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The Albany Law Journal.

ALBANY, APRIL 10, 1875.

CURRENT TOPICS.

IT appears that examinations for admission to the bar in England are scarcely more satisfactory and thorough than they are in this country. According to the present regulations the Inns of Court provide for the examination, and the Law Times states that the examination papers require so small a knowledge of law that practically the examination affords no test of legal knowledge. The questions

put on all the required branches of legal study are only sixty in number. Twelve of these are designed to test the proficiency of the applicant in commonlaw doctrines. Of this class of questions eight require definitions of a contract, a bill of exchange and promissory note, a tort, a special indorsement and an indorsement in blank, murder, manslaughter, perjury and crime. Other questions are as follows: Illustrate the difference between an executory and executed, an express and implied contract? Is a contract obtained by fraud a valid one? Is a wife, servant, or son, who commits an offense, excused because the commission is ordered by husband, master, or parent? What steps are to be taken when a judge's ruling, at nisi prius, is objectionable in point of law? Eminent Queen's counsel superintend the examination, but the Law Times thinks this is open to the objection that they have no time to overlook it and are not specially qualified to conduct it, except by their readiness to do so. Our contemporary also remarks, that an amiable desire not to exclude men from the bar should not blind the benchers to the fact that, when an examination is set up as a test of the fitness of the aspirants, each examination is a trial not only for the applicants, but also for the profession to which they seek admission, and to exact no knowledge and require no information as a necessary preliminary to becoming a barrister, is a sure way of covering the legal profession with contempt.

A correspondent of the New York Herald has interviewed Mr. Elbert Herring of New York, who was born at Stratford, Conn., July 8, 1777, and is now in his ninety-eighth year. He studied law in New York with the "old oracle of law," Judge Samuel Jones, and was admitted to the bar in December, 1799, when the population of the city was scarcely fifty thousand. He was elected judge of VOL. 11.- No. 15.

the Marine Court in 1805, and in 1812 served as register, being the first register ever appointed in this State. Charles O'Conor studied law in his office, and James P. Allaine, the distinguished engineer, was his errand boy. At one time Mr. Herring was at the head of the Indian bureau at Washington and was intimate with Daniel Webster. He expressed the opinion that he was the oldest lawyer in the city and probably in the world. His career, though not remarkable in itself, is particularly noteworthy in connection with the varying phases of the profession during the last century.

The United States Supreme Court has decided the case of Bailey v. The N. Y. C. & H. R. R. Co., reThe lating to the taxation of scrip dividends. court decides the case against the company, holding that the interest certificates used by the Central road, payable at the pleasure of the company, are road before its consolidation with the Hudson river properly taxable under the act of 1868. This act

provides that dividends declared by a railroad company in scrip or money, due and payable to their stockholders as part of the earnings, profits, income or gains of the company carried to the account of fund or used for construction, are proper objects any of taxation. A divideni in scrip is subject to the tax whenever, and wherever, or to whatever person the same shall be payable. The scrip becomes operative and due within the meaning of the revenue act, when it is unconditionally declared, without containing any provision postponing its effect. This decision reverses that of Judge Wallace, who held that the scrip was not taxable.

The relative rights of attorneys and clients have been considered in two cases in New York recently. In the case of Porter v. Townsend, in the Superior Court, it was held that an attorney whose client claims a fund in the attorney's hands is not entitled to a jury trial as a matter of right, even when he sets up that the fund he retains belongs to him under an agreement. The client claimed that the attorney had received $31,963.81 and had only paid over $16,680.22. The client admitted that the services were worth about $4,000, and made a motion at special term that the attorney pay over the balance. The attorney answered, that, by agreement, he was to have half the recovery and insisted on a jury trial. The court, however, sent the case to a referee who found against the attorney, and the court ordered him to pay over. On appeal to the general term Judge Monell delivered an elaborate opinion, holding, that the legalizing of agreements for fees between attorney and client has in no way altered the control of the court over attorneys, and that the court may, at its discretion, either proceed on motion, or leave the client to his action against the

attorney. A similar decision was made in the general term of the Court of Common Pleas in the case of Fincke v. Cornell. The attorney was ordered, on motion in the court below and after a reference, to pay over certain funds. The attorney appealed on the ground that a suit should have been brought, but the court holds, that summary proceedings by motion are proper in such a case.

