« EelmineJätka »
against the officer making them, held, that such a pur would entitle C. to recover such sum of M., as money chaser could not maintain replerin, that the property paid for and on his account, upon an implied promise therefore remained in custodia legis and operated sub to reimburse C. therefor. The burden is not op M. to modo as a satisfaction of the first execution, and that prove that such sum was not applied on the rent. The the issuing of the second and the levy and sale under it assignment by a lessee of all his rights and interests in were therefore unlawful, and the officer was liable ac the premises, without his lessor's consent, will not cordingly. Blair v. Caldwell, 3 Mo. 354; Moss v. Craft, thereby discharge him from his express obligations, 10 id. 720; Williams v. Boyce, 11 id. 537; Blackburn v. and he will therefore remaiu liable upon his original Jackson, 26 id. 308; Thomas v. Cleveland, 33 id. 126. contract after his assignment. But as his liability Freeman on Judg., § 475; Herman on Esec., § 176; thus remains, he is entitled to be indemnified by his Wells on Repl., $S 243, 244. State Colvin v. Six. assignee, against the payment of rent during the conOpinion by Norton, J. (See ante, 130.-ED.]
tinuance of such assignee's term. While in the possession of the estate, and enjoying the benefit of the
lease, there is an implied promise on the part of the OHIO SUPREME COURT COMMISSION AB- assignee, that he will also take the burden from his STRACT.*
assignor, and indemnify him against the claims of the
lessor, while he holds under the assignment. Patten ASSIGNMENT FOR CREDITORS-NEGLECT TO PRESENT v. Deshon, 1 Gray, 330; Farrington v. Kimball, 126 CLAIM WITHIN TIME-RIGHT TO SHARE.-Uuder the
Mass. 313; Moule v. Garrett. L. R., 5 Exch. 132; S. C., statute relating to insolvent debtors the creditor of an
L. R., ✓ Exch. 101; Burnett v. Lynch, 5 Barn. & Cres. assignor, who does not present his claim prior to the
589. Nor is this principle inapplicable where one of payment of a dividend and within six months after
two joiut lessees assigns to the other all his interest in publication of the notice of assignment, may after
the lease. It is stated by Mr. Justice Willes, in Moule ward present his claim and receive a dividend thereon, V. Garrett, supra, 7 Exch. 104, in expressing his equal to that paid to other creditors, in case there is
concurrence in the decision on an appeal in that case, money or assets remaining in the hands of the assignee
that where a party is liable at law by immediate sufficient to make such payment. Owens v. Ramsdell.
privity of contract, which contract also confers & 33 Ohio St. 442. Carpenter v. Dick. Opinion by Nash, benefit, and the obligation of the contract is common J.
to him and to the defendant, but the whole benefit of
the contract is taken by the defendant, the former is WILI-PROVISION REQUESTING SERVICES-LIABIL. entitled to be indemnified by the latter in respect of ITY OF ESTATE FOR DISCHARGE.-A testator provided
the performance of the obligation. C. did not cease in his will as follows: “I hereby request and desire
to be an original debtor to the lessors for rent that William J. llarker, who has attended to my business, had accrued after his making the conveyance to his keeping my books and accounts, to continue to take
joint lessee. But as between himself and McH., he charge of and keep the accounts of my estate for my
was a surety, and upon payment to the lessors of any executor and trustee, and in any way he can to assist portion of such rent, he had his remedy over against in the settlement of my estate, so long as his services
McII. as principal, to be reimbursed. Wolveridge v. may be necessary, and for such services I allow him a
Steward, 1 Cr. & M. 614, 660. See also the opinion of salary of $1,500 per year, to be paid to him by my ex Baron Parke in Humble v. Langston, 7 M. & W. 517, ecutor in montbly installments.” Hell, that this pro 530. (2) When a surety pays the creditor's claim, he vision of the will in favor of Harker was not a legacy, must be legally bound for it, to enable him to recover but a testamentary provision requesting his services
the amount paid of the principal. And it must also in the settlement of the estate and fixing the relation
appear, that at the time of the payment, the principal between him and the executors, in case he entered himself was under a legal obligation to pay. The upon the performance of the services and the same
surety cannot, by a voluntary payment, when not were accepted by them; that the liability of the es
legally bound, place himself in a better position toward tato for the discharge of Ilarker was the same as if he the principal, than that of one not a surety, who volhad been wrongfully discharged from such service untarily pays money in the discharge of the debt of when in the performance of a contract with the ex another person; and cannot by such voluntary pay. ecutors, to serve upon the same terms and conditions.
