The General Terms of the third and fourth departments are hopelessly in arrear with their work, and there is no probability that their condition will improve; but on the contrary it will grow worse. The General Term in each of these departments has more work than it can do.

Should your correspondent's suggestions in regard to the County Courts be adopted, two justices of the Supreme Court in each district in the third and fourth departments could do all the Circuit, Special Term and Oyer and Terminer work which now employs three justices.

Third department to include the third and fourth judicial districts; fourth department the fifth and sixth judicial districts; fifth department the seventh and eighth judicial districts.

From each of these departments justices may be designated to hold General Terms.

By this plan an additional department and General Term may be provided without any additional judges, and at very little additional expense. This scheme involves an amendment to section 7, article VI, of the Constitution, so as to authorize the Legislature to provide for five, instead of four General Terms.

NOTES.

S.

AT the Columbia College law school Wednesday, 175

new lawyers were turned loose on an already overburdened country. Are we to be driven to the desperate measure of organizing a society for the suppression of lawyers?-Troy Times. Let not our good neighbor worry himself. The press is always open to unsuccessful lawyers, and they make the best editors. -The summing up of Mr. Beach in the Billings murder trial is pronounced one of the greatest efforts of his life. We have long considered him one of the finest living forensic orators. The Troy Times speaks of the argument as follows: "The Hon. Wm. A. Beach, who summed up for the defense in the Billings case yesterday at Ballston, although upwards of seventy years of age, spoke for seven hours with vigor, eloquence and power. Mr. Beach began his professional life forty-seven years ago in the same court room where yesterday he commanded the rapt attention of a crowded but appreciative audience. He was for many years a leader at the bar of Rensselaer county, when such champions as David L. Seymour, Job S. Olin, A. B. Olin, Job Pierson and Martin I. Townsend were his colleagues and competitors.

Mr. Townsend and Mr. Beach alone remain two wonderfully well preserved specimens of intellectual manhood, with little or none of their natural forces abated, but both still able to cope with the strongest and best men in the profession anywhere. Mr. Beach's exordium in the morning was a masterpiece of eloquence, chaste in language, grand in conception, forcible in delivery, and tender and touching in its reminiscent facts and memories. His subsequent analysis of the testimony was remarkably clear and logical, if not altogether convincing as to the innocence of the accused. He treated two of the elements in the case the gun found in the well and the fact that a bullet forced through it would not pass through the hole in the window pane made by the bullet fired at Mrs. Billings by the assassin-with consummate tact and ability, and therein showed that in the demonstration of his propositions, in clear statement of facts, and in marvellous command of language he has lost none of the fire and the genius of former days The peroration consisted of a few sentences compactly knit together into a plea for justice for his client. Mr. Beach left the case with reluctance. He could no doubt have spoken as many hours more. It is a rare

Justices' Courts, fees, etc., with very full explanatory notes, carefully prepared, expressly for the use of justices, by Montgomery H. Throop, Esq., late commissioner to revise the statutes, and all the unrepealed old laws relating to the subject. Also a complete set of forms for proceedings under the new laws. This will enable justices to use their old books of practice, etc., in connection with the new laws, and will be indispensable for them after September first. Mr. Throop's namo is a guaranty that the work will be well executed, and his familiarity with the subject as codifier will enable him to render it beyond peradventure the best on the subject.

John F. Quarles, a colored lawyer, born a slave, who has practiced law for several years at Washington, D. C., and who, for the past three years, has been United States Consul at Malaga, Spain, was yesterday admitted to practice in the courts of this State by the General Term of the Supreme Court. The motion for his admission was made by Algernon S. Sullivan, who, after stating the facts recited in the papers, said: "Although such motions are usually pro forma, for special reasons I depart a little from that custom. Mr. Quarles is a colored man, and the first of his race who, within my knowledge, will have become a member of the bar in the city of New York. In behalf of that bar, distinguished for character, learning and liberal accomplishments, I welcome Mr. Quarles in advance to his full equality in the franchise of the profession, and I assure him that his entrance to its ranks is observed by the bar with cordial and respectful interest." Mr. Quarles was admitted. This is very unmilitary conduct on the part of the court and the bar. If Mr. Quarles has an appeal pending he will undoubtedly cut off his own ears to ingratiate himself with the court.

