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ment reversed and judgment ordered declaring that under the codicil the nephews and nieces each take $3,500, subject to debts, etc., with costs to each party to be paid from the estate-Pierpont v. Patrick.Judgment of Supreme Court and order of County Judge reversed and proceedings dismissed - People ex rel. Rogers v. Spencer, County Judge, etc. Judgment reversed and new trial granted with costs of the appeal to abide the final decision as to the costs of the action-Moore v. Metropolitan National Bank. Judgment of Supreme Court and proceedings of Court Martial reversed - People ex rel. Garling v. Van Allen.

Order modified pursuant to opinion of Judge Folger; term of order to be settled by him without costs to either party in the court-Merchants' Bank v. Thompson.

FOREIGN NOTES.

The Social Science Congress will meet next year at Glasgow, Scotland. Business in the English common-law courts is said to be continually decreasing.Professor James Bryce and Messrs. I. B. Gunning Moore, T. C. Holland, W. R. Kennedy, all of Lincoln's Inn, barristers at law, are each to deliver a lecture during the season of 1873-4, before the Incorporated Law Society of Liverpool. Mr. Hawkins, on the sixth inst., applied to the Queen's Bench for an extension of time for further hearing in the case of the Tichborne claimant until November, 1874. The application was granted. The European Assurance Arbitration resumed its sittings on the 27th ult., in London, with Lord Ramilly as arbitrater. -There are nine law lords sitting in the House of Lords, and in the House of Commons, as near as can be ascertained, there are forty lawyers (chiefly barristers), representing various constituencies. At the recent Birmingham (England) Quarter Sessions, the grand jury'made a presentment that the time has arrived when the functions of grand juries in large towns and districts should cease.

Sir Alfred Shepherd, Chief Justice of New South Wales, has retired from the bench. He was appointed judge of the Supreme Sourt in 1847, and chief justice in 1844. The new Italian minister of justice has, it is said, completed his labors for the formation of a new penal code, by which other punishments are substituted for that of death. Hon. E. B. Washburne, United States Minister to France, Consul-General Read, E. D. Freed, of New York, Fred. Passy, Secretary of the French Peace Society, and others, met in Paris on the 26th ult., and discussed the proposition laid down at the Judicial Congress of Brussels. The conference was followed by a dinner, at which a toast of friendship of France and the United States was enthusiastically received. -Japan has substituted short terms of imprisonment for the death penalty in cases of crime against property.

The GUARDIAN says that an extraordinary case is coming before the Wells Consistory Court. The notice has already been drawn by one of the Proctors at Wells. Proceedings have been taken against a widow,

by her brother-in-law, for the following epitaph, just

erected at Dulverton, over her late husband:

"To the memory of, &c.,
Neglected by his Doctor.
Treated cruel by his Nurse,
His Brother robbed his Widow,
Which makes it all the worse."

LEGAL NEWS.

A large number of rare English law books have been added to the library of the Chicago Law Institute.

W. P. D. Bush, Esq., has been re-appointed reporter of the Court of Appeals of Kentucky.

The expenses of the Pennsylvania constitutional convention up to November 1, were $475,000, leaving $25,000 unexpended.

It is stated that at the commencement of the judicial career of Hon. Caleb Cushing he read sixty volumes of Massachusetts reports in nineteen days, and that his average study and labor for years has been seventeen hours a day.

W. R. Adams, who was accused of the murder of Judge Crawford and District Attorney Harris, in Franklin Parish, La., last September, has been discharged by United States Commissioner Wells, the prosecution not being able to make a case against him.

The First Comptroller of the United States treasury has instructed the assistant treasurer at New York "that the bankruptcy of an agent is a revocation of the agency, but where, subsequent to the bankruptcy, the principal, with knowledge of the fact, appoints the bankrupt his agent, the latter may lawfully transact any business intrusted to him."

The United States marshal for the Western district of Texas, informs Attorney-General Williams that Deputy Marshal John P. Freys, was assassinated on the 25th of October, by a man named McUber. who had been convicted of murder and sentenced to be hanged, but made his escape from prison. This is the fifth deputy marshal assassinated in that district.

The Department of Justice has attempted, during the present year, in accordance with a resolution of Congress, to obtain full criminal returns for the United States. As no appropriation was made, such returns were dependent on the good will of judicial and other officers. Mr. Falls, chief clerk of the department, states that the returns of all inmates of penitentiaries, their trials, sentence, nativity, education, etc., are completed; but as far as the city and county jails are concerned, the returns are meagre. There are over 2,200 county jails. Blanks were sent to the several county clerks and responses have been received from about 600. The facts will be reported to Congress by the attorney-general.

