friends testified to their admiration and good will. The following verses were addressed to Mr. Field by Mr. F. J. Parmenter, of Troy, who is famil iar to our readers as a poet: Except in years, thou art not old; There's scarce a wrinkle on thy brow, You must have followed Nature's code Where you so much have wrought. To aid your task, vast mental powers, Comparing with your works your years, You're twice that age to-day. Some frost may round your temples cling, Now, when Time's rapid wheel shall bring The Albany Law Journal. THE ALBANY, FEBRUARY 28, 1885. CURRENT TOPICS. THE current number of The Century magazine is den say of him that he thought he had a more precise knowledge of the science of jurisprudence than any other person living of the English speaking race." Mr. O'Conor was undoubtedly a very busy lawyer, but he was no genius and he has not been sorely missed. His death created no such vacancy as the death of Webster and Choate, for example. There are a score of lawyers to-day just as competent as O'Conor, but where are the successors of those great men? Mr. Bigelow discloses an unpleasant credulity in O'Conor, who it seems could believe that Chancellor Walworth decided all Burr's causes against him from personal pique. As Mr. Bigelow says, there is too much vanity in the Chancellor's address on assuming office, but the man must have been prejudiced who could believe Aaron Burr as against Reuben H. Walworth. It is amusing to read the following: "He said that as far as he knew, he as much as any one was entitled to the credit of originating the reform of our system of procedure in 1847-8, the abolition of forms of action, and the abolition of the Court of Chancery. He said he made the plea for those reforms in the Constitutional Convention of 1846. He would on no account, he said, claim for himself, or have any willing to be instrumental in defeating the pretensions one claim for him the credit of these, but he was quite of any other person to their authorship. The line of remark had been suggested by the news then just received that Governor Cornell had vetoed the Field-Throop Civil Code- - an act on the governor's part with which he repeatedly expressed the greatest satisfaction. Recurring to this subject of codification later, he said he doubted whether our civil law could be codified successfully; he inclined to think it could not, and proceeded to place his doubts upon grounds substantially the same as those which have been more recently set forth in Mr. James C.Carter's exhaustive and masterly discussion of that subThe italicized words show the true dog in ject." the manger spirit. The reference to his former associate in business, Mr. Carter, is significant. We had supposed however that Mr. Carter's views were original with Mr. Carter, but it now seems not imwith O'Conor. Perhaps O'Conor wanted to get rid possible that he absorbed them from association of chancery on account of his dislike for the chancellor. But to claim him, or for him to claim himself as the originator, or even as a champion of pracThe other portrait is of Charles O'Conor, with a tice codification, is ridiculous. Our old readers paper of considerable interest by John Bigelow. will not have forgotten his celebrated letter on Mr. Bigelow conveys a good deal of information code pleading, and his avowal of his utter inability that will be new to his readers. It is touching to to "state the facts" in any case, and his fling at read the record of O'Conor's early poverty and "the pleadings which come from the office of the struggles, of his generosity and beneficence, and of chief codifier himself." But even according to his chivalric devotion to his early benefactor. O'Conor, as stated in Mr. Bigelow's paper, the old These are tender traits in a character usually con- system of pleading was at least as bad as the new, sidered cold and stern. But Mr. Bigelow strikes for he said "he never knew a case in which the too high a strain when he says at the outset and at parties had been pleading for an issue a year that the close: "The death of Mr. O'Conor has left a he could not find a defect of sufficient gravity to set large vacancy in the American bar, larger perhaps their proceedings aside." Really, when Webster is than was ever created before by the death of any pronounced a Colossus of morality, and O'Conor the single individual;" "I once heard Governor Til-originator and champion of codification of practice, VOL. 31-No. 9. we may well adopt Sir Robert Walpole's estimate of history that whatever else may be true, history must be a lie. catalogues, and they go far to bear out the librarian's Two distinguished British lawyers have just died Of Lord O'Hagan there is appreciative remark in our current London letter. Of Sir Robert Phillimore the London Law Journal says: "With the death of Sir