Commenting on our recent communication respecting "Ss.," the Albany Evening Times says: As there is but one s in 'scilicet,' wo must agree with the Rochester correspondent in doubting whether 'ss' can be the proper abbreviation for that word. But he is mistaken in asserting that every dictionary states that 'ss' is an abbreviation for 'scilicet.' The Encyclopædia Britannica says: Sc. (scilicet), namely: that is to say. Ss. supra scriptum, sanctissimus senatus. And Savage's Dictionary of Printing says: Ss. semissis. Half a pound (six ounces). The half of any thing. Perhaps, therefore, 'ss.' prefixed to an affidavit or other document may mean that only one-half of it is true. There are a goodly number of learned lawyers among the readers of the Evening Times, and if any of them can give more accurate information on the subject we shall be glad to publish it." Our own impression is that "Ss." is an abbreviation of "silly set," and that while it has a professional application, it does not refer to the lawyers. We have received an Essay on Codification," by J. Hampden Dougherty, of the New York Bar. The author is favorably known to our readers by articles in these columus, and this pamphlet is an excellent argument in favor of codification. It can be obtained from Baker, Voorhies & Co., of New York city.

The Albany

Albany Law
Law Journal.

ALBANY, MAY 29, 1880.

CURRENT TOPICS.

The

sound judgment. If we were called upon to select one of his opinions as a model of expression, reasoning, and good sense we should point to his dissenting opinion in the Brooklyn bridge case. profession are to be congratulated on the certainty. of having a candid, patient, and clear-headed chief in the ultimate court, and Judge Folger cannot but

marked and heartfelt. The public journals, so far as we know, without distinction of party have generously approved his political and judicial career. His funeral was attended by the largest concourse ever assembled on a similar occasion in western New York. In this respect it reminds us of the impressive funeral of Daniel Webster, buried by his friends and neighbors at Marshfield. On Monday morning last the Court of Appeals assembled, and after listening to a memorial by Judge Folger, adjourned one week in respect to the memory of its late chief. Judge Folger's discourse was beautiful in style, tender and heartfelt in spirit, and most generous and most just in its estimate of its subject entirely worthy of the occasion and the writer. The memory of lawyers and even of judges is too often ephemeral, but the memory of Judge Church will be held in affectionate reverence by his contemporaries and effectually preserved by the tradition of their descendants and by his own judicial records. He has left us untimely, worn out, or to use the felicitous expression of Judge Folger, "cut like the diamond with its own dust."

It

The appointments by the Governor to supply the vacancy caused by Judge Church's death seem to meet with unanimous approval among all parties. The appointment of Judge Folger was one that was generally hoped for and expected. Judge Folger is a man of very great legal attainments, of large judicial experience, of general scholarship and culture, of a calm and impartial cast of mind, of dignity and purity in private and in public life, and of the most unswerving integrity. He has commanded universal respect during his ten years' service in the court. In point of legal learning he will more than make good the loss of Judge Church. There are few lawyers so learned as Judge Folger, and fewer still who have the command of such felicitous rhetoric in which to convey that learning. has indeed seemed to us that both he and the late Judge Allen were frequently led by the affluence of their legal knowledge and their facility of expression into writing longer opinions than are necessary or useful. The exhaustive treatises which the old Court of Appeals used to publish from the bench are now seldom needed. The day has passed when the profession demand complete examinations and careful comparisons of cases in judicial opinions, and the necessity for such grows every day less. This is the province of editors and text-writers. But the reports of the present court will remain a monument not only to Judge Folger's learning and felicitous expression, but to his logical sense and VOL. 21.- No. 22.

and good will which his appointment has called forth from them, as well as the general public.

Judge Finch is much less widely known. If we are correctly informed he has had no judicial experience, but he is a man of suitable age, of large experience, and has the reputation among lawyers of possessing considerable legal learning, a sound judicial instinct, and an unimpeachable character. Judge Finch has evinced literary abilities of no common order, and has even written some good poetry. This may cause some to shake their heads; but the union of the poetic and the legal sense is not unprecedented. Talfourd was none the worse for having written Ion. Daniel Webster was not a contemptible poct. We do not know that an occasional oasis is objectionable in a desert, nor that justice is the worse for being poetic. Although we have not the honor of Judge Finch's acquaintance, and do not ourselves write poetry -- that is to say, hardly ever and never, never smoke, we must confess that we feel a leaning in his favor from knowing that he is the author of "The Blue and the Gray," and "My Last Cigar." If his law turns out sound it will be sweetened by his poetry, and if it turns out unsound it may be pardoned on account of it.

Our Constitution provides that in case of a vacancy in the office of chief judge of the Court of Appeals, otherwise than by expiration of term, and the temporary filling of the vacancy from among the associate judges, a temporary appointment of associate judge may be made, but the person so appointed chief judge shall not be deemed to vacate his office of associate judge any longer than until the expiration of his appointment as chief judge. If Judge Folger therefore should not be elected to the office of chief judge he will resume his place as associate judge. But if he should be so elected, then there will be a vacancy in the office of associate judge, to be temporarily filled by appointment, and filled by election in the fall of 1881.