A statement prepared by the commissioner of patents for the coming report of the secretary of the interior, shows that during the year ending September 30, 1873, there were filed in the patent office 20,354 applications for patents, including re-issues and designs; 283 applications for the extension of patents and 519 applications for the registering of trade-marks; 12,917 patents, including re-issues and designs, were issued; 235 extended and 965 allowed, but not re-issued by reason of non-payment of the final fee; 3,274 caveats were filed, and 475 trade-marks registered. The fees received

during the same period from all sources amounted to

$701,626.72, and the total expenditures to $699,449.69, making the receipts $2,177 in excess of the expenditures. The expenditures included $40,000 for the publication of the Official Gazette, $40,000 for writing current drawings and $60,000 for reproduction of old drawings.

The Albany Law Journal.

ALBANY, NOVEMBER 22, 1873.

OFFICERS DE FACTO.

The questions as to who is and who is not a de facto officer, and as to the validity and effect of the acts of such an officer have frequently come before the courts for adjudication, and while the general principles are considered well settled, there has been considerable dispute as to some of the minor points. It is conceded, that an officer (not de jure), acting under color of appointment or election by the only body which had the power to appoint or elect, is an officer de facto; but it has been claimed by some of the courts that, in order to constitute an officer de facto, there must be color of appointment or election by the only body which has the power to make it. This definition of an officer de facto was apparently assented to by the court in The People v. Collins, 7 Johns. 549; in McInstry v. Tanner, 9 id. 135; and was adopted in People v. Albertson, 8 How. Pr. 363, and other cases in this State and in other States. Most of the courts have since found it necessary to qualify this definition by striking out the clause that the election or appointment must be by "the only body which has the power to make it."

This erroneous definition is said to have arisen from an inaccurate report of Rex v. Lisle, in Strange, 1090. In that case the question arose as to whether a man was mayor de facto. It appeared that he never was, in fact, elected, but pretending to be so, was sworn in and acted as such. According to Strange, the court said that, "in order to constitute a man an officer de facto, there must be at least the form of an election, though that upon legal objections may afterward fall to the ground." This was a general proposition. It appears, however, from a much fuller, and unquestionably more accurate, report of the case in Andrews, 163, that what the court did say on this point was "In order to constitute a mayor de facto, it is necessary that there be some form or color of an election." This proposition was confined to the particular case, involving the status of an officer of a corporation in respect to the proceedings of the corporation, and had no reference to the public or to third persons.

Chief Justice Butler in State v. Carroll (38 Conn. 449), after a review of all the material English authorities running through four centuries says: "It will be seen that the idea that color can only be conferred by a body or person having power or prima facie power, to elect or appoint in the particular case, has never been broached in England." Among these cases may be mentioned that of Rex v. Bedford Level (6 East, 356), wherein Lord Ellenborough, giving the opinion of the court, said: "An officer de facto is one

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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. 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 on the one hand from the mere usurper of an office who undertakes to act as an officer without any color or right, and, on the other hand, from an officer de jure, who is in all respects legally appointed and qualified to exercise the office." Fowler v. Beebe (9 Mass. 231), is a leading case in this country. The legislature passed a law organizing a new county and authorizing the governor to appoint a deputy sheriff for it. The law was to take effect at a future day. Before it took effect the governor appointed a deputy sheriff for the county, and he acted as such. His power to act was questioned collaterally, and it was holden that the appointment was void because the law had not taken effect, and the authority to appoint had not been conferred, but that the sheriff was, nevertheless, an officer de facto, and the validity of his acts could not be collaterally impeached. be collaterally impeached. So in Parker v. Baker (8 Paige, 428), where the governor appointed an officer without authority to appoint, the chancellor held him to be an officer de facto. In Wilcox v. Smith (5 Wend. 231), the validity of an execution issued by one acting and who had acted for three years as a justice of the peace was in question. There was not so much as color of election or appointment shown. The question was presented whether there could be a de facto officer without color of election or appointment. The court held that there could be. It said: "The mere claim to be a public officer and the performance of a single or even a number of acts in that character would not, perhaps, constitute a man an officer de facto. There must be some color of an election or appointment, or an exercise of the office, and an acquiescence on the part of the public, for a length of time which would afford a strong presumption of at least a colorable election or appointment." Among the cases holding similar views on this question may be cited Brown v. Lunt, 37 Me. 423; Gilliam v. Reddick, 4 Ired. 368; Mallett v. Uncle Sam Co., 1 Nev. 188; Taylor v. Skrine, 3 Brevard, 516; Carleton v. The People, 10 Mich. 250; Cocke v. Halsey, 16 Pet. 71; Commonwealth v. McCombs, 56 Penn. St. 436; Clark v. Commonwealth, 29 id. 129; Kimball v. Alcorn, 45 Miss. 151; Ex parte Strang, 21 Ohio St. 610. The question was discussed in People v. White, 24 Wend. 520. There the legislature, by a special law, made the aldermen of the city of New York ex officio judges of the oyer and terminer.

