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ment reversed and judgment ordered declaring that
LEGAL NEWS. under the codicil the nephews and nieces each take $3,500, subject to debts, etc., with costs to each party A large number of rare English law books have been to be paid from the estate - Pierpont v. Patrick. — added to the library of the Chicago Law Institute. Judgment of Supreme Court and order of County
W. P. D. Bush, Esq., has been re-appointed reporter Judge reversed and proceedings dismissed - People ex
of the Court of Appeals of Kentucky. rel. Rogers v. Spencer, County Judge, etc.-- Judgment reversed and new trial granted with costs of the
The expenses of the Pennsylvania constitutional appeal to abide the final decision as to the costs of the
convention up to November 1, were $475,000, leaving action - Moore v. Metropolitan National Bank. $25,000 unexpended. Judgment of Supreme Court and proceedings of Court It is stated that at the commencement of the judicial Martial reversed - People ex rel. Garling v. Van Allen. career of Hon. Caleb Cushing he read sixty rolumes - Order modified pursuant to opinion of Judge
of Massachusetts reports in nineteen days, and that Folger; term of order to be settled by him without his average study and labor for years has been sevencosts to either party in the court - Merchants' Bank
teen hours a day. v. Thompson.
W. R. Adams, who was accused of the murder of
Judge Crawford and District Attorney Harris, in FOREIGN NOTES.
Franklin Parish, La., last September, has been disThe Social Science Congress will meet next year at charged by United States Commissioner Wells, the Glasgow, Scotland. — Business in the English com prosecution not being able to make a case against him. mon-law courts is said to be continually decreasing.
The First Comptroller of the United States treasury Professor James Bryce and Messrs. I. B. Gunning
has instructed the assistant treasurer at New York Moore, T. C. Holland, W. R. Kennedy, all of Lincoln's Inn, barristers at law, are each to deliver a lecture dur
"that the bankruptcy of an agent is a revocation ing the season of 1873-4, before the Incorporated Law
of the agency, but where, subsequent to the bankSociety of Liverpool. - Mr. Hawkins, on the sixth
ruptcy, the principal, with knowledge of the fact, inst., applied to the Queen's Bench for an extension of
appoints the bankrupt his agent, the latter may lawtime for further hearing in the case of the Tichborne
fully transact any business intrusted to him." claimant until November, 1874. The application was The United States marshal for the Western district granted. — The European Assurance Arbitration re of Texas, informs Attorney-General Williams that sumed its sittings on the 27th ult., in London, with Deputy Marshal John P. Freys, was assassinated on Lord Ramilly as arbitrater. There are nine law the 25th of October, by a man named MoUber, who lords sitting in the House of Lords, and in the House had been convicted of murder and sentenced to be of Commons, as near as can be ascertained, there are hanged, but made his escape from prison. This is the forty lawyers (chiefly barristers), representing various fifth deputy marshal assassinated in that district. constituencies. — At the recent Birmingham (Eng
The Department of Justice has attempted, during land) Quarter Sessions, the grand jury'made a presentment that the time has arrived when the functions of
the present year, in accordance with a resolution of grand juries in large towns and districts should cease.
Congress, to obtain full criminal returns for the Uni-Sir Alfred Shepherd, Chief Justice of New South
ted States. As no appropriation was made, such reWales, has retired from the bench. He was appointed
turns were dependent on the good will of judicial and judge of the Supreme Sourt in 1847, and chief justice
other officers. Mr. Falls, chief clerk of the departin 1844. The new Italian minister of justice has, it
ment, states that the returns of all inmates of penitenis said, completed his labors for the formation of a new
tiaries, their trials, sentence, nativity, education, etc., penal code, by which other punishments are substi
are completed; but as far as the city and county jails tuted for that of death. - Hon. E. B. Washburne,
are concerned, the returns are meagre. There are United States Minister to France, Consul-General
over 2,200 county jails. Blanks were sent to the sev. Read, E. D. Freed, of New York, Fred. Passy, Secre
eral county clerks and responses have been received tary of the French Peace Society, and others, met in
| from about 600. The facts will be reported to Congress Paris on the 26th ult., and discussed the proposition
by the attorney-general. laid down at the Judicial Congress of Brussels. The
A statement prepared by the commissioner of patents conference was followed by a dinner, at which a toast
for the coming report of the secretary of the interior, of friendship of France and the United States was
shows that during the year ending September 30, 1873, enthusiastically received. — Japan has substituted
there were filed in the patent office 20,356 applications short terms of imprisonment for the death penalty in
for patents, including re-issues and designs; 283 applicases of crime against property.