In view of the result of the Billings trial it has been suggested that juries should be authorized to render a verdict of "not proven," as in Scotland. The theory of our law is that an accused person is presumed innocent, and that unless his guilt is proven beyond a reasonable doubt he is entitled to acquittal. The theory of the Scottish law is that where the prosecution fail to prove the guilt of the accused beyond a reasonable doubt, but the circumstances cast grave suspicion on the accused, there may be a verdict to that effect, called a verdict of

"not proven. This is the converse in form but the same in effect as the Irish verdict of "not guilty, but we advise him never to do so again." We have always regarded this Scottish verdict as a most unjust and impolitic one. There is no good reason for effectually stigmatizing a man with guilt all through his life when there is no sufficient legal proof of his guilt. There are many cases where circumstances point strongly to the guilt of the accused, but where they do not satisfy the mind beyond a reasonable doubt. There are many cases where it is difficult to see who did the act in question if the accused did it not. There are many cases where there seems to be no motive on the part of any but the accused, but where the motive shown on his part seems insufficient to instigate the act. In all such cases the accused is entitled to a verdict that he is not guilty, and not merely to a verdict that the evidence does not show his guilt. We put this on the ground of justice and policy. We do not say that the verdict of "not proven" is not logically true; but we have no doubt that in effect, so far as the future reputation of the accused is concerned, he might as well be pronounced guilty. In nearly every prominent case the neighborhood of the accused is strongly divided in opinion on the subject before the trial. After trial, if the accused is not shown guilty beyond a reasonable doubt, he is entitled to live in that community without legal suspicion. He should not be condemned to go through life with the incubus of a suspicion that cannot be verified, haunted by the ghost of an unreasonable accusation. We hope never to see the Scottish verdict of "not proven" prevail in this country.

The attention of our State bar is called to a resolution, passed at the convention of judges to revise the general rules of practice, asking that any member of the bar desiring to suggest amendments to the rules should send such proposed amendments to Judge Mullen, at Watertown, before the last Wednesday of May. See 20 Alb. L. J. 280. The convention was on that day adjourned to June 1st, 1880, at the new Capitol, at 10 A. M.

The evidence of the experts in Whittaker's case is simply to the effect that the handwriting of the note of warning is in some respects like that of Whittaker's letter to his mother, and they agree that it is a disguised hand. The evidence of Mr. Southworth, that the note of warning is on a sheet of paper torn from Whittaker's letter, comes much nearer to conviction of Whittaker. Both circumstances are explainable only on the theory of a very ingenious conspiracy. This, it is said, is highly improbable. But so, it must be conceded, is the theory of Whittaker's guilt. There is a palpable motive for the conspiracy in the hatred of Whittaker and a determination to drive him away from the school. There is no motive for Whittaker to have done the act conceivable within ordinary bounds. There is much to indicate that he did not do it; his uniform good conduct and character; his standing

in his studies by no means desperate; his persistent and substantially consistent denials; his calmness, his candor, his willingness to supply specimens of his handwriting; the gratuitous absurdity of his writing the note of warning to himself. It is not at all probable that any jury would convict him on this testimony. But however that may be, there can be and is no difference of opinion among unbiased men, even among many friends of the school, as to the indecent conduct of the case by the West Point authorities. The trial has served to bring the institution into disrepute among lawyers accustomed to impartial judicial investigations, and among all men who love fair play. Our own observations have been addressed to the conduct of the investigation, and have not been founded in any prejudice on the question of Whittaker's guilt except such as grows out of the intrinsic improbability of that hypothesis.

Senator Fowler proposes to increase the salary of the justices of the Supreme Court of the Third judicial district $2,500 annually, to be paid by the counties of that district. Mr. Robertson pro

poses a considerable number of amendments to the Code of Civil Procedure. This is treating the matter in the right way pass it first and amend it afterward. That would be a good rule to apply to the other Codes.

There is some good reading for the legislative "Bill Nye" in Judge Sawyer's opinion in the Chinese labor case, which we published in full week before last, and we reproduce the following extract for the benefit of those who hate the "heathen Chinee" and fear they are ruined by Chinese cheap labor:" "Holding, as we do, that the constitutional and statutory provisions in question are void, for reasons already stated, we deem it proper again to call public attention to the fact, however unpleasant it may be to the very great majority of the citizens of California, that however undesirable, or even ultimately dangerous to our civilization, an unlimited immigration of Chinese may be, the remedy is not with the State, but with the general government. The Chinese have a perfect right, under the stipulations of the treaty, to reside in the State, and enjoy all privileges, immunities and exemptions that may there be enjoyed by the citizens and subjects of any other nation; and under the fourteenth amendment to the National Constitution, the right to enjoy 'life, liberty and property,' and 'the equal protection of the laws,' in the same degree and to the same extent as these rights are enjoyed by our own citizens; and in the language of Mr. Justice Bradley, in the Slaughterhouse cases, the whole power of the nation is pledged to sustain those rights.' To persist, on the part of the State, in legislation in direct violation of these treaty stipulations, and of the Constitution of the United States, and in endeavoring to enforce such void legislation, is to waste efforts in a barren field, which, if expended in the proper direction, might produce valuable fruit; and besides, it is little short of incipient rebellion."