ment impose upon the principal an obligation which Ilurker v. Smith. Opinion by McCauley, J.
he was not under at the time of the payment. HolPARTNERSHIP-LEASE TO-LIABILITY AFTER DISSO
linsbee v. Ritchey, 49 Ind. 261. McHenry v. Carson. LUTION-PARTNER RELEASED) MAY RECOVER FROM CO
Opinion by Dickman, J. PARTNER.—(1) C. and M., partners, held as joint lessees a lease of certain premises for ninety-nine years, renewable forever, with covenants for payment of
FINANCIAL LAW. rent, taxes, and assessments. The partnership was dissolved, and C. conveyed to M. all his undivided in
NEGOTIABLE INSTRUMENT NOTICE OF DISHONORterest in the leasehold. The assigneo of the reversion
ASSIGNMENT FOR CREDITORS-NON-RESIDENT CREDIbrought suit on the covenants for rent, against ('. and
TOR.-(1) A bank of this State bound as indorser of a M. jointly, for arrears of rent accrued after the disso
noto payable in New York and held there, failed and lution of the partnership. Pending the suit, M. being
made an assignment for the benefit of creditors. The in default of answer, C. filed an answer denying all
note not being paid at maturity, the holder caused it liability for rent, but afterward paid to the assignee of
to be protested and notice to be given to the bank, but the reversion the sum of $500, who in consideration
not having heard of the failure and assignment, gave thereof negotiated and executed to him a release from
no notice to the assignee. Ileld, that the notice given all and any liability arising on or growing out of the
was sufficient to bind the bank. Bank v. Reynolds, 2 lease, and forever discharged him from all and any
Cranch, C. C. 289; Baldwin v. IIale, 1 Wall. 223; Ogden covenants therein, and from all the obligations thereof.
v. Saunders, 12 Wheat. 279. (2) If one, whose name Held, there is not such a presumption that the above
appears on a note as indorser, is really the maker, it is named sum was paid on accrued rent, and not in dis
his duty to provide for its payment, and if he fails to charge of future contingent liability on the lease, as
do so, and the note goes to protest, he is not entitled
to notice. Merchants' Bank v. Easley, 44 Mo. 286; *To appear in 41 Ohio State Reports
IIarness v. Davies County Savings Bank, 46 id. 357;
Daniel Neg. Inst. (1st ed.) 1074. Donnell V. Lewis That business is increasing and must continue to in. County Savings Bank. Opinion by Ray, J.
crease, not only in the near future but for an indefinito period. No temporary expedient will satisfy the
demands of the people, nor the exigencies of the case. CORRESPONDENCE.
No scheme is worthy of discussion which fails to or
garize a court that will endure without reconstruction NOTICE OF PENDENCY.
for at least a century. Editor of the Albany Law Journal:
The proposition to curtail present liberty of appeal
is an obnoxious one. Your correspondent, “Arm,” in his communication,
The people will not resign any vol. 31, p. 198, urging an amendment of Code (iv.