cations for the extension of patents and 519 applica
tions for the registering of trade-marks: 12,917 patents, The GUARDIAN says that an extraordinary case is
including re-issues and designs, were issued; 235 excoming before the Wells Consistory Court. The notice
tended and 965 allowed, but not re-issued by reason of has already been drawn by one of the Proctors at
non-payment of the final fee; 3,274 caveats were filed, Wells. Proceedings have been taken against a widow,
and 475 trade-marks registered. The fees received by her brother-in-law, for the following epitaph, just
during the same period from all sources amounted to erected at Dulverton, over her late husband :
$701,626.72, and the total expenditures to $699,449.69,
making the receipts $2,177 in excess of the expendi“To the memory of, &c.,
tures. The expenditures included $40,000 for the pubNeglected by his Doctor, Treated cruel by his Nurse,
lication of the Official Gazette, $40,000 for writing curHis Brother robbed his Widow,
rent drawings and $60,000 for reproduction of old Which makes it all the worse."
The Albany Law Journal.
who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law."
Judge Storrs thus expresses the rule in Plymouth v. ALBANY, VOVEMBER 22, 1873. Painter (17 Conn. 588): “An officer de facto is one
who exercises the duties of an office under color of
an appointment or election to that office. He differs OFFICERS DE FACTO.
on the one hand from the mere usurper of an office . The questions as to who is and who is not a de who undertakes to act as an officer without any color
facto officer, and as to the validity and effect of the | or right, and, on the other hand, from an officer de acts of such an officer have frequently come before jure, who is in all respects legally appointed and qualithe courts for adjudication, and while the general fied to exercise the office.” Fowler v. Beebe (9 Mass. principles are considered well settled, there has been 231), is a leading case in this country. The legislature considerable dispute as to some of the minor points. passed a law organizing a new county and authoriz
It is conceded, that an officer (not de jure), acting | ing the governor to appoint a deputy sheriff for it. under color of appointment or election by the only body The law was to take effect at a future day. Before which had the power to appoint or elect, is an officer it took effect the governor appointed a deputy sheriff de facto; but it has been claimed by some of the courts for the county, and he acted as such. His power to that, in order to constitute an officer de facto, there must | act was questioned collaterally, and it was holden that be color of appointment or election by the only body | the appointment was void because the law had not which has the power to make it. This definition of taken effect, and the authority to appoint had not been an officer de facto was apparently assented to by the conferred, but that the sheriff was, nevertheless, an court in The People v. Collins, 7 Johns. 549; in officer de facto, and the validity of his acts could not McInstry v. Tanner, 9 id. 135; and was adopted in be collaterally impeached. So in Parker v. Baker (8 People v. Albertson, 8 How. Pr. 363, and other cases | Paige, 428), where the governor appointed an officer in this State and in other States. Most of the courts without authority to appoint, the chancellor held him have since found it necessary to qualify this defini to be an officer de facto. In Wilcox v. Smith (5 Wend. tion by striking out the clause that the election or 231), the validity of an execution issued by one acting appointment must be by "the only body which has the and who had acted for three years as a justice of the power to make it."
