DIGEST OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF RHODE ISLAND.*

COMMON CARRIERS.

1. The defendants, an express company in New York, received from the plaintiffs, April 10, 1861, certain goods to be sent to one C., at Rome, Georgia, and gave a receipt specifying that they were to be sent to the defendants' agency nearest their destination. They arrived at Savannah, Georgia, about the last of April when they were taken possession of by an officer of the (so-called) confederate government and placed in a bonded warehouse, and subsequently sold for non-payment of duties levied on them, after C. had been notified that they would be sold unless he paid the duties. Held, that the defendants had been deprived of the goods by the acts of public enemies, and consequently were not liable to the plaintiffs for their value. Salisbury v. Harnden Express Company.

2. Civil war defined and the beginning of the late rebellion determined. Ib.

3. The burden of proof is on a common carrier, after a loss is shown, to show that it was by one of the excepted perils for which carriers are not liable. The plaintiff may then show that the loss might have been avoided by reasonable skill and attention, but the burden of proof is on him to establish the negligence. Ib.

CONSTITUTIONAL LAW.

1. It is competent for the public, by a resolution of the general assembly, to allow an appeal to be taken against itself out of due time. State v. Dexter.

2. A resolution of the general assembly allowing an appeal to be taken from the doings of a town council laying out a highway, after the time allowed by the statute for taking the same has expired, is not an infringement of private rights in a case where no damages for the layout were awarded to any person except the appellant, and, there being no private right to be impaired by the appeal, it is competent for the general assembly to consent to it on behalf of the public, and such a resolution is not unconstitutional. Ib.

CRIMINAL PROCEEDINGS.

1. In any indictment, or other criminal proceeding, where there is more than one defendant, all the defendants taken collectively, and not individually, are entitled to challenge peremptorily one juror out of every six that are called for the trial of the cause. State v. Sutton and another.

2. The master and mate of a steamer were jointly indicted for manslaughter caused by a collision. It was in evidence that they were both in the pilot house before and at the time of the collision.

Held, that a motion to direct the jury to return a verdict of not guilty as to the mate, because he was subject to the orders of the master and must be presumed to have acted under his orders, was properly refused, as the commands of the master would not justify the mate in the commission of a criminal offense, or in keeping the vessel on a course that endangered life. Ib.

CRIMES AND PUNISHMENTS.

1. An indictment against S. charged that willfully and unlawfully he did have in his possession, with intent to sell and exchange, and did offer for sale and

*From Mr. John F. Tobey, Beporter, and to appear in Vol. X, Rhode Island Reports.

exchange certain adulterated milk, to which water and other foreign substances had been added.

Held, that evidence of the possession of such adulterated milk by a servant of S., with intent to sell or exchange the same, was not sufficient to convict S. without other proof that the servant in so having said milk was acting for and in accordance with the will of his master, the said S. State v. Smith.

2. Evidence of a guilty intent and a guilty knowledge on the part of S. held not necessary to warrant a conviction, the intent of the act being that the seller of milk shall take upon himself the risk of knowing that the article he offers for sale is not adulterated. Ib.

EVIDENCE.

The testimony of a married woman that her husband did not leave her at any time with the magistrate when she acknowledged a mortgage deed, and that of the magistrate that the door to the next room, where the husband was, not being shut, he cannot testify that he was not within sight of his wife when she gave her acknowledgment, held, inadmissible to impeach the certificate of acknowledgment, which stated that she was examined privily and apart from her husband, in the absence of the proof of fraud on the part of the mortgagor or of the magistrate. Kavanagh v. Day and others. See Common Carriers, 3; Crimes and Punishments; Execution.

EXECUTION.

Where the land of one person is transferred to another under an execution, it must appear from the officer's return that he has proceeded according to the statute, and if it does not so appear the defect cannot be supplied by evidence aliunde. Wilcox v. Emerson.

FRAUD AND UNDUE INFLUENCE.

A conveyance obtained by one person from another, where advantage is taken of the latter's weakness or clouded or enfeebled faculties, will not be sustained by a court of equity. But it is not sufficient to suggest mere weakness or indiscretion of the party conveying, but it must be shown that there was fraud in the party contracting, or some undue means made use of to control that weakness. Anthony v. Hutchins. HIGHWAY. See Constitutional Law, 2; Husband and Wife; Toun.

HUSBAND AND WIFE.