A prisoner was convicted of murder before that court, partly constituted of aldermen. Objection was made by him to the organization of the court, on the ground that the law authorizing the aldermen to sit was unconstitutional. The supreme court held, that the objection could not prevail, on the ground that

though the statute was void, the aldermen were de facto judges. The court of errors reversed the decision of the court below, but on other grounds. The only dissent from the opinion of the supreme court on this point, was from the chancellor. Four of the seven members writing opinions, concurred with the court below on that point. Senator Verplanck, | probably the ablest jurist in the court, said: "Thus in respect to the judicial character of the aldermen, I agree with the supreme court, that the aldermen, whether constitutionally or not, are judges of the oyer and terminer-so de facto-their commissions being written in the statute book, which is to be presumed valid and constitutional throughout, until it is otherwise decided as to any provision."

The true rule unquestionably is, that it is sufficient if the officer hold under some power having color of authority to appoint.

Will an unconstitutional statute give such color. It is apparent from the above extract, that Senator Verplanck was clearly of opinion that it would. And in that opinion he is sustained by the authorities. Farther than that there is no doubt that a statute manifestly unconstitutional, would confer color of authority. Every statute is presumptively constitutional until it has been judicially declared to be otherwise.

The citizen is not entitled to solve the question for himself. He is bound to presume that the legislature, acting under the solemnity of an oath, has considered the questions of the constitutionality of a statute before its passage, and that they have been settled in its favor. It is a well-settled rule of judicial construction, that even a court will not declare an act unconstitutional unless it is clearly so. In Taylor v. Skrine (3 Brevard, 516), the legislature passed a law authorizing the governor to appoint a judge, which he did. The constitution provided that judges should be elected by the legislature. The act was held to be unconstitutional, but the person appointed under it was held to be a judge de facto. The court said: "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 act of the legislature." In Cocke v. Halsey (16 Pet. 71), clerks of probate were, by the constitution, made elective by the people. The legislature authorized, in case of the disability of a clerk, the court of probate to appoint one. A clerk appointed under this provision was held to be a de facto officer, although the act was unconstitutional. In State v. Bloom (17 Wis. 521), a party was indicted for a crime, tried and convicted and sentenced at a circuit court held by Messmore. The supreme court held that the sentence was good and valid, notwithstanding the fact that in State v. Messmore (14 Wis. 163), it had decided that Messmore exercised the office of circuit judge under the appointment of the governor, who had no authority whatever to make the appoint

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ment, the act authorizing the appointment being void. This case was cited and approved in Laver v. McGlachlin, 28 Wis. 364. In the latter case the trustees of a village, without authority, appointed a justice of the peace and he was holden a de facto officer. In Commonwealth v. Mc Combs (56 Penn. St. 436), Judge Strong, now of the Supreme Court of the United States, said: "An act of assembly, even if it be unconstitutional, is sufficient to give color of title, and an officer acting under it is an officer de facto. See, also, Brown v. O'Connell, 36 Conn. 432; 4 Am. Rep. 89; State v. Carroll, 38 Conn. 449; 9 Am. Rep. 409; Ex parte Strang, 21 Ohio St. 610.

In the very able opinion in State v. Carroll, the following definition of an officer de facto is given: "An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised:

First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.

Second. Under color of a known and valid appointment or election, but when the officer had failed to conform to some precedent, requirement or condition, as to take an oath, give a bond or the like.

Third. Under color of a known election or appointment, void, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public.

Fourth. Under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such."

We had intended to speak of how far an officer de facto is protected when assailed directly for his acts, but have not the space to do so.

THE STUDY OF THE LAW AS A MENTAL DISCIPLINE.