peace was in question. There was not so much as color This erroneous definition is said to have arisen of election or appointment shown. The question was from an inaccurate report of Rex v. Lisle, in Strange, presented whether there could be a de facto officer with1090. In that case the question arose as to whether out color of eiection or appointment. The court held a man was mayor de facto. It appeared that he never that there could be. It said: “The mere claim to be was, in fact, elected, but pretending to be so, was a public officer and the performance of a single or sworn in and acted as such. According to Strange, even a number of acts in that character would not, the court said that, “in order to constitute a man an perhaps, constitute a man an officer de facto. There officer de facto, there must be at least the form of an must be some color of an election or appointment, or election, though that upon legal objections may an exercise of the office, and an acquiescence on the afterward fall to the ground." This was a general | part of the public, for a length of time which would proposition. It appears, however, from a much fuller, afford a strong presumption of at least a colorable and unquestionably more accurate, report of the case | election or appointment." Among the cases holding in Andrews, 163, that what the court did say on this similar views on this question may be cited Brown v. point was “In order to constitute a mayor de facto, Lunt, 37 Me. 423; Gilliam v. Reddick, 4 Ired. 368; it is necessary that there be some form or color of an | Mallett v. Uncle Sam Co., 1 Nev. 188; Taylor v. election." This proposition was confined to the par Skrine, 3 Brevard, 516; Carleton v. The People, 10 ticular case, involving the status of an officer of a Mich. 250; Cocke v. Halsey, 16 Pet. 71; Commoncorporation in respect to the proceedings of the cor- wealth v. McCombs, 56 Penn. St. 436; Clark v. Comporation, and had no reference to the public or to monwealth, 29 id. 129; Kimball v. Alcorn, 45 Miss. third persons.
151; Ex parte Strang, 21 Ohio St. 610. The question Chief Justice Butler in State v. Carroll (38 Conn. was discussed in People v. White, 24 Wend. 520. 449), after a review of all the material English authori- There the legislature, by a special law, made the ties running through four centuries says: “It will be aldermen of the city of New York ex officio judges seen that the idea that color can only be conferred by of the oyer and terminer. a body or person having power or prima facie power, A prisoner was convicted of murder before that to elect or appoint in the particular case, has never court, partly constituted of aldermen. Objection was been broached in England." Among these cases made by him to the organization of the court, on the may be mentioned that of Rex v. Bedford Level (6) ground that the law authorizing the aldermen to sit East, 356), wherein Lord Ellenborough, giving the was unconstitutional. The supreme court held, that opinion of the court, said: “An officer de facto is one the objeotion could not prevail, on the ground that though the statute was void, the aldermen were de facto ment, the act authorizing the appointment being void. judges. The court of errors reversed the decision of This case was cited and approved in Laver v. Mcthe court below, but on other grounds. The only Glachlin, 28 Wis. 364. In the latter case the dissent from the opinion of the supreme court on trustees of a village, without authority, appointed a this point, was from the chancellor. Four of the justice of the peace and he was holden a de facto seven members writing opinions, concurred with the officer. In Commonwealth v. Mc Combs (56 Penn. St. court below on that point. Senator Verplanck, 436), Judge Strong, now of the Supreme Court of the probably the ablest jurist in the court, said: “Thus in United States, said: “An act of assembly, even if it respect to the judicial character of the aldermen, I be unconstitutional, is sufficient to give color of title, agree with the supreme court, that the aldermen, and an officer acting under it is an officer de facto. whether constitutionally or not, are judges of the See, also, Brown v. O'Connell, 36 Conn. 432; 4 Am. oyer and terminer - so de facto - their commissions Rep. 89; State v. Carroll, 38 Conn. 449; 9 Am. Rep. being written in the statute book, which is to be pre- | 409; Ex parte Strang, 21 Ohio St. 610. sumed valid and constitutional throughout, until it is in the very able opinion in State v. Carroll, the otherwise decided as to any provision."
following definition of an officer de facto is given: The true rule unquestionably is, that it is sufficient "An officer de facto is one whose acts, though not if the officer hold under some power having color of those of a lawful officer, the law, upon principles of authority to appoint.
policy and justice, will hold valid so far as they Will an unconstitutional statute give such color. involve the interests of the public and third persons, It is apparent from the above extract, that Senator / where the duties of the office were exercised: Verplanck was clearly of opinion that it would. And First. Without a known appointment or election, in that opinion he is sustained by the authorities. but under such circumstances of reputation or acqui. Farther than that there is no doubt that a statute escence as were calculated to induce people, without manifestly unconstitutional, would confer color of | inquiry, to submit to or invoke his action, supposing authority. Every statute is presumptively constitu him to be the officer he assumed to be. tional until it has been judicially declared to be Second. Under color of a known and valid appointotherwise.