1. A husband of a woman who has had children by her, has an estate in her land which entitles him to compensation during her life if her land is taken or condemned by a town council for a highway, and also to an appeal after her death from the doings of the town council in taking or condemning her land, if aggrieved thereby. Ross v. Town Council of North Providence.

2. The children and heirs at law of a woman whose land has been so taken or condemned and who dies before the expiration of the time allowed for an appeal, may appeal from the doings of the town council in respect of the land so taken or condemned, by virtue of chap. 176, § 15, of the Revised Statutes. Whether the right would not survive to them independently of the said statute, quære. Ib.

LAW OF BURIAL.

1. The Roman, Canon and English Ecclesiastical Law, stated. Pierce and wife v. Proprietors of Swan Point Cemetery and others.

2. Held, that while a dead body is not property in

the strict sense of the common law, it is a quasi property, over which the relatives of the deceased have rights which the courts will protect. Ib.

3. Held, that the persons having charge of a dead body hold it as a trust which a court of equity will regulate. Ib.

LEASE.

1. W. leased by instrument in writing certain premises to D. to hold for as long a time as a certain building then standing on the lessor's land next adjoining should remain in the same location, D. paying rent therefor half yearly. W. did not acknowledge the lease, and he afterward conveyed the demised premises to the plaintiffs.

Held, that the lease, inasmuch as it purported to pass an estate for a term exceeding one year, was not valid for the time therein named as between the plaintiff's and said D. on account of its not having been acknowledged as required by chap. 146 of the Revised Statutes. Thurber and others v. Dwyer.

2. Held, further, that although void as to the duration of the time thereof, it nevertheless regulated the terms of the tenancy in other respects, and made it a holding from year to year, which might be terminated by giving notice in writing at least three months prior to the expiring of the occupation year, as provided by chapter 205 of the statutes. Ib.

LIEN.

1. A tradesman's lien is not a general lien for balance of account, but a specific lien upon the identical property upon which labor or expense is bestowed, and only gives him a right to retain the property in his possession until the charges for the work and expenses upon the identical property are paid. Moulton et al. v. Greene & Sons.

2. W. & S. mortgaged two carriages to the plaintiffs and after the execution of the mortgage retained them in their possession and used them in their business. They afterward sent them for repairs to the defendants, who had claims against W. & S. for repairs on other carriages.

Held, that the mortgagees might reclaim them of the defendants upon the payment of the latter's charges for repairs done to them, and that the defendants had no lien thereon for repairs done to other carriages of W. & S. Ib.

3. Whether in this State the vendor of land has a lien upon the land sold after conveyance thereof, for the unpaid purchase-money, is doubtful. At all events there may be a waiver of the lien by the vendor either express or implied, and it will be considered as waived whenever any security is taken beyond the personal obligation of the vendor, unless there is an express agreement or proviso that the lien shall be retained. Perry and others v. Grant & Clark.

MORTGAGE.

A mortgage by deed under seal which recognizes notes which have been taken up by the mortgagee as notes which are over-due and unpaid and which the mortgagor is bound to pay, must be upheld both in law and equity. Lonsdale v. Fairbrother.

NATIONAL BANKRUPT ACT.

1. Under the provisions of the National Bankrupt Act a claimant may present to the assignee of the bankrupt a claim arising from a debt created by fraud and receive his dividend, but cannot prosecute it until the question of discharge is determined, but thereafter,

whether the bankrupt is discharged or not, it remains a valid claim against him, recoverable by any proper form of suit. Stokes & Leonard v. Mason.

2. The word debt as used in the act held to be synonymous with claim, and to embrace claims arising from debts created by fraud. Ib.

3. Plaintiffs brought trover against defendant for converting to his own use certain goods and chattels belonging to the plaintiffs. Defendant pleaded that he had obtained a discharge in bankruptcy and that plaintiffs' said claim was provable and proved under the proceedings in bankruptcy, and that they had received a dividend thereon. Plaintiffs replied precludi non because the claim for recovery of which said action was brought was created by the fraud and embezzlement of the defendant.

Held, a good replication, and that defendant's demurrer to it must be overruled. Ib.

NEGLIGENCE.

Plaintiffs stored certain carriages in defendants' barn and paid storage. The carriages were injured by the falling in of the roof of the barn overloaded with snow.

Held, that defendants were bound to furnish a building which was reasonably safe for such storage, and were liable if it proved to be unsafe, unless the defect was one which they did not know of, and could not have discovered by the use of ordinary care. Moulton

& Remington v. Phillips & Sheldon.