In a great majority of cases, the only practical advantage derived by college students from the study of the higher mathematics is mental discipline. We have, on several occasions, advocated the substitution (if no other place could be found for it in the curriculum) of the study of the general principles of law, for a part of the usual course in mathematics. It is, unquestionably, very desirable to have every man acquainted with the fundamental laws of his country, without regard to the question as to what is to be his pursuit in life; and, if the study of the law will bring to him the same mental training, the substitution of it for some of the ordinary college studies is greatly to be desired. An able writer, some time since, had an article in

the Law Magazine on the subject of the influence on the mind of the study of the law, from which we extract the following with a view of recurring to the subject hereafter. He says:

"A dialectica Aristotelis libera nos Domine!" Such was the pathetic supplication of a certain class of students, who, it is said, prayed in the language of St. Ambrose for deliverance from the study of the logic of Aristotle. The distaste for the Aristotelian dialectic was, undoubtedly great; but scarcely can this aversion be said adequately to measure the horror in which the study of law has been held by many, even the most strong minded of men. Instead of the logic of Aristotle the student has, at all times, been willing to pray for deliverance from the subtleties of Coke upon Littleton. No study has evoked such implacable hatred. Such being the fact, what are the inducements to its cultivation? Apart from its value to the statesman and the publicist, and its necessity to the lawyer, there remains but one incentive to the pursuit, namely, its capacity for exercising and developing the higher mental faculties.

law, which is as extensive as the concerns of mankind." Opinions, such as these, which may be found scattered up and down the writings of the most competent judges, are, however, open to serious misapprehension. At the present day, when the law is cultivated, less liberally, as a general science, more exclusively as a special practice, an indiscriminate application of such opinions is likely to mislead the student, and keep out of view the positive dangers which attend the study. Nothing, at the same time, ought to encourage its extensive and scientific cultivation more than a clear conception of the two-fold and opposite influence which this study is likely to exercise on the mind; contracting and enfeebling it, as the study becomes shallow and practical, and stimulating its higher powers, as it becomes a scientific pursuit. But the history of legal study so prominently exhibits it, in its one practical tendency, that it is not surprising to find the opinions which exist regarding its incapacity as a mental exercise, formed almost exclusively with reference to its narrow and partial cultivation. To some of these opinions I propose to refer in this paper. Meanwhile, it may be remarked, that there is no science which affords a more striking resemblance to law, in its influence on the mental habits, than the science of mathematics. Indeed, Dugald Stewart finds no subject bearing so close an analogy to mathematics itself, as a hypothetical science, as a code of municipal jurisprudence. It has accordingly been asserted, that the one study affords a cultivation as one-sided and contracted as the other. Nor has the analogy been held good merely with reference to the general tendency of these studies, but also with reference to some particular habits of mind, which, in an equal degree, they are said to exercise and encourage, to the exclusion and neglect of others. The first that may be noticed is that which Von Weiller ascribes to the mathematics: "By the mathematics the powers are less stirred up in their essence than drilled to outward order and severity, and consequently manifest their education more by a certain formal precision than through their fertility and depth." To the same effect is the testimony of Hallam, with regard to the study of law

Chiefly as a mental discipline, therefore, does this study claim the respect of the student; and it is probably this view of it which alone can encourage its extensive, and, consequently, its intensive cultivation. Its capacity, once recognized as a mental gymnastic, it will not fail to attract, outside the academy and the mere profession of the law, such minds as have recourse to the most laborious studies, for the sake only of self improvement. Meanwhile it may be asked, what the special influence of this study is on the mental habits? "The difference," says Sir William Hamilton, "between different studies in their contracting influence is great. Some exercise, and, consequently, develop, perhaps, one faculty on a single phasis, and to a low degree; whilst others, from a variety of objects and relations which they present, calling into strong and unexclusive activity the whole circle of the higher powers, may also pretend to accomplish alone the work of catholic education." If the testimony of certain writers be accepted, the study of law may claim the highest rank among the sciences as a mental discipline. Dr. Johnson, for instance, 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 number of facts." Edmond Burke, again, terms it "the pride of the human intellect," and declares that "it does more to quicken and invigorate the understanding than all the sciences put together." Coming to our own day, we find that to this study is assigned a capacity for giving employment to the whole range of the higher faculties. "Now there are two subjects of thought," says the author of "Ancient Law"-"the only two, perhaps, with the exception of physical science, which are able to give employment to all the capacities which the mind possesses: One of them is metaphysical inquiry, which knows no limits so long as the mind is satisfied to work on itself; the other is

principles of justice to the infinitely various circumstances which may arise in the disputes of men with each other, is, in itself" (says this writer), “an admirable discipline of the moral and intellectual faculties. Even where the primary rules of light and policy have been obscured in some measure by a technical and arbitrary system, which is apt to grow up, perhaps, inevitably in the course of civilization, the mind gains in precision and acuteness, though at the expense of some important qualities." Coleridge, again, a competent judge on this subject, notices the one-sided development to which the study of law conduces, and recommends the study of metaphysics as likely to counteract this tendency. "I think,"