The trial of the Guicowar of Baroda, India, for attempting to poison Col. Phayre, was unique in every respect. The court-room, though devoid of Oriental magnificence, had an air about it indicating that a prince was being tried by princes and the representatives of the sovereign. The accused was deeply impressed with the humiliation of his position; and he looked askance at the chair in which he was to sit, and with an apparent effort seated himself. One of the judges wore a pink silk robe and scarlet turban and sparkling jewels; another was clad in black velvet enriched with gold embroidery; another was robed in white muslin, and another wore the clothes common to Europeans. The first business of the court was the reading of the commission of the judges in three languages, and the case was opened for the prosecution by Mr. Scoble. The defense was conducted by Sergeant Ballantine of England. The trial resulted in the disagreement of the commission.

The Supreme Court Reporters' bill has passed, and now only waits the Governor's signature. The Senate Judiciary Committee some time since amended the bill so as to provide for a meeting of the judges to make the appointment in Albany, on the last Wednesday of May next, and as thus amended it passed the Senate. The Assembly Judiciary Committee last week amended the bill by changing the date of meeting to the first Tuesday in June. On Wednesday a conference committee agreed upon the latter date, and in that form it was finally passed. The bill provides that the reporter shall be appointed by the judge designated to hold general terms, at a meeting to be held at the capitol, in Albany, on the first Tuesday of June; that he shall hold his office for five years; shall report not to exceed three volumes a year, of not less than seven hundred pages each, at a price not exceeding two dollars and fifty cents per volume. Copies of cases and points are to be furnished by the counsel for the use of the reporter, and copies of all opinions of the general terms are to be sent to him. It now only remains for the judges to appoint an energetic and competent reporter, for an ending of much of the confusion and contention that has for some time characterized reporting in this State. Backed by the judges, such a reporter can very soon put an end to any other series, either of the general

or special term, and that is precisely what is needed and precisely why a reporter should be appointed by the court. But if, on the other hand, the appointee lapse into the methods of the past official reporters of this court, private enterprise will again take the matter up, and there is even a possibility that those ambitious young men of the Bar Association Committee might realize their scheme. We have neglected to say that the Senate Judiciary Committee threw out the bill for incorporating the "Council of Law Reporting."

The troubles which frequently arise in regard to wills, receive fresh illustration in the case of Lord St. Leonard's will, which cannot be found. It having been surmised that it was buried with him in his dressing gown, it is thought probable that he will be disinterred to ascertain the truth of the conjecture. Singular vicissitudes attend wills. A will disposing of immense property was found in an old bedstead being taken to pieces; another will was found, eighteen years after the death of the testator, in a secret recess of a bureau, which had been sold at auction. It is a remarkable fact, as a lay contemporary observes, that eminent lawyers make a muddle of their own testamentary affairs. The will of Lord Westbury gave rise to troublesome litigation; and in a case before the English Probate Court a will was declared null on account of defects in the attestation clause which had been drawn up by a colonial chief justice. The will of a relative of an eminent judge was found to be fatally defective, although two learned judges had been concerned in drawing it up. As a general rule the fewer the wills made, the better. The law will dispose of property in the great majority of instances more impartially and justly than the testator.

The argument of Mr. David Dudley Field, before the Supreme Court of the United States last week, in the case of the United States v. Cruikshank, was very able and elaborate. This case, it will be remembered, involves the constitutionality of the Enforcement Act. The defendants were convicted under that act for conspiracy to prevent negroes from voting. The question was whether the new amendments to the Constitution conferred the power upon Congress to enact the law. Mr. Field contended that the amendments did not authorize such legislation. The amendments, he said, are to be construed with the other parts of the Constitution, and there are many limitations upon the choice of means for attaining an end beyond those which are expressed. They are implied from the nature of the government, the history of the country and the traditions of the people. He contended that the natural interpretation of the language of the new amendments did not justify the present legislation;

THE

NEWSPAPERS AND JUDGES.