of the powers they now possess, nor ought they. The Pro., $ 1674, seems to have overlooked the very pur
tendency of modern thought is the other way. The pose of recording a notice of the pendency of an ac
right of appeal is as sacred as the right to prosecute or tion. By an old rule or priuciple still in force, the
defend, and every law which restricts that right is an purchaser of a thing in action, with knowledge of the
interference with freedom of personal conduct. The litigation, is bound by the judgment as though he
restrictions at present existing are, to the extent that were a party to the suit. A lis pendens is but notice
they restrict, usurpations. It would be useless to quarof the litigation, furnishing conclusive judicial pre
rel with them now, for they have been so long a part sumption of knowledge of the suit in all persons deal
of our jurisprudence that most of us have forgotten to ing with the subject of the controversy, subsequently
murmur against their injustice; but any further limi. to its being recorded. After judgment, if an appeal
tation of the right to appeal from an unjust or unlawbe taken, the same suit continues, the matter is still
ful decision of a court will never be consented to, and
never should be. the subject of the same litigation, knowledge of which would biud a purchaser, though the record notice of
The obvious remedy for the evil lacks one essential its pendency have been cancelled. Why not then
element of popularity. It is not complex, has no incontinue such record notice until the right of appeal commend it to Solon, nor extort the admiration of
tricate and occult machinery. Its simplicity does not has expired ? Not until then can it be said that that litigation has really been ended. The cancellation
Lycurgus. Any plain man can see that seven more would not relieve a purchaser from the obligation of judges and two divisions of the court must at once the final judgment rendered after the appeal if he had
clear the calendar, but the scheme is not adopted beknowledge of the suit. The cancellation itself might
cause the wayfaring man might invent it. Besides it
would require a constitutional amendment. What of furnish that knowledge if the purchaser examined the record. As the recording of a lis pendens is a substi
that? A great many of our most precious institutions tute for giving personal notice of a suit pending and
could never have existed without change in the fwi
damental law. The objection is fatuous. It has been of its subject-matter, the final determination of which can be found in the same records by a person con
made a great many times. John made it when the templating purchase, and so interested in knowing the
barons demanded llagna Charta. ('onstitutions must result of the litigation, it would seem that there is no
change whenever the necessity for change arises. ('on
stitutions do not make the greatness of a people, peoneed of any provision for the formal cancellation of the record notice; and that section 1674 might better ple make Constitutions great. be repealed than amended in the particular suggested
Would fourteen judges and two divisions of the
court relieve suitors and the court itself? If so, tho by your correspondent. If it were so amended there would be need of further provisions allowing a new
question should be considered res ar juicatu. It will record notice, upon perfecting appeal, that by the ap
be easy to establish such a court, and easy for the peal the matter was still in controversy.
court to transact our business for us. The two divis
ions appear to be the bête noir of those who believe the Yours truly, LIS PENDENS.
country must go to the devil, is time honored customs ELMIRA, N. Y., Jarch 7, 1885.
are abolished. Men say they do not like a two-headed court. Why not? We have one already which has
existed nearly forty years. Our General Term is a RELIEF OF THE COURT OF APPEALS.
hydra, but no great harm has resulted. ('onflicting Editor of the Albany Law Journal:
rules of law and practice have preraile:l for a time, but One of your correspondents is almost ready to des- uniformity has finally been secured by decisions of pair of the republic, because the (ourt of Appeals is two the court of last resort; and even this fault would not Fears behind in its work. The facts and statistics which inhere in a proper organization of that court with be presents are sufficiently startling, and would provoke fourteen judges and two branches. A principle once immediate action if we had not become familiar with established by either bench necessarily becomes law them froin long experience. We have grown accus unto the other, as well as itself, "and the rest of mantomed to the law's delay. The conserratism of the bar kind,'' and either division must be supernaturally inhas restrained agitation, and obvious considerations genious to distinguish more shrewdly than does the influence the judges against initiating discussion. But present court between a former decision and the case the time has now come when suitors, who are more at bar. Only one possibility of conflict could exist, interested in the matter than aro lawyers or courts, and that could easily be avoided. If the improbable ought no longer to submit to such postponement of case should arise of the identical question coming judicial action as amounts substantially in many before both branches simultaneously, both would cases to denial of justice.