says Coleridge, "that, upon the whole, the advocate is placed in a position unfavorable to his moral being, and, indeed, to his intellect also, in its highest powers. Therefore I would recommend an advocate to devote a part of his leisure time to some study of the metaphysics of the mind, or metaphysics of theology; something, I mean, which shall call forth all his powers, and center his wishes in the investigation of truth alone, without reference to a side to be supported. No studies give such a power of distinguishing as metaphysical; and in their natural and unperverted tendency, they are ennobling and exalting. Some such studies are wanted to counteract the operation of legal studies and practice, which sharpen, indeed, but, like a grinding-stone, narrow while they sharpen." And A. J. St. John asserts, on the authority of Lord Bacon himself, that "a laborious study of law has a natural tendency to narrow and enfeeble the mind." So much, then, for the contracting and enfeebling tendency of this study.

It is admitted, however, without much controversy, that the study on the other hand sharpens, and renders the mind remarkably acute (special qualifications of the lawyer, which, very probably, the reader has discovered on his own account, without the evidence of either Mr. Hallam or Mr. Coleridge). That the lawyer, of all men, is sharp, is proverbial; and to correct what evidently is a vulgar error on this subject, it becomes necessary to state, once for all, that this sharpness has nothing akin to the handicraft skill of the practitioner who dips his fingers into a gentleman's pocket in a crowd. In what, then, does this sharpness consist? Chiefly, it may be said, in a certain mental dexterity and quickness of conception, and the ability (as Lord Brougham remarks) to produce suddenly the mind's resources at the call of the moment. Qualities such as these have placed the lawyers in the foremost rank of masters in the art of disputation. Burke accordingly remarks, that the study of law "renders men acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources."

The tendency of the rudiments of mathematics to produce a similar effect has been noticed by Professor Klumpp, who says that a "legitimate progress in these, aids, sharpens and delights the mind."

On the motion of the prosecution the Tichborne trial has been adjourned for a year. The government wants to hunt up evidence. "An agent of the British government," it is said, is in this country for that purpose. We were not aware that her majesty took such extreme pains to convict her offending subjects. It is evident that the prosecution found the conviction of the Claimant a more difficult matter than they had anticipated, and this adjournment has very likely been resorted to as a means of beating an honorable retreat. The case has been full of surprises, not the least of which is its present disposition.

CURRENT TOPICS.

The recent decision of the court of appeals in the case of The People v. Albertson will be received with satisfaction by all those who believe in a strict adherence to the constitution for better or for worse, however unpalatable it may be to a portion of the people directly affected by it. The action was brought nominally, to enforce the payment of a small bill, but really to test the constitutionality of chapter 638 of the Laws of 1873, which was an act to establish a Rensselaer Police district. The police of the city of Troy was under the control of the democratic authorities. For the purpose of putting it under the control of the republicans, or at least beyond immediate local influences, the act was passed. It was a part of the plan to have the police commissioners appointed by the governor, and in order to avoid that provision of the constitution which confers upon cities in this regard the right of local self-government (art. x, § 2), the drafters of the bill included, besides the city of Troy, a little island in the Hudson and a few acres of land in the adjacent towns, and called the whole a "District." By so doing they supposed they had brought their bill within the principles laid down in The People v. Draper, 15 N. Y. 532, and The People v. Shepard, 36 id. 285,- the first of which cases sustained the constitutionality of the Metropolitan Police act, and the second that of the Capital Police act of 1865. But the court of appeals held-Judge Allen writing the opinion that the act was "In the direction of an encroachment upon the constitution, an improvement upon both acts," and unconstitutional. The court very evidently disapproved of the doctrines held in those cases, but avoided overruling them by distinguishing the case at bar. That there was a difference in degree is clear enough, but that there was a difference in principle we are unable to discover. If the legislature has the power to establish a police district comprising four counties, or one comprising parts of two counties, why has it not the right to establish one comprising a city and parts of adjacent towns? Where is the boundary line of legislative power? While the court avoided, in terms, overruling these prior cases, the ratio decidendi is clearly against them, and their value as authorities in this State is reduced to about zero.

Following in the footsteps of English merchants, the New York Chamber of Commerce has commenced to discuss the feasibility and desirability of a Court of Commerce, has instructed its committee to inquire into the expediency of establishing such a tribunal "for the speedy, judicial and economical settlement of disputes among merchants and others." Although such courts have been long established in several of the European countries, it is only recently that the Anglo Saxon has entertained the idea. Courts of Commerce, like courts of conciliation and of Arbitration, have their merits as well as their demerits, but

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