NUISANCE. See Railroad.

PARTITION.

1. R. filed a bill in equity to have a third part of an estate set off to her. An order of partition was made directing that the estate be first divided into third parts and one of these set off to the complainant and those holding with her, and then a third part of this third part be set off to the complainant.

Held, that it was her right and the proper construction of the decree to have her third set off by itself in one tract, there being nothing to show that it was necessary to assign her a portion of different tracts of land. Richardson v. Armington and others.

2. Held, further, that it was not necessary to assign to each share an equal number of square feet, each party being entitled simply to his proportional share according to the value. Ib.

3. Held, further, that a partition in which many of the lots adjoined no public ways, and to which the commissioners had assigned no private ways, was objectionable and would not be sanctioned by the court. Ib.

POWERS.

B. conveyed certain real estate to C. S. B., "his heirs and assigns," to hold to him, "his heirs and assigns," upon certain trusts; among others "upon further trust, from time to time, as and when the said trustees shall deem it expedient, to sell or mortgage the whole or any part of said trust premises, to lay out and invest the moneys to arise from any sale or mortgage, under the preceding powers, in the name of the said trustees, in good stocks, or mortgages of real estate, or in the erection of suitable buildings on the premises belonging to said trust or on some part thereof, and, from time to time, to change, alter and vary such investments for others of a like nature, at his discretion."

Held, re-affirming a former opinion in the same case, that the power of sale and reinvestment given C. S. B. by the above clause, was a special discretionary power,

and that it did not devolve upon a new trustee appointed by the court. Bailey, Trustee, et al. v. Burgess et al.

RAILROAD.

Where the charter of a railroad corporation requires it, if their road shall cross any highway, so to construct the same as not to impede and obstruct the safe and convenient use of said highway, and empowers them to raise or lower said highway, so that the railroad, if necessary, may conveniently pass under or over it, the crossing by it of a highway at the same level is not, in itself, a nuisance to the highway nor evidence of a nuisance. A court of equity will restrain said railroad corporation by injunction from such a crossing, only when it unreasonably impedes or obstructs the safe and convenient use of the highway. Town Council of Johnston v. Providence & Springfield Railroad Co.

TENDER.

1. A decree had been entered that a sale of land from I. to S. should be rescinded, in case S. should fail, neglect or refuse to pay a certain amount to L. within a certain time. Held, that when S. went to the residence of L. on the last day of the time so limited, for the purpose of paying said sum, and found that L. had left the State, and no one was there authorized to receive the money, there was no failure, neglect or refusal on the part of S. to pay it, within the meaning of the decree. Lawrence v. Staigg.

2. Held, further, that a readiness on the part of S. to pay the required sum in national bank notes, was not a readiness to make the payment required by the terms of the decree. Ib.

3. S., with his counsel G., went to a bank on the last day so limited and presented a check, and G. requested the teller to give him the money in legal tender, meaning, as he afterward deposed, greenbacks, so called, or United States national bank notes, and, as he afterward stated, believed the request was complied with. S. and G. went with the money so received to the house of L., then out of the State, and tendered the money to his son I., who refused to receive it, saying he was not authorized to act for his father. I. deposed that he remarked it seemed to him that if they wished to make a valid tender it should be gold, and that G. replied that bank notes were good enough for him. The affidavit of the teller who cashed the check was not produced. Held, that the burden of proof being on the defendant, he had not satisfied the court that he had offered legal tender notes. Ib.

TOWN.

A town is not ordinarily bound to fence its roads, and where a highway connected with a private way, and there was a defect in the private way some 50 to 100 feet from the junction of the two ways, it was held, that the town was not liable for an accident happening to one who drove off by mistake upon the private way and was injured by reason of such defect, although there was no fence or other mark to show the deviation of the private way. Chapman v. Town Treasurer of Cumberland.

TRUSTS AND TRUSTEES.

1. S. held certain real estate upon trust under the will of H. to pay the rents and profits to W. during his life-time, and to convey it in fee simple to his children after his decease. W., during his life, assigned to S., for the benefit of his creditors, a building on said premises, not subject to the trusts of the will. It was afterward destroyed by fire, and S. built another in its

place. Held, that S. could not charge the estate with the money expended in building the same, but might remove it from the trust estate before conveying the latter to the children of W. Williams and another v. Smith.