unite in hearing argument and deciding. Your correspondent's statement of the present con Such a court would be elastic enough for all times. dition of the court may be accepted as the basis of a When the business shall have become so great that two plan for its relief, and what is of higher moment, the dirisions are unequal to its performance a third divisrelief of people whose rights of person and property ion may be created and so on indefinitely. The sgsare in abeyance. He might have gone much further tem would endure beyond the period when Macaulay's howerer without enumerating all the reasons which New Zealander shall appear on London Bridge, and suggest the necessity for prompt and radical change in would not encroach on the natural rights of the peo. the Constitution of the court. Tho State of New York ple, who make c'onstitutions and laws, and for whose is not Rhode Island. We must provide judicial force benefit ('onstitutions and laws exist. Something akin adequate to the transaction of our judicial business. to this plan must be adopted, or the right of appeal
must be arbitrarily limited. The relief resulting from meaning which survives in the common phrase "withsuch limitation would necessarily be temporary, fol out let or hindrance." Prevent” used to mean to lowed by further and still further limitations in the go before, for the purpose of preparing the way, or asluture, until the advocates of the system must eventu- sisting; its modern signification is precisely the really adopt the logic of Sir Boyle Roche concerning the verse. It is an unprofitable task to attempt to confine preservation of the liberties of his country.
the meaning of any active word within the limits preE. M. M.
scribed by its origin; enlightened usage is the sole CANANDAIGUA, N. Y., March 5, 1885.
foundation of authority in such matters; and the
words “enjoin ” and “injunction," in the sense to “ ENJOIN."
which Mr. Tucker objects, have long held too firm a Editor of the Albany Law Journal:
place in the literature of our profession to be now disKindly permit me to state a few reasons for dissent turbed by any philological fauciers. ing from your conclusion (Alb. L. J., March 7, p. 181)
Yours very truly, that “Mr. Tucker is unquestionably right” in accusing
A. V. S. our profession of perverting the meaning of the word
NEW YORK, March 9, 1885. enjoined.”
1st. Neither the verb “to enjoin” nor its substantive “injunction” is exclusively used, even in legal
NEID BOOKS AND NEW EDITIONS. phraseology, in the sense of prohibition. Justice Story,
FIFTEENTH BRADWELL'S REPORTS. following Eden and Jeremy, defines injunction as а judicial process, whereby a party is required to do a We have frequently had occasion to commend this particular thing, or to refrain from doing a particular series. Except in Illinois, New York and New Jersey thing, according to the exigency of the writ.” Eq. we believe there is no official reporting of the decisions Jur., $ 861. That the latter signification has obtained
of the intermediate courts of the whole State. The the greater prevalence is due to obvious circumstances work in this series is faithfully and intelligently done, and exemplifies an ordinary tendency to linguistic ex
and the cases are pretty sure to be important and inpression.
teresting, because they are all reversals. We note in 20. In English, as in German and cognate languages,
this volume Ilolmes v. Nooe, p. 164, holding that under we find verbs compounded with prepositions, either the Civil Damage Act exeni plary damages may be separable or inseparable. Such words as “forbid” awarded only when aggravating circumstances are and
gainsay ” are examples of the latter; but the shown, which is in harmony with the holding of our former are of far more frequent use. In some cases
Supreme Court in Rawlins v. l’idvard, 30 Alb. L. J. these separable prepositions are invariable; as, e. (J.,
424; see also Neu v. Me Kechnie, 95 N. Y. 632; S. C., 47 that of the verb “to refrain from," where the preposi- Am. Rep. 89. tion “from” is the only one admissible; in others the preposition is indefinitely variable, and constitutes the
COURT OF APPEALS DECISIONS. element on which the meaning of the verb depends.
IE ; yet we
day, March 10, 1885 : sary to distinguish the preterite forms, in which the Judgmemt affirmed with costs—John Ackey, expreposition is omitted; we get the sense of the connec ecutor, appellant, v. Franklin J. Parmenter, respondtion. We ask, “Did he go to court? or “Did he go
ent. — Order of General Term reversed ; that of surfrom court?” aud the auswer to either question is, rogate affirmed with costs. Opinion by Ruger, C. J.“He went (without the preposition). In liko man In re Accounting, of Executors of William Tilden. ner, the sense of the verb “to enjoin ” depends alto -Order reversed with costs-In re Opening of Flushgether on the connected preposition-“to” or “from" ing Avenue, etc. — -Order affirmed with costs-Peo-expressed or understood with it. If for the sake of ple ex rel. James R. Jessup v. John Kelly and others, distinction in the latter case we are to employ the commissioners, etc.; Frank 1). C'rim, executor, reclassic and elegant term “injuncted,” similar consid-spondent, v. Rufus G. Starkweather, impleaded, eto., erations will require us in the former to adopt some appollants; In re Petition of New York, Lake Erie such form as ho “goed.” Tho instances are precisely and Western Railroad to appraise lands of Bennett, parallel.