ment or election, but when the officer had failed to The citizen is not entitled to solve the question for conform to some precedent, requirement or condition, himself. He is bound to presume that the legislature, as to take an oath, give a bond or the like. acting under the solemnity of an oath, has considered Third. Under color of a known election or appointthe questions of the constitutionality of a statute ment, void, because the officer was not eligible, or before its passage, and that they have been settled in its because there was a want of power in the electing or favor. It is a well-settled rule of judicial construc appointing body, or by reason of some defect or tion, that even a court will not declare an act uncon irregularity in its exercise, such ineligibility, want of stitutional unless it is clearly so. In Taylor v. Skrine power or defect being unknown to the public. (3 Brevard, 516), the legislature passed a law author-| Fourth. Under color of an election or appointment izing the governor to appoint a judge, which he did. by or pursuant to a public unconstitutional law, The constitution provided that judges should be before the same is adjudged to be such." elected by the legislature. The act was held to be We had intended to speak of how far an officer unconstitutional, but the person appointed under it de facto is protected when assailed directly for his was held to be a judge de facto. The court said: | acts, but have not the space to do so. " The judge in this case acted under color of legal authority; he had a commission under the seal of the State, signed by the governor and authorized by an | THE STUDY OF THE LAW AS A MENTAL act of the legislature.” In Cocke v. Halsey (16 Pet.
DISCIPLINE. 71), clerks of probate were, by the constitution, made In a great majority of cases, the only practical adelective by the people. The legislature authorized, vantage derived by college students from the study in case of the disability of a clerk, the court of of the higher mathematics is mental discipline. We probate to appoint one. A clerk appointed under have, on several occasions, advocated the substitution this provision was held to be a de facto officer, (if no other place could be found for it in the curricualthough the act was unconstitutional. In State v. | lum) of the study of the general principles of law, Bloom (17 Wis. 521), a party was indicted for a for a part of the usual course in mathematics. It is, crime, tried and convicted and sentenced at a circuit unquestionably, very desirable to have every man court held by Messmore. The supreme court held acquainted with the fundamental laws of his country, that the sentence was good and valid, notwithstand- without regard to the question as to what is to be his ing the fact that in State v. Messmore (14 Wis. 163), it pursuit in life; and, if the study of the law will bring to had decided that Messmore exercised the office of him the same mental training, the substitution of it for circuit judge under the appointment of the governor, some of the ordinary college studies is greatly to be dewho had no authority whatever to make the appoint. I sired. An able writer, some time since, had an article in
the Law Magazine on the subject of the influence on the law, which is as extensive as the concerns of manmind of the study of the law, from which we extract kind." Opinions, such as these, which may be found the following with a view of recurring to the subject scattered up and down the writings of the most comhereafter. He says:
petent judges, are, however, open to serious misap“A dialectica Aristotelis libera nos Domine!" Such prehension. At the present day, when the law is was the pathetic supplication of a certain class of stu- cultivated, less liberally, as a general science, more dents, who, it is said, prayed in the language of St. exclusively as a special practice, an indiscriminate Ambrose for deliverance from the study of the logic of application of such opinions is likely to mislead the Aristotle. The distaste for the Aristotelian dialectic student, and keep out of view the positive dangers was, undoubtedly great; but scarcely can this aver-which attend the study. Nothing, at the same time, sion be said adequately to measure the horror in which ought to encourage its extensive and scientific cultithe study of law has been held by many, even the vation more than a clear conception of the two-fold most strong minded of men. Instead of the logic of and opposite influence which this study is likely to Aristotle the student has, at all times, been willing to exercise on the mind; contracting and enfeebling it, pray for deliverance from the subtleties of Coke upon as the study becomes shallow and practical, and stimLittleton. No study has evoked such implacable ulating its higher powers, as it becomes a scientific hatred. Such being the fact, what are the induce pursuit. But the history of legal study so promiments to its cultivation? Apart from its value to nently exhibits it, in its one practical tendency, that the statesman and the publicist, and its necessity to it is not surprising to find the opinions which exist the lawyer, there remains but one incentive to the regarding its incapacity as a mental exercise, formed pursuit, namely, its capacity for exercising and de almost exclusively with reference to its narrow and veloping the higher mental faculties.