2. Held, further, that S., who had, during the lifetime of W., made advances out of his own moneys for the support of W.'s infant child, should be allowed the benefit of a charge for the same upon the trust estate, it appearing that, under the circumstances of the case, the court would have permitted the charge if its sanction had been previously requested. Ib.

3. Held, further, that S. was entitled to be allowed out of the trust estate a claim for moneys paid to counsel employed to procure authority to sell a portion of the trust estate to raise the means for making improvements thereon and paying debts. Ib.

4. Complainants and defendant formed a partnership to set up a flour mill in W. and bought machinery for it. The project was afterward abandoned, and it was agreed that defendant should take the property at cost, provided he should use it in business in W. He gave up entering into business and sold the property, and rendered an account accounting for a sale of an engine and boiler at $4,000, whereas it appeared that he sold them to one P., with the understanding that P. should resell them and divide the profits with him, and P. afterward sold them for $5,250 and divided the profits. Held, that defendant held said property as trustee and agent of the complainants, and must account for the profits made on such sale. Matthewson et al. v. Allen.

5. L. and his wife P. agreed to a separation, and L. conveyed by deed certain real estate to one B. in trust for said P., her heirs, executors, administrators and assigns, and for her and their use and behoof forever. P. made a will in 1864, giving this property to her daughter H., and directing said trustee to convey to her. P. died in 1868, and B., in 1869, conveyed the real estate back to L. Held, that the trust must be considered as executed in the next taker after the death of P. to wit, H., and that the deed from B., the trustee, to L., conveyed nothing to the said L. Luther v. Haile.

BANKRUPTCY LAW.

NOTES OF RECENT DECISIONS.

DISMISSING PROCEEDINGS BY CONSENT.

1. Where the stockholders of a bankrupt railroad company purchase in good faith all the outstanding floating indebtedness of the company, except a few minor claims, and all the creditors, except those representing these few claims, desire such a result, they should be allowed to have the bankruptcy proceedings dismissed, on giving proper security for the payment of the objecting creditors. In re Indianapolis, Cincinnati & Lafayette R. R. Co., U. S. C. C., 8 N. B. R. 302. 2. It being evidently for the best interests of all parties, and the desire of a large majority, that the corporation be managed in the customary manner, the bankrupt court will not retain the custody and control of its property, to assist minor creditors in coercing their claims. Ib.

3. A bankrupt court has full equitable discretion, and can allow a case to be withdrawn, provided it is done without prejudice to the interests of any party. Ib.

4. The proper practice in such case is to require the deposit of adequate security for the payment of the claims of the non-assenting creditors, to remain until any contingency about them is ultimately settled by the highest court to which a case can be taken; the claims to be prosecuted with reasonable diligence. Ib.

FIDUCIARY CAPACITY.

1. Money collected by an agent under an agreement to account and pay over the proceeds monthly to his principal, is not a debt created in a “fiduciary character "within the meaning of the bankrupt act. Grover & Baker v. Clinton, U. S. C. C., W. D. of Wis., 8 N. B. R. 112.

2. A bankrupt is not liable to arrest on such a debt, and it is discharged in bankruptcy. Ib.

3. The words "fiduciary character," in the act of 1867, are essentially the same as "any other fiduciary character," in the act of 1841. Ib.

4. Decisions under the bankrupt act of 1841, considered and approved. In re Kimball, disapproved. Ib. 5. It seems that when an agent is to account monthly with his principal, a court might infer that the agent was allowed to mingle the money collected with his other funds, and to consider himself an absolute debtor for that amount, and if authority so to do may be implied from the course of dealing, the agent would be exempted from liability for a conversion of the money. Ib.

FRAUDULENT SALE.

1. Where the intent of the bankrupt, in making sale of his goods, was to carry on his business to pay his maturing obligations, such sale cannot be set aside, even though made, to one knowing of his insolvency, at a price below cost. Sedgwick, assignee, v. Lynch, U. S. C. C., S. D. of N. Y., 8 N. B. R. 289.

2. The fraudulent intent on the part of the sellers is, in every case, an essential requisite to establish the invalidity of a transfer of property. Ib.

LESSOR.

1. Contempt.-A lease to S. terminated by condition broken, after S. filed his petition in bankruptcy, and before the appointment of an assignee. The lessor, by summary proceedings in the State courts, evicted S. and took possession of the premises leased. On petition of S.'s assignee in bankruptcy, to require the lessor to restore possession or show cause why he should not be attached for contempt. In re Enoch Steadman, U. S. Dist. Ct., N. D. Ga., 8 N. B. R. 319.