eto. ; In re Altering, etc., Main street in Sing Sing; If there were really a necessity for any change, the Louis Wagner v. John fIodgo and others. — Appea) good words " restrain ” and “prohibition,'' already in dismissed with costs-People v. Globe Mutual Life common legal uso, would furnish adequate equivalents Ins. Co.; In re Claims of Lykes and others; Reuben for “enjoin” and “injunction” without resorting to Ilall, appellant, v. ('ity of Buffalo, respondent. —Moany such barbarous expedient as Mr. Tucker sug tion to put on calendar denied on account of insuffigests.
ciency of papers, without costs—Chas. F. Holley, re3d. Separable prepositions are frequently omitted, spondent, v. Metropolitan Life Ius. Co., appellant.even when they would seem to be necessary to convoy Motion to prefer cause granted, without costs—People the meaning of the writer. For instance, in the clos ex rel. Edward J. Wood, appellant, v. E. Henry Laing sentence of the paragraph immediately preceding comb, respondent; People ex rel. Mason v. McClave. that which has prompted this letter, you say, “Re - Motion to restore cause granted, without costsforms aro rarely accomplished by riding rough-shod Franklin M. Miner, administrator, etc., v. City of Bufover the rights of the minority, a tendency to be falo. —Motion to open default denied, $10 costsguarded sedulously in a republic." The connection Keuka Nav. ('0. v. Jane Holmes. —Motion to dismiss clearly shows that your idea was that the tendency re-appeal granted, with costs to the respondents repreferred to was to bo sedulously guarded against; but sented on the argument in this court by Mr. Chandler Mr. Tucker would doubtless assert that “of course the and without costs to any other party-Samuel Weeks writer of the paragraph intended that his words should and another, appellants, V. Jacob Weeks Cornwell, mean the precise opposite” of what he said or wrote. respondent. Motion to dismiss granted, unless
4th. The English is a living and progressive language within thirty days the appellant files an undertaking aud old words are constantly taking on new meanings and pays the costs of this motion-Sarah E. Nichols, Two centuries ago, for example, the verb “10 let,” administratrix, respondeut, v. Charles F. McLean, apnow signifying to allow, meaus to hinder or obstruct; a pellant.
opposite processes and fremme for example, indicate T & following decisions were handed down Tues
Ioriminals and political cases.
tion of the record show it to be dependent upon The Albany Law Journal.
a judge-made record. I was thinking of advocat
ing in our journal a proper criticism of the court ALBANY, MARCII 21, 1885.
for the benefit of bar, bench and Legislature. If not trespassing too much upon your time I would
like to know what course your journal pursues, and CURRENT TOPICS.
what you think of the propriety and utility of such
a scheme.” We think that criticism of judicial is proposed in Norway to adopt trial by jury in
decisions is one of the most important offices of a But the Norwe
law journal. We do not think however that degians, probably having read Mr. IIopkins' amusing feated attorneys ought to rush into print and critisarcasms in this journal on the system, are seeking cise the courts in their own cases. They are not for an oracular opinion on this vexed topic. competent judges of the merits of their own cases. Mr. Nicolai Grevstad, of Minnesota, sends us a
We have no "dumb reverence" for our courts. If communication on the subject, in which he says:
their decisions do not commend themselves to our “But numerous reports of conflicting opinions as
judgment we never hesitate to say so, and our colto the working of the jury system in the United States being circulated in Europe, the Norwegian ested criticism.
