performance of a contract where the decree would be a vain or imperfect one. Tobey v. County of Bristol, 3 Story, 800. So a contract to assign an interest in letters patent for an invention will not be specifically enforced, on bill filed only a short time before the patent expires. Worden v. Graham. Opinion by Scholfield J.

AT

IN THE MATTER OF ROBES.

T the convening of the Court of Appeals on Tuesday last, Mr. David Dudley Field presented the following resolutions of the State Bar Association:

Resolved, That the example of the Supreme Court of the United States and of other courts in our country in retaining the use of the black silk robe when in session is in accordance with the historical traditions of our judicial institutions and agreeable to a cultured public taste.

Resolred, That their Honors, the Chief Judge and the Associate Judges of the Court of Appeals of this State, be and are memorialized on the subject, and respectfully recommended favorably to consider the adoption by them of similar robes when sitting in banc.

In presenting the resolutions Mr. Field said: The New York State Bar Association at its annual meeting, on the 8th instant, appointed me its committee to present to you at the opening of your present session the resolutions of that body, recommending that the judges of the Court of Appeals, while holding court, should wear robes of office. The appointment devolves an agreeable duty upou me because it enables me not only to serve my brethren but to express my own views and wishes. And in doing so, you will allow me, I am sure, to give some of our reasons. A badge of office has been worn by judges the world over. Α custom so general must have a foundation in reason. It is possible, no doubt, for a rude sort of justice to be dispensed without ceremony or sign of office. We can imagine judges at one end of a table and lawyers at the other, all sitting and covered, debating the cases across the table while a promiscuous crowd of suitors surges through the room, and it might happen for a while that the guilty would be punished, the innocent released and the spoiler deprived of his spoil; but we think the scene must end in general confusion and contempt. The simplest rule of ceremony requires judges, counsel and audiences to be uncovered, the judges to sit apart on raised seats, and the counsel to stand while addressing the court or examining witnesses. To this has been lately added that the court and the bar exchange salutations as the judges take their places. Should there be any thing more? The answer depends upon a consideration of what would be the most becoming in the dress, language and demeanor of those who participate in the administration of justice. We think that some insignia of office would befit the high judicial functions which you exercise, and that none can be found so appropriate as the robe, so unostentations, and so conformable to the usage of our forefathers. The robe has been worn by judges from time immemorial. In one of the oldest books of our race the hero is made to boast that his "judgment was as a robe and a diadem." The ermine is a synonym in our literature for spotless justice. In the Palace of Justice of France and in the Westminster Hall of England the judicial function has always been performed in the judicial robe. In our own country the judges of our fathers' times sat in robes. The judges of the Supreme Court of the United States have never entered the chamber where their august functions are performed without wearing their robes of office. Marshall, Story and Nelson wore them. The garment is no more a badge of monarchial than of republican

office. Indeed insignia of office more befit a republican than a monarchial country, for while in the latter they represent the majesty of the throne, in the former they represent the majesty of the people. These insignia tend to inspire respect and to gratify sentiment, and it is sentiment, after all, which sways the world. The flag is the expression of a feeling, an instinct that is universal. "An army with banners" is described in our most sacred record. What but sentiment has adorned these walls, that our highest seat of justice might have fit surroundings. If ever a sordid motive has had part in the raising of this building, it was nevertheless the sentiment of the people which laid the foundation stone and raised the topmost tower; a feeling that the people's house should be worthy of the people; that the place where their great officers discharge their trusts should be not only ample and convenient, but commanding in its decorations as in its proportions.

If our highest court of justice is ever to have any insignia of office, there can be, as I have said, none better than the robe; none simpler or more graceful and convenient. It is the easiest to put on and the easiest to lay aside; it requires no other change of dress; it is simpler than the uniform which officers of the army and navy wear; simpler than the costume which society exacts on many occasions. For these reasons we ask you to wear it, as befitting your great office and consonant with our republican ideas of simplicity and dignity. And when in the long years and generations that will pass, before this capitol crumbles into dust, as often as the door of this chamber is opened to receive you and your ancestors, coming in the name of the law, may all men know that you come to render justice and judgment, without fear or favor, spurning dictation, deriding calumny, and conscious that rectitude of purpose is its own reward.