2. Held, the possession of the bankrupt, after petition filed, is the possession of the bankrupt court, and any interference therewith, except by leave of that court, is in contempt of its authority. Ib.

3. Ordered, that lessor restore possession of the property leased within twenty days, or, in default, attachments absolute for contempt issue. Ib.

PRACTICE.

1. Neither the bankrupt law nor form sixty-one require that the answer to a creditor's petition, to entitle the debtor to demand and have a hearing by the court or a trial by jury, should be verified or even in writing. It is sufficient if he appears before the court and allege that the facts set forth are not true. In re Frank Heydette, U. S. Dist. Ct., E. D. Mich., 8 N. B. R. 322.

2. The better practice, however, is to put the whole answer in writing, and allege in express terms that the facts set forth in the petition are not true, and then conclude with a demand for a hearing by the court or

a trial by jury. It should be signed by the respondent in person or by attorney. Ib.

SURETY.

Suit was brought against defendants as sureties on the bond of a deceased collector of internal revenue. One of the defendants pleaded his discharge in bankruptcy in bar of the action, and the court held that, although this defendant was a surety to the government, he was discharged under the bankrupt act, and that the plea was good, this case not coming within the exceptions named in the act. The United States v. Throckmorton et al., U. S. C. C. Texas, 8 N. B. R. 309.

UNAUTHORIZED APPEARANCE.

1. Where a person authorized appears as an attorney for an individual or corporation, in answer to a rule to show cause, and waives important rights of the alleged bankrupt, as admitting the allegations of the petition, the proceedings in bankruptcy may be set aside upon the application of such alleged bankrupt. But this motion must be made within a reasonable time after notice thereof, or it will be held waived, and the authority of the attorney, by such silence, ratified. In re Republic Insurance Company, U. S. Dist. Ct., N. D. Ill., 8 N. B. R. 317.

2. Where stockholders of an insolvent insurance company, under the above circumstances, wait six months, until several hundred thousand dollars of assets have been collected and is ready for distribution, and they are themselves sued for their pro rata of unpaid stock. Held, they have been guilty of laches and will not be heard. Ib.

HOW TO RETURN AN ESCAPED CONVICT TO PRISON.

COURT OF APPEALS.

THOMAS HAGGERTY, plaintiff in error v. THE PEOPLE. Where one, convicted of a felony and sentenced to the State prison, escapes before the expiration of his term of imprisonment, he may be retaken at any time and confined under the authority of the original judgment until bis term of imprisonment has been accomplished; and no new award of execution is necessary or proper.

This was a writ of error to review a judgment of the supreme court, affirming a proceeding in the Albany sessions on returning the plaintiff in error to the Clinton State prison to serve out an unexpired term, on the ground that he had escaped from the prison.

At the Albany sessions, held on the 13th of March, 1872, the district attorney produced to the court an indictment of Haggerty in September, 1868, in the same court, for robbery in the first degree, with the minutes of his conviction for robbery in the second degree, and sentence to the Clinton prison for three years.

Haggerty was brought to the bar, whereupon the district attorney filed an information or suggestion alleging the indictment, conviction and sentence; that he was committed to the Clinton prison, and that, on the 14th of October, 1869, he escaped from the prison, and had ever since been at large. The information prayed that the court would order the execution of its former judgment, and that execution thereof might be awarded against Haggerty; and he be returned to the State prison at Clinton, there to be imprisoned for the remainder of the term for which he was sentenced to

be imprisoned as aforesaid, and for that portion of the said imprisonment he has not suffered, to wit: for the term of one year eleven months and four days.

These suggestions having been filed and entered of record by order of the court, Haggerty was asked if he had any thing to say why execution of the former sentence and judgment of the court should not be awarded against him. He stood mute, whereupon the court ordered the clerk to enter a plea or answer by him that he was not the person mentioned in the record, and, if so, that he did not escape, as alleged by the people, by their district attorney. The people, by their district attorney, replied, ore tenus, that he was the same person, and did escape as before alleged, and this the said district attorney was ready to verify.

A jury was then impaneled to try the issues thus presented, and a trial thereof had.

The district attorney produced a copy of the indictment, minute of the conviction and sentence, certified by the county clerk, as required by the Revised Statutes. (2 R. S. 739, § 10; 2 Edm. Stat. 763.) He then proved by McCotter, deputy sheriff at the time of Haggerty's conviction, that he was the person convicted, and that after his conviction, he conveyed him back to the jail.