are always open to temperate and disinter
Occasionally we even let in a people are cast somewhat into confusion as to what smarting attorney to "swear at the court,” but we to believe. The undersigned therefore, at the request generally do it, as the Spartans made their slaves of leading Norwegian statesmen, who take a most drunk, for a warning to the children. The Enprominent part in the present work of law reform glish law journals are admirable examples in this in Norway, in order to prepare a report of as au
matter. Their fearless and frequently severe critithentic value as possible, takes the liberty to re
cism of the decisions and conduct of the judges quest your opinion on the system of trial by jury, undoubtedly does much toward rendering that juas outlined above." And he subjoins an exhaustive
dicial system tolerant and tolerable. The course list of questions, with blanks for answers. We
of Mr. Justice Manisty in the late Coleridge-Adams gave trial by jury a high character in our answers,
trial is a fresh example. After all, thic bar need but we feel bound to say that we forgot all about
feel no great delicacy or reverence in this respect, the "emotional insanity" business, on which we
for the courts are overruling themselves and one commented last week, and we now call Mr. Grev another almost every day. stad's attention to those comments. Perhaps the matter will be of less practical importance in the frigid clime of Norway, where, we take it, adultery Georgia Bar Association, held at Atlanta last Au
The report of the first annual meeting of the and seduction are of much less frequent occurrence than in this country. But at all events we feel that gust, contains much of interest on the subject of candor dictates this qualification.
judicial reform. The chairman of the committee on that subject, Judge Bleckley, observed in his
report: “In the administration of justice there Although as we pointed out last weck, crime ought to be correctness, celerity and cheapness. seems decreasing in Great Britain, it cannot be said The second alone is the topic of this report. Time that this is due to capital punishment. An ex is the increasing factor — the growing element of change says: “The average number of executions modern life. Progress is the realization, in short during the last twenty years has been less than time, of what formerly occupied long time. At
During that time there have been least this is one form of progress, and that form 494 persons condemned to death, of whom 249 were with which we of the nineteenth century are in imexecuted and 18 sent to Broadmoor as insane. So mediate contact - a century that if measured by that roughly speaking, one-half only of those con results in some of the spheres of human activity, demned are, in the result, executed. The largest might well count for a thousand years. IIow is it number hanged in one year was 22, which hap- with practical remedial jurisprudence ? Is it up pened twice — that is, in the years 1876 and 1877, with, or is it behind the age ? Compare it with and the smallest number was 4, in 1871." This is other business, public or private; with operations in striking contrast with the facts in this country, of the war department, the navy, the treasury, the where crime is frightfully increasing and execu post-office, the interior; with commerce, manufactions are ten times more frequent than in Great tures, banking, transportation, mining, farming; Britain.
with the venerable and conservative rocations of
teaching and preaching; with any thing, and what A correspondent writes us: “I write to ask your is its relative position ? The main bulk of worldopinion about the advisability and utility of a work is ahead of it; several branches of that work, proper review and criticism by a State law journal for instance, the postal service, general transportaof the decisions of the Supreme Court of that tion, commerce and manufactures, are so far in adState. In this State we never do such a thing, our vance that the law seems to crawl whilst they go reverence keeping us dumb, though the decision of on wings. Is this relative backwardness a necesthe court may be judge-made law, and the quota- sary condition, rooted in the nature of things, or is
Voi, 31 - No. 12.
13 a year.
it attributable to deficient energy and enterprise most liberal compensation is meted out in the States on the part of the legal profession? Can it be pos- of New Jersey, Pennsylvania, New York, Massasible the law is to become obsolete; that the ages chusetts, California, Missouri, Wisconsin, Illinois are to outgrow it; and that though suffi cing for the and Louisiana.” We print the table in another past, it is not equal to the demands of the future ? column. To the salaries of our own judges should Will it be Bradstreeted as a failure ? Surely this be added a certain allowance for expenses, $1,200 supposition cannot be entertained.