Robert Phillimore probably disappears the subject of text books, and there is a good deal A Vermont lawyer thus frees his mind to us on the last of the civilian lawyers. They were distinguished, with notable exceptions, like Lord Stow-what work on damages you consider the best for of justice in what he says: "Will you inform me ell, rather by learning than capacity, by subtlety in argument rather than depth of insight. For the future, the law which they practiced will less and less possess a special class of practitioner devoted to it alone, but will be taken up as occasion requires by the ordinary practitioner who may have turned his attention in that direction in spare moments. This is not a subject of regret, as special lawyers and special courts have a tendency to narrowness; and it would be a step in the right direction if the probate, divorce and admiralty division were merged in the Queen's Bench, or at all events, if divorce were distributed in turn among the Queen's Bench judges. Sir Robert Phillimore represented the transition period between the old school and Some busy fellow, who has not the courage to sign any thing more than his initials, writes us as follows: "I have just had time to look at your number of February 14th. In it I find the following, speaking of the scrap-book of Judge Folger: 'The editor feels greatly distinguished by being made the recipient of this precious legacy, and when he has done with it and with all other earthly affairs, will deliver it to our Court of Appeals for practical use? I have Sedgwick, but the text does not state what the law is upon a given subject. The notes are full of all kinds of decisions and after two hours' consultation with the books no point is gained. I am disgusted with such compilations for elementary books. This book is only one of many at the three volume work, probably by the number of volpresent day. I see, by the name only, that there is a umes, a compilation "thorough and complete" of all trash and law ever written or enunciated by judges upon the subject, and for a practitioner how many days would it take to find the law upon the case in hand, if at all? If a man is capable of making a book, let him write in the text and tell what the law is and then cite authorities to sustain it. A book of 700 pages can hold all that is necessary upon the subject. Jones' Laws of Bailments of 1796 make books full of "exhaustive research." There is a good pattern and guide for those editors who is one other among many others I wish to speak of, Story on Agency. Many half pages are given in Latin. If it is an English book and for English educated people to read, in Heaven's name why go back into an old dead language to give Americans an elementary treatise? Much more reason for incorporating into such books the French language; either would be a fault." NOTES OF CASES. v. L. & Ry. preservation among its archives.' Is the Court of IN Coup v. Wabash, St. L. & P. Ry. Co., Michigan Appeals an earthly affair, or not? How, after done with all earthly affairs, will you deliver it?" This is a sample of the letters which an editor gets. Is it any wonder his waste-basket is so full? The first question is of course too absurd to need an answer. As to the last, we answer that we shall deliver the book to the Court of Appeals by will, but we should never think of employing such a critic to draw the will. Mr. Culver, librarian of the Chicago Law Institute, writes us: "Referring to your article on Lawyers Tools in No. 5 of the current volume of your esteemed journal, we send you to-day a copy of our catalogue and the three supplements, which will probably show you that this institution of the west contains almost everything on Roman law, general jurisprudence and international law that is written in the English language." We have received the Supreme Court, January 28, 1885, 22 N.W. Rep. 215, it was held that a railroad company that contracts with a circus proprietor as a hirer, and not as a common carrier, to furnish men and motive power to transport his circus and menagerie in special cars owned by him, to be operated under the management and control of the proprietor, but to run according to the rules, regulations and time-tables of the company, from a point designated to certain other points, at greatly reduced rates, with the privilege of stopping at places and times stated to give exhibitions, is not liable as a common carrier, and may stipulate for exemption from responsibility for damages caused by the negligence of its servants while in this special employment. The court said: "The duty to receive cars of other persons, when existing, is usually fixed by the railroad laws, and not by the common law. But it is not incumbent on companies, in their duty as common carriers, to move such cars except in their own routine. E |