partial cultivation. To some of these opinions I proChiefly as a mental discipline, therefore, does this pose to refer in this paper. Meanwhile, it may be study claim the respect of the student; and it is proba remarked, that there is no science which affords a bly this view of it which alone can encourage its ex more striking resemblance to law, in its influence on tensive, and, consequently, its intensive cultivation. the mental habits, than the science of mathematics. Its capacity, once recognized as a mental gymnastic, Indeed, Dugald Stewart finds no subject bearing so it will not fail to attract, outside the academy and the close an analogy to mathematics itself, as a hypomere profession of the law, such minds as have re- thetical science, as a code of municipal jurisprudence. course to the most laborious studies, for the sake only It has accordingly been asserted, that the one study of self improvement. Meanwhile it may be asked, affords a cultivation as one-sided and contracted as what the special influence of this study is on the the other. Nor has the analogy been held good mental habits? “The difference," says Sir William merely with reference to the general tendency of Hamilton, “between different studies in their con- these studies, but also with reference to some particutracting influence is great. Some exercise, and, con lar habits of mind, which, in an equal degree, they sequently, develop, perhaps, one faculty on a single are said to exercise and encourage, to the exclusion phasis, and to a low degree; whilst others, from a and neglect of others. The first that may be noticed variety of objects and relations which they present, is that which Von Weiller ascribes to the mathematcalling into strong and unexclusive activity the whole ics: “By the mathematics the powers are less stirred circle of the higher powers, may also pretend to ac- , up in their essence than drilled to outward order and complish alone the work of catholic education.” If severity, and consequently manifest their education the testimony of certain writers be accepted, the study | more by a certain formal precision than through of law may claim the highest rank among the sciences their fertility and depth.” To the same effect is the as a mental discipline. Dr. Johnson, for instance, testimony of Hallam, with regard to the study of law says: "Law is the science in which the greatest pow in its practical bearing: “The application of general ers of the understanding are applied to the greatest principles of justice to the infinitely various circumnumber of facts." Edmond Burke, again, terms it stances which may arise in the disputes of men with “the pride of the human intellect," and declares that | each other, is, in itself" (says this writer), “an ad“it does more to quicken and invigorate the under- | mirable discipline of the moral and intellectual faculstanding than all the sciences put together.” Coming ties. Even where the primary rules of light and to our own day, we find that to this study is assigned policy have been obscured in some measure by a a capacity for giving employment to the whole range technical and arbitrary system, which is apt to grow of the higher faculties. “Now there are two subjects up, perhaps, inevitably in the course of civilization, of thought," says the author of "Ancient Law"-"the | the mind gains in precision and acuteness, though at only two, perhaps, with the exception of physical the expense of some important qualities.” Coleridge, science, which are able to give employment to all the again, a competent judge on this subject, notices the capacities which the mind possesses: One of them is one-sided development to which the study of law metaphysical inquiry, which knows no limits so long conduces, and recommends the study of metaplıysics as the mind is satisfied to work on itself; the other is ' as likely to counteract this tendency. “I think," says Coleridge, “ that, upon the whole, the advocate
CURRENT TOPICS. is placed in a position unfavorable to his moral being, The recent decision of the court of appeals in the and, indeed, to his intellect also, in its highest pow- | case of The People v. Albertson will be received with ers. Therefore I would recommend an advocate to satisfaction by all those who believe in a strict adherdevote a part of his leisure time to some study of the lence to the constitution for better or for worse, howmetaphysics of the mind, or metaphysics of theology; |
ever unpalatable it may be to a portion of the people something, I mean, which shall call forth all his pow- directly affected by it. The action was brought nomers, and center his wishes in the investigation of linally, to enforce the payment of a small bill, but truth alone, without reference to a side to be sup- I really to test the constitutionality of char ported. No studies give such a power of distinguish the Laws of 1873, which was an act to establish a ing as metaphysical; and in their natural and unper-Rensselaer Police district. The police of the city of verted tendency, they are ennobling and exalting. Troy was under the control of the democratic authoriSome such studies are wanted to counteract the opera ties. For the purpose of putting it under the control tion of legal studies and practice, which sharpen, in- of the republicans, or at least beyond immediate deed, but, like a grinding-stone, narrow while they | local influences, the act was passed. It was a part of sharpen." And A. J. St. John asserts, on the au
the plan to have the police commissioners appointed thority of Lord Bacon himself, that “a laborious study by the governor, and in order to avoid that provision of law has a natural tendency to narrow and enfeeble of the constitution which confers upon cities in this the mind.” So much, then, for the contracting and regard the right of local self-government (art. x, & 2), enfeebling tendency of this study.