And if not,
a year, we believe, and the fact should be noted the conclusion is imminent that either directly or that in the city of New York the judges get $15,000 indirectly, we lawyers are responsible for the wide
a year. chasm that separates the effective administration of the law from those industries, public and private, Mr. Tucker's comments on the legal use of the with which it ought to be abreast. Is it fit that a verb “enjoin ” have called out considerable discusbody of men so numerous, so cultivated, so capa- sion. Our correspondents think Mr. Tucker wrong. ble, should suffer their quota of labor, their distinc- But they do not convert us. There is no doubt tive calling, to remain hopelessly behind ? Let a that the best legal writers, such as Kent and Story, noble, manly pride answer in the negative.” Judge use the word in the sense criticised by Mr. Tucker. Bleckley's plan for the collection of notes, and the Webster gives this sense of the word, and cites like, is that the judgment shall be dispensed with, Kent. It is significant however that Worcester and that “the original writing shall be registered, does not give it. There is no doubt too that in filed and remain in the clerk's office, and that an the course of time certain words have come to have execution founded upon it be issued by the clerk, just the contrary of their original meaning; “let” and enforced by the sheriff. What would warrant is a familiar example. But what Mr. Tucker coma judginent on mere inspection is intrinsically as plains of is that the same word is used to mean worthy of confidence without a judgment as with two exactly opposite things — to do and not to do. it. Relatively to the execution, it at last, is the This verbal blowing hot and cold in the same real producer, and the judgment a superfluous breath is certainly indefensible. It is “overworkmiddle-man.” We regard this scheme as impolitic. | ing" the verb - to quote Rufus Choate. We have Suppose that the note is forged, or that the consid- plenty of good words to express the desired meaneration has failed, or that there are offsets, or that ing—“prohibit, restrain," “ forbid.” There is it has been paid — what then ? Our system in this no need of corrupting and vulgarizing the language State is a fair and eflicient one. The discussion on by this double and ambiguous use. When we Judge Bleckley's report was very interesting. The want to prohibit the ringing of bells, for example, judge defended his proposition with all his wit and let us not say it is “enjoined,” i. e., commanded; vigor, but the matter was postponed to the next nor worse yet, “enjoined and forbidden,” i. e., meeting. One reason advanced against such sum both commanded and prohibited; but let us say just mary proceeding was the fact that “we make our what we mean in the correct use of the language, obligations, generally, payable in the fall when our forbidden and prohibited. We are no purist nor crops are gathered
can pay, provided “philogical fancier,” but we think that this use of there has been no worm or drought. If there has the word “enjoin ” is radically wrong. We do not been, we cannot pay. If there has been some mis- understand Mr. Tucker as advocating the use of fortune to us we want the delay of another year, and “injuncted;” only a careless reading of his obyou may sue us at the spring term following, and servations could lead to such an inference. His get judgment at the following term.” But it seems remarks on that coinage were only a sarcasm. to us that the inability to pay is no reason against the right to a judicial determination that the debt is just, is due, and must be paid as soon
NOTES OF CASES. drought and worm let up.
IN IIenson v. State, 62 MA. 231, it was held that The addres of Mr. Jones on the salaries of the bench is also full of interest. He says: “Upon a
He says: “Upon a for keeping a bawdy-house, evidence of the general careful tabulation of the statistics I find that the reputation of the house is incompetent. The court sum of $4,221 represents the average salary paid by said: “Counsel on both sides have with commendthe States of this Union to a chief justice of the able diligence collected in their briefs all the auSupreme Court or Court of Appeals — that the thorities bearing upon the subject, and they cersum of $1,100 is the average salary paid to associ- tainly present much conflict and diversity of judiate justices of the Supreme Court or Court of Ap- cial opinion and decision. They consist altogether peals; and that the average salary paid to circuit of cases decided by the courts in this country,
and judges amounts to the sum of $3,158.
of the conclusions drawn therefrom by our own With the exception of the States of Virginia, West American text-writers. No English decision is reVirginia and Oregon, there is no Commonwealth in ferred to, and we are not aware that the question this Union which does not pay to its circuit judges has ever been decided by an English court; and in larger salaries than those accorded in Georgia. The considering the question as it arises in this State