The district attorney then produced and read in evidence the copy minutes of Haggerty's conviction on which he was committed to the prison, and proved by O'Brien, one of the keepers of the prison, that on the 14th of October, 1869, while Haggerty was in his gang, he and four others forcibly escaped from the prison, and that Haggerty had never been returned. No evidence was offered by Haggerty.

The court charged the jury, who returned a verdict "that the defendant, Thomas Haggerty, was indicted, tried, convicted, sentenced and committed to the State prison, under and pursuant to the sentence, as stated in the allegations of the people; also, that he escaped from said prison at the time and in the manner stated in the said allegations, and had ever since been and continued so at large."

The record then proceeds: "It is ordered, adjudged and determined by this court, that the execution of the said former judgment thereof be awarded against said Thomas Haggerty; that he be returned to said State prison at Clinton; there to be imprisoned and confined at hard labor, for the remainder of the term for which he was sentenced to be imprisoned as aforesaid, and for that portion of the said imprisonment he has not suffered, to wit: for the term of one year, eleven months and four days."

Haggerty thereupon sued out a writ of error to the supreme court, where the proceeding was affirmed, Mr. Justice Miller writing the opinion (6 Lans. 332), and he sued out a writ of error to this court.

Clute, for plaintiff in error.

N. C. Moak, district attorney, for defendants in error.

RAPALLO, J. The proceedings sought to be reviewed in this case were not authorized by any statute of this State, nor by any precedent to which we have been referred. The cases cited by the learned district attorney were all capital cases, where, at the time of the recapture of the prisoner, the time appointed for the execution had passed, and a new award of execution must be made by the court to render the original judgment effectual. King v. Ohey, 1 Lev. 61; Rat

cliffe's Case, 18 How. St. Tr. 430; Bland v. The State, 2 Ind. 608.

The mode of proceeding in cases where, for any reason, sentence of death is not executed at the time appointed, is now regulated in this State by statute (2 R. S. 659, §§ 23, 24; Laws of 1860, ch. 410, § 11; Laws of 1861, ch. 303; Laws of 1862, ch. 197, § 1), and the old common-law proceeding does not exist even in capital cases, excepting so far as it conforms to the statute. In cases where, before the expiration of a term of imprisonment, the prisoner escapes, no new award of execution is necessary or proper. The prisoner can be retaken at any time and confined under the authority of the original judgment until his term of imprisonment has been accomplished. If the wrong person should be taken, or if the prisoner's term has in fact expired, he can obtain relief by habeas corpus. The course of proceeding adopted in the present case may have been a judicious way of satisfying the officers of the identity of the party, but we think it was extra judicial, and would not conclude the prisoner on habeas corpus, neither is it reviewable on writ of error. The general term should have quashed the writ. The judgment of the general term should be reversed, and judgment rendered in the supreme court quashing the writ of error.

CORRESPONDENCE.

SHOULD THE JUDGES BE ELECTED OR APPOINTED? The article on this subject published in this Journal on the 12th of July last, was right in stating that the election in this State this fall is of more than usual importance, because of the submission now to the voters, of the question whether judges shall continue to be elected by the people, or shall, as formerly, be appointed by the governor. But I desire to offer some reasons for thinking that article not right in its conclusions in favor of reverting to the old method of appointment.

The election in Illinois of an inferior instead of a superior man for judge is said to be a warning illustration of the badness of the system of election. To this it may properly be answered, that perhaps, it is not yet certain that that election was, on the whole, bad; and also that, even if bad, it is an exception that can easily be matched by other bad judges who have been appointed. Numerous mistakes of this kind certainly have occurred under the appointive system.

It is alleged as a disadvantage of our present system, that an appointive judiciary is more likely to be learned and able; and the judiciary of Massachusetts is contrasted with that of this State, as proof of the allegation; and further it is alleged that, prior to 1846, when our judges were appointed, they were, with scarcely an exception, men who did great honor to the bench; and that the lawyers of New York city think the decadence of the profession began with the election of judges and their shortened term. For all of these opinions other reasons can be given than because they are correct.

The people elect the governor and senate, and what reason is there to suppose that the popular mind and will are more judicial and wise in making their elections than they are when acting directly on the election of judges? Probably, also, if all accounts are true, the governor and senators have no great accession of judicial intelligence or integrity by their assembling at Albany.