HE recent attacks, by the newspapers, upon members of the judiciary in England and in this country are evidences of a disposition on the part of the lay press to abuse its right of free speech, if not to trample upon justice itself. We have heretofore endeavored to show the proper relations of the press and the bench; but such exhibitions of unjustifiable and unlicensed censure, as those we have just seen in the newspapers, call for additional remarks upon the subject. And it may be well to premise that, in our criticism, we do not include the entire press of the country. For the greater portion of the newspapers seem to understand their rights and duties when dealing with matters pertaining to the administration of justice. It may be well also to state our unqualified approval of a temperate and enlightened discussion of the merits of judges and of the soundness of their decisions. It is, too, one of the legitimate functions of journalism to expose venality and fraud whether in the administration of legislative, executive, or judicial affairs. But it

should be borne in mind that one of the essential characteristics of the administration of justice is that it be free from reproach and suspicion. When the newspapers of any country begin to breathe suspicion and imputations upon the names of their judges, they must be first sure that they are right in their assertions and animadversions. It is a most reckless matter for a journal to impute unfairness or venality to a member of the judiciary without ascertaining, beyond reasonable doubt, the truth of the charges. The ease and freedom with which charges of judicial corruption and bias can be made by the newspapers, and the difficulty which attends the refutation of such charges is another important consideration. Judicial etiquette requires that the judge should practically shut himself up from the ordinary controversies of men; for he does not know what questions may come before him for judicial determination. To engage in every newspaper controversy about his fitness for office, or his freedom from bias on great public questions of whatever character, has a tendency to compromise the dignity of the judicial office and lower the administrators of justice in the eyes of the people. A judge seldom or never can defend himself from newspaper attacks with good grace or good success. The absolute unfairness and inequality of an attack, by a respectable journal, on a respectable judge is perfectly patent to all who have considered the matter.

There is still another aspect of this question which is worthy of attention. There are some newspapers which think judges carry with them, upon the bench, all the old associations and interests which they may have espoused during their career at the bar. If a judge has been counsel for an extensive concern; if he has been identified with any political

party or movement, there is a constant endeavor to slur his motives and judicial acts when cases involving similar interests or possessing quasi-political aspects come before him for decision. Unquestionably a judge may be biased by his antecedent career as counsel or politician; but there is no presumption to that effect, and the conclusion should not be drawn without irrefragable proof. If it were true that judges who have been politicians or counsel for extensive commercial or industrial organizations cannot act with impartiality when matters connected with such organizations, political, commercial or industrial, come before them for adjudication, then we have no hope of ever securing a competent and impartial judiciary. For the very lawyers who, by their abilities and attainments, are entitled to the highest seats on the bench, are frequently identified with politics and with great industrial and business interests. No one advocates more ardently than ourselves the withdrawal of the judiciary from politics and from business; but we are not so impracticable as to attempt to secure a judiciary whose members were not formerly identified with any of the great political, commercial and social forces which move the body politic.

It is hardly necessary to state, that there never was a more unfair and discourteous, if not inconsiderate, attack by the newspapers than that of some of the New York and New England journals, upon the character of Chief Judge Church and other members of our Court of Appeals. The present members of this court stand as high among the profession as any of those who have constituted it from its foundation nearly thirty years ago. We never have had a more able, industrious and impartial appellate court, as a whole and in respect to its individual members than now; and it is a disgrace to journalism that the imputations, which have been thrown out by certain journals on such flimsy excuses, have been allowed to go without any thing more than a passing rebuke from the great majority of better-informed and better-tempered journals. And it is a humiliating sight when the Chief Judge of the highest court of this State is compelled, by the force of public sentiment, to make an express denial of such baseless charges. For the sake of the dignity and sanctity of the judicial office, and for the sake of the intelligence and courtesy of journalism, we hope that this matter will not occur again.

The medal for legal studies, the gift of the Chancellor of the University of Cambridge, England, has recently been awarded to Courtney Stanhope Kenny, law scholar of Downing college, who was admitted to rolls in 1869. Mr. Kenny has received several honors. In 1871 he was proxime accessit for the Whewell scholarship of International Law, and he was senior in the last Law and History Tripos. In 1874 he obtained the first Winchester reading prize, and was elected president of the Cambridge Union Debating Society.