the drafters of the bill included, besides the city of It is admitted, however, without much controversy, | Troy, a little island in the Hudson and a few acres of that the study on the other hand sharpens, and ren land in the adjacent towns, and called the whole a ders the mind remarkably acute (special qualifications “District." By so doing they supposed they had of the lawyer, which, very probably, the reader has brought their bill within the principles laid down in discovered on his own account, without the evidence The People v. Draper, 15 N. Y. 532, and The People v. of either Mr. Hallam or Mr. Coleridge). That the Shepard, 36 id. 285, — the first of which cases suslawyer, of all men, is sharp, is proverbial; and to cor- tained the constitutionality of the Metropolitan Police rect what evidently is a vulgar error on this subject, act, and the second that of the Capital Police act of it becomes necessary to state, once for all, that this 1865. But the court of appeals held — Judge Allen sharpness has nothing akin to the handicraft skill of writing the opinion — that the act was “In the directhe practitioner who dips his fingers into a gentle- tion of an encroachment upon the constitution, an imman's pocket in a crowd. In what, then, does this provement upon both acts," and unconstitutional, sharpness consist? Chiefly, it may be said, in a cer- The court very evidently disapproved of the doctain mental dexterity and quickness of conception, trines held in those cases, but avoided overruling and the ability (as Lord Brougham remarks) to pro- them by distinguishing the case at bar. That duce suddenly the mind's resources at the call of the there was a difference in degree is clear enough, moment. Qualities such as these have placed the but that there was a difference in principle we lawyers in the foremost rank of masters in the art of are unable to discover. If the legislature has the disputation. Burke accordingly remarks, that the power to establish a police district comprising four study of law "renders men acute, inquisitive, dex- counties, or one comprising parts of two counties, terous, prompt in attack, ready in defense, full of re- | why has it not the right to establish one comprising sources.” The tendency of the rudiments of mathe a city and parts of adjacent towns ? Where is the matics to produce a similar effect has been noticed by | boundary line of legislative power? While the court Professor Klumpp, who says that a "legitimate pro- avoided, in terms, overruling these prior cases, the gress in these, aids, sharpens and delights the mind." | ratio decidendi is clearly against them, and their value
as authorities in this State is reduced to about zero.
On the motion of the prosecution the Tichborne Following in the footsteps of English merchants, trial has been adjourned for a year. The government, the New York Chamber of Commerce has commenced wants to hunt up evidence. “An agent of the British to discuss the feasibility and desirability of a Court of government," it is said, is in this country for that Commerce, has instructed its committee to inquire purpose. We were not aware that her majesty took into the expediency of establishing such a tribunal such extreme pains to convict her oflending subjects." for the speedy, judicial and economical settlement It is evident that the prosecution found the convic- of disputes among merchants and others." Although tion of the Claimant a more difficult matter than they such courts have been long established in several of had anticipated, and this adjournment has very likely the European countries, it is only recently that the been resorted to as a means of beating an honorable Anglo Saxon has entertained the idea. Courts of retreat. The case has been full of surprises, not the Commerce, like courts of conciliation and of Arbitraleast of which is its present disposition.
| tion, have their merits as well as their demerits, but