NOTES OF CASES.

N City of Allegheny v. Zimmerman, 10 Pitts. Leg.

In Cur. 14, the Supreme Court of Pennsylvania

held that a liberty pole in a public street is not per se a nuisance. In September, prior to the election of 1876, a liberty pole was erected in the street by a large number of citizens as expressive of their political convictions. The street was sixty feet wide, and the pole stood about eight feet from the curb stone and four feet from the gutter, in front of the house of one Meyers, who participated in its erection. It consisted of three pieces firmly spliced together, and securely held by bands and bolts. It was otherwise secured in place by ropes tied to the chimneys of neighboring houses. It stood for some three or four weeks, when in a severe storm and gale the ropes appear to have broken, and the pole broke off some forty feet above the ground. The upper part fell, breaking into several pieces, one of which struck the defendant in error, a boy about 'eight years old, who was standing on the sidewalk on the opposite side of the street. The court said: "The erection of liberty poles appears to have been almost coeval with the birth of our nation. As the name imports, they were erected to symbolize our liberties, and as a mode of proclaiming that we had thrown off all allegiance to the government of Great Britain. At first they appear to have been used as expressive of concurrence in the principles embodied in the Declaration of Independence. As time passed on they began to be erected by each political party of the country to express its greater devotion to the rights of the people. As the object of their erection was patriotic, and with a view of inciting a spirit calculated to advance the public welfare, they were placed on highways and public squares. The people so desired it. The municipal authorities assented to it. It is a custom sanctioned by a hundred years, and interwoven with the traditions, memories and conceded rights of a free people. Unless forbidden by the authorities it has been considered the exercise of a lawful license incident to citizenship. Hence in this case no permission was asked of the authorities for leave to erect the pole, and no objection was made by them. The travel on the street where it stood was merely local. It did not occupy the street to such an extent or in such a manner that any person complained of its interfering with the public travel. To all appearance the pole was strong and sound. No doubt existed as to its strength. In the view taken by the court below it mattered not if all these facts were proved; and further, that it was well secured; that no person had reason to apprehend any danger in its remaining there, and that it yielded only to the severe gale, yet having broken, the city was liable for the injury sustained by the defendant in error. If it has been a uniform custom for the people to erect such poles in the streets of the city from its earliest history, under the implied assent of the municipal authorities, and if this one was so carefully erected, having due regard to the material of which

it was formed, and the manner in which it was secured, so that a careful and prudent person would have apprehended no danger therefrom, we think it was not a nuisance per se. It is therefore a question for the jury whether it was erected in such a place and manner, and maintained for so long a time, under all the circumstances, as to have created reasonable apprehension of danger." Two judges dissented.

In Macon v. Patty, Supreme Court of Mississippi, 9 Rep. 613, it is held that under the police power of the State the duty of paving and repairing the sidewalk in front of his house may be imposed on the owner. The court said: "It is now well settled, with no dissenting voice, except in Iowa, that a local assessment requiring each lot owner on a single street, or part of a street, to improve the street in front of his property, at his own expense, would be unconstitutional. But the paving and repairing of a sidewalk in front of the owner's property may be imposed on him as a police duty. The police power is incapable of exact definition and of a precise limitation. It seems to be a power to which are referred all governmental acts which are incapable of arrangement under any other distinct head, and which are at the same time justifiable, as internal regulations having in view the facilitating of intercourse between citizen and citizen, the preservation of good order, good manners and morals, and the health of the public. The police power in such cases, having reference only to the health and convenient intercourse of the citizens and general public, it would seem, ought not to be exerted to impose a burden not necessary to the end proposed. The lot owner, when ordered to make or repair his sidewalk, it would appear, has fully complied with his duty when he has used such material as makes the walk dry as a necessary requisite to health, and smooth and firm for the easy and convenient passing of the public. There would be an exception in cities which have adopted regulations to prevent the spread of fires, as to such parts of them as are within the fire limits. Then the requirements of non-inflammable material might be justified. And there would be a further exception in those cases, now common in large cities, where the lot owner had extended his cellar under the sidewalk, or so far encroached on it as to bring into operation another part of the police power which makes regulations for the safety of the public. In such cases the municipal authorities would have the power to prescribe such a superstructure over the cellar or other underlying encroachment as would be permanent and strong enough to insure the safety of the public in using it." But in Gridley v. City of Bloomington, 88 Ill. 554; S. C., 30 Am. Rep. 566, it is held that a municipal ordinance requiring occupants and owners of premises to remove snow from the adjacent sidewalks is invalid. The court say: "It will be conceded the citizen is not bound to keep the street in front of his premises free from snow or any thing else that might impede travel; then, upon