"Tantum a vobis petimus, ut omnia rei publicæ subsidia, totum statum civitatus, omnem memoriam temporum præteritorum, salutem præsentium, spem reliquorum, in vestra potestate, in vestris sententils, * positam esse defixam putatis.”

*

Chief Judge Ruger on behalf of the court made reply as follows: "We are much gratified by the interest which the resolutions presented induces us to believe that the bar of the State feel in the ceremonial and dignity to be observed by this court in the performance of its judicial duties. Neither can we omit to express our gratification at the selection of one of the oldest and most honored members of the legal profession through whom the Bar Association have communicated their wishes to us. The resolution presented merits and will receive the respectful attention of the court, and will be considered with a view of arriving at that result which will be most likely to promote a dignified and efficient administration of the law."

CORRESPONDENCE.

DISQUALIFICATION OF JUSTICES OF THE PEACE BY AGE.

Editor of the Albany Law Journal:

The State Constitution provides that "no person shall hold the office of judge or justice of any court, longer than until and including the last day of December next after he shall be seventy years of age." It is made a question of considerable practical importance whether this provision applies to justices of the peace. The literal import of the language would seem to include them, as by the Code of Civil Procedure, they are justices of a court, though not a court of record. And they would probably come within the reason of

the law if it were based upon the assumption of incapacity on account of age.

But on the other hand, that judges and justices of higher courts were only contemplated, see 45 N. Y. 812, wherein Folger, J., in delivering the opining of the court, said: "It is palpable that the intention of the convention was to place this limit of age upon the comparatively very extended term which they adopted, and to guard against the possible evil which the lengthened term had alone suggested as possible; " and 78 N. Y. 403, wherein Church, C. J., said: "The disability of age was considered when the question of the extent of the term was under consideration, and in fixing long terms for judicial officers, it was deemed wise, instead of prohibiting the election of those who were too old to serve the full period, to limit the term in such cases to the length of time they could serve." And chapter 86, sections 8 and 9, of the Laws of 1870, passed to effectuate said constitutional provision, and requiring the filing of certificates of age, etc., wholly omits justices of the peace.

This question may be an open one. There is no authoritative decision determining it that I have seen. J. B. DALEY.

PRATTSVILLE, N. Y., Jan. 10, 1884.

[See 23 ALB. LAW JOUR., 181. ED.]

INJUNCTION IN SUMMARY PROCEEDINGS.

Editor of the Albany Law Journal:

In 29 ALBANY LAW JOURNAL, page 6, Mr. Baker gives a very excellent, resumé of cases relating to "Injunction in Summary Proceedings." Digesting cases upon any subject is of little use, unless out of it some clear and well defined rule of law can be deduced.

In the light of section 2265, Code, will Mr. Baker answer this query?

Within well-settled legal principles, will an injunction be granted to restrain an action in ejectment, when the defendant has a defense, legal or equitable, that he can set up to defeat the action on its merits, on the grounds that he has such defenses? If the answer be "nay," then in case summary proceedings were commenced instead of ejectment in a case of landlord and tenant, where such a defense might be set up if it were an action of ejectment, will an injunction be granted, on the sole grounds that such defense cannot be set up under section 2444, Code, in the face of the prohibition of section 2265 ?

Again, since by section 2444, the Legislature has seen fit to limit the defenses in summary proceedings, does that clothe the courts with jurisdiction to disregard the prohibition of section 2265 on account of the infirmity of the defendant?

Jessuram v. Mackie, 61 How. Pr. 261; 1 Hun, 716; 20 id. 313; Sherman v. Wright, 49 N. Y. 227; Savage v. Allen, 54 id. 458; Hoppough v. Struble, 60 id. 430.

I fail to find in the opinion of Judge Allen in 49 N. Y. 227, the last conclusion given by Mr, Baker. Respectfully,

H. R. R. Co., respondent; Horace S. Whiting, appellant, v. John Edmunds and another, respondent; Eleanor B. King, respondent, v. William MacKellar, appellant, James H. Cronkhite, respondent, v. Jonas Cronkhite, appellant; Shepard F. Knapp, receiver Bowling Green Bank, respondent, v. Walter Roche, appellant; James N. Paulding, trustee, etc., appellant, v. Chrome Steel Co., and others, respondent; Colton W. Bean, respondent, v. Laurent J. Tonnele, appellant; Edson F. Emery, respondent, v. George Baltz and another, appellants; George C. Genet, appellant, v. City of Brooklyn, respondent.- -Judgment affirmed with costsWilliam Kelley, appellant, v. Anna C. Devlin, adm'x, and others, respondents; Philip Queenlaw, respondent, v. Jeremiah P. Russell, impleaded with Mayor, etc., appellant; George L. Whitman et al., respondent, v. Abel Horton, appellant; William H. Vosburgh, respondent, v. Lake Shore & Michigan Southern Railway, appellant; George W. Weld and another, respondents, v. Bernard Reilly, sheriff, elc., appellant; Irving G. Vann, ex'r, etc., of Henry A. Dilley, appellant, v. Simeon Rouse and others, respondents; Charles E. Whemple et al., appellants, v. David M. Hildreth, respondent; John H. Patrick, respondent, v. William F. Shaffer, appellant; John McMasterson, appellant, v. Caleb E. Whitaker and another, respondents; Caleb E. Whitaker, respondent, v. Imperial Shirt Manf. Co., appellaut; Oliver P. C. Billings, receiver, appellant, v. George C. Rob inson, respondent; Daniel M. Porter v. Isidor Wormer and others, respondents; People, ex rel. Thomas Keech, appellant, V. Hubert O. Thompson, commissioner, etc., respondent; Bank of California, respondent. v. William H. Webb and another, appellants.Appeal from so much of General Term, reversing order of confirmation and appointing new commissioners, dismissed. Order of General Term denying motion of land-owners to dismiss appeal, affirmed. Order of General Term so far as it awards costs to the company, and judgment for such costs, reversed, neither party to have costs against the other appeals in this court-In re application of New York, West Shore and Buffalo Railway Company, etc., of Walsh; Same v. Chrystie.Order of judge setting aside verdict at Circuit in favor of plaintiff, and judgment of General Term affirmed with costs-Oliver W. Marvin, appellant, v. Augustus Prentice, respondent. Judgment and order affirmed with costs Edward L. Bennett, respondent, v. William Whitney, street commissioner of Binghamton, appellant. Order reversed, without costs to either party in this court-Eliza C. Hallenbeck and another, respondents, v. Bernard Donnell, appellant. Judgment reversed, new trial granted, costs to abide the event, unless defendants Chester S. and Mary A. Bates stipulate to allow judgment in favor of plaintiff herein, as ordered by the court at Special Term, modified so as to reduce the recovery for principal to $3,803.23, with interest thereon at the rate of seven per cent per annum from May 10, 1880, to May 10, 1881, and at six per cent thereafter, and in case such stipulation be given, the judgment as thus modified affirmed, without costs of the appeal to either party-Nathaniel U. Bennett, appellant, v. Mary A. Bates and another, impleaded, respondents.—Judg. ment of General Term reversed, report of referee affirmed with costs - Pascal P. Pratt and another, survivors, etc., respondents, v. Wm. A. Stevens and others, appellants. Judgment affirmed with costs, without any prejudice to such relief as the plaintiffs may upon sale be entitled to have in this action against him-John B. Cornell and ano., appellants, v. Ashbel H. Barney and ors., respondents.

The Albany Law Journal.

ALBANY, JANUARY 26, 1884.

CURRENT TOPICS.

not elevate the individual, but it would elevate the popular idea of law and of the court. Else why have any forms at all? Why have a formal proclamation on opening court, for example? The argument that judges should not wear gowns because some judges are notoriously unlearned, weak or corrupt, is certainly very irrelevant and inconclusive. That is a

ma

the Denver Law Journal do not approve of gowns for judges. And yet our good friends, who cannot be any thing less than "colonels" or jors "in their own country we beg pardon if we have not put them high enough—would scorn to be seen on State occasions without their regimentals. Why this distinction? The Review says, in its "Notes," which, by the way, are the most readable law journalism that comes to us that "the proposal that the judges should wear gowns in order to put them in harmony with their surroundings will probably not be adopted. If judges were appointed to hold their office during good behavior, as the judges of the Federal courts, the suggestion would not be inappropriate. But there is something so entirely out of keeping between a gowned judge, nominated to his office by a political caucus, and elected by a party vote, and the process by which he arrived at his dignity, that the very suggestion moves laughter. With what utter contempt would Boss Kelly look in upon a bench of elective judges robed in gowns!" We think just the other way. We think that gowns would lead such men to took upon courts with less familiarity and contempt. The Journal says: "We ask (purely for information) will the putting of judges into gowns make them abler, more learned, and more honest?" Assuredly not, but it will make them more respected by the mass of mankind, who view forms with awe. But the Journal continues: "If the judge be one whose character and personal qualities do not demand such reverence, no solemn, black robes, no horse-hair wig, no ermine, and no fines for manifesting that want of respect which is produced by the conduct and character of the official, will ever compel respect for the office, or seat he occupies. We may regret that our people are so constituted, but such is the fact. This condition of things cannot be improved by adopting foreign customs. Our people have an innate abhorrence of show and shams. Pomp and parade in courts, and elsewhere, would create a ripple of curiosity and attract crowds for a few days. It would not tend to increase the proper respect for our courts of justice in their present condition, when the judicial bench is, in many cases, occupied by men notoriously unfit for their position, rendering their courts places wherein not justice, but injustice, is judicially administered. We cannot see that the adoption of the gown, as a judicial robe, will remedy this evil. Such a dress might flatter the vanity or increase the self-conceit of a shallowpated occupant of the judge's chair, but it will add nothing to the respect which his decision will command." The error that the Journal falls into is in treating the matter as personal. The gown might VOL. 29-- No. 4.

Still it

but no argument against putting gowns on the judges. It would not hurt our western communities if their courts were held in higher respect. We Better have should then hear less of lynch law. judges in gowns than lynchers in masks. is true, as the court observe in Dyett v. Pendleton, 8 Cow. 737-(as a correspondent points out to us)— that "judicial robes can never inspire confidence if the sense of right and wrong is not manifested."

They are also afraid of gowns in Italy. A judgment has been given in an interesting case before the Court of Appeal at Turin. Miss Lydia Poet, who has obtained a doctor's degree in law, was refused admittance to the roll of advocates for reasons among which are the following: "The Italian law has made no disposition expressly consenting to the exercise of the profession of advocate by women, and it has always regarded that profession as exclusively pertaining to men. The admission of women would be extraordinary and contrary to custom, and is besides expressly forbidden by an article of common law (article quoted.) It would be an unpleasing sight to see a woman pleading amid the tumult of a public court, and sometimes obliged to treat ex professo questions that common decency forbids even men to discuss in the presence of honest' women. The sight of the toga worn over the strange and whimsical dress which fashion often imposes upon women would imperil the gravity of the judges. Every time the balance of justice leaned to the side of a prisoner defended by a pretty female advocate the judges would be exposed to suspicion and calumny." The Court of Appeal also held that that was neither the time nor the place to discuss the equality of women and their right to exercise all professions and offices hitherto occupied exclusively by men. It is said that a lady recently asked one of our judges if they were going to put on gowns. He said yes. "But when?" "At night," was the reply.

The intelligence of the death of Mr. John William Wallace, of Philadelphia, will be received with regret. Mr. Wallace was well known to the profession as the former reporter of the United States Supreme Court, twenty-three volumes of which reports, commencing in 1864, he edited. He was also the author of that delightful and instructive work, "The Reporters." He also edited six volumes of "British Crown Cases Reserved." Mr. Wallace was born in Philadelphia, February 17, 1815. His father was John Bradford Wallace, who was a distinguished legal contemporary of Binney, Sergeant and

Chauncey, and his mother was a sister of the eldest Horace Binney. Mr. Wallace was graduated by the University of Pennsylvania in 1833, and was admitted to the bar October 27, 1836.

That was a very clever hit of the Canada Legal News concerning the alarm felt by the English bench at the innovations imported from this country and proposed by the Lord Chief Justice. The News says: "His brother judges even seem to have caught the alarm, and they hold out sturdily against any hint of innovation, for we read that at a meeting of the English judges, held at the Royal Courts of Justice on Tuesday, December 11, the proposal of Lord Chief Justice Coleridge, that the courts should either sit half an hour earlier in the morning or the same time later in the afternoon, was voted down by a large majority.'"

the case of Hallenbeck v. Danell, the Court of Appeals yesterday handed down a decision reversing an order appointing a receiver upon those grounds, and sustaining and approving the position of Mr. Leavitt. I have not yet seen the opinion, but the order must, I apprehend, have been reversed upon the ground that the court had no power to appoint a receiver. I was counsel for the appellant in the case. I am under much obligation to your valuable JOURNAL for the article named, for therein I first got the idea on which I took my appeal." And a gentleman writes us from Honolulu: "I like the JOURNAL very much. It is a weekly comforter to me in this place, where I miss some home legal privileges. For two years past I have been second associate justice of the Supreme Court of the islands, and in several cases I have found the JOURNAL very useful to me. I have usually approved your personality in it. Trusting you may long remain its editor," etc.

In England the last year seems to have been prolific in legal literature. The London Law Journal says: "In the past year 139 new books and 84 new editions are attributed to law jurisprudence, etc,' as against 52 and 23 respectively in the year before. In other words, more than three times the law books were published in 1883 than in 1882, an increase unequaled in any other class of literature. Probably the term 'law jurisprudence, etc,' has been more liberally construed in 1883 than in 1882, as we find that only 144 new books and editions were reviewed in these columns last year, as against 121 the year before, the latter number being 46 more books than were attributed to 'law jurisprudence, etc,' in that year, while last year the number reviewed is less by 84. Still there has, no doubt, been a considerable development. There may be other causes for it, such as the enterprise of new publishers until recently unknown to the precincts of Chancery Lane; but the main cause is that the junior bar have largely taken to book-writing as a resource. An increase in legal literature is a clear sign of a decrease in legal business." We believe that the year was unusually productive of legal literature in this country also, and perhaps from the same cause. In the last two volumes of this journal we find 70 notices of new text-books.

A correspondent writes us: "In the ALBANY LAW JOURNAL of April 8, 1882, you published an article written by John Brooks Leavitt, in which he contends that there is not under the provisions of the Code of Civil Procedure any power in the Supreme Court to appoint receivers of rents and profits in mortgage foreclosure proceedings for inadequacy of the security and insolvency of the mortgagor. In

Sometimes

The annual address by the president of the Illinois State Bar Association, delivered on the 3d inst., by Mr. William L. Gross, is a very pleasant and graceful production. Mr. Gross deplores the reluctance of lawyers to associate with their brethren: this is the text of his discourse. He says, of the lawyer's tendency to withdraw into himself: "This tendency, of which we are speaking, is manifested differently in different individuals. shelter is taken behind the lawyers' books and briefs, and there is little or no disposition to cultivate the graces and amenities of social life. To such a man his books become his constant companions and friends, and he soon learns to turn to them with the eagerness and confidence of a lover to his mistress. In imagination he feels himself surrounded by the noble minds that have honored and adorned our profession; and if at times he feels kindling within him the fires of an ambition that would lead him to emulate their virtues and win the imperishable renown which is theirs, while the thought may ennoble and purify his spirit, its outward manifestation would be a still greater shrinking from intercourse with the living, and he would become a social recluse. That man would feel better acquainted with Marshall, Kent, Story and Walworth than with the justices of the Supreme Court of his own State; and he would find keener enjoyment in contemplating a dead Wirt, Webster and Choate, than in listening to the impassioned eloquence of a living Storrs, Ingersoll or Weldon." Mr. Gross regrets this, but we can hardly think it strange that a reflective lawyer should prefer to resort to Webster and Choate than to the greatest of our living advocates, for they were models for all time; and so the study of Marshall, Kent and Story may instruct smaller men how to be good judges and commentators. Mr. Gross says there are 5,000 lawyers in Illinois.

IN

NOTES OF CASES.

'N Rawson v. Spangler, Supreme Court of Iowa, October 19, 1883, 18 Cent. L. J. 29, it was held that a wife, deserted by her husband, without her fault, and left with no means of providing for her family of five young children, except a very limited amount of money, clothing and food, has implied authority to sell the personal property of her husband, to obtain money to meet her necessities, although they are not then in actual suffering. The court said: "Now, while it does not appear that all the food above-mentioned had been consumed at the time of the sale of the property, and it does not appear that the children were suffering for clothing, the stock of food and clothing appears to have been small; and if Mrs. Perkins had no way of providing for her family as we think the evidence showsbut by resorting to a sale, she was not, we think, so far as the question of need and destitution were concerned, bound to wait until the destitution had become complete. If she was to sell at all, it was proper for her to avail herself of the opportunity to sell when it was offered. One fact not found by the court was proven by undisputed evidence, and that is, that the cow was vicious; that Mrs. Perkins was unable to milk her, and regarded her as dangerous to the children. We come then to the legal question whether the circumstances being such as above set forth - Mrs. Perkins could be deemed to have authority to sell. The wife's implied agency to act for her husband differs under different circumstances. She may ordinarily contract for domestic supplies, and if abandoned by her husband without her fault, she may always pledge his credit for necessaries. If left by him in the management of his business, she may make the contracts reasonably incident to its management. In the case at bar, the wife was left by the husband to provide for the family as best she could out of such means of support as they had. One of the means of support was the cow, which was not useful to her because she was vicious. We think it clear that under the circumstances she had implied authority to sell her." The Central Law Journal pronounces this decision "entirely novel."

In Clay v. Currier, Iowa Supreme Court, December 14, 1883, 17 N. W. Rep. 758, there was a curious question of the power of the court to supply an omission of a word in a chattel mortgage. The court said: "The mortgage under which the plaintiff claims is defective in the description. It is in the words: All the cut and growing and having grown on the W. of the N. E. 1,' etc. The plaintiff contends that while the description is not precisely as it should be, it is not unintelligible, nor when properly construed uncertain, but that it means all the crops cut, growing and grown on the land. It is evident enough, upon looking at the description, that a word of some kind was omitted by mistake. If we could discover with reasonable

certainty what the word is, we might feel justified in supplying it by construction. But we are not able to discover with any certainty what word was intended. We know of no rule which would justify us in holding that the word omitted is the word of the broadest signification which could be properly used in connection with the other words. We cannot say why we should supply the word 'crops' rather than hay or corn or something else. In our opinion the description is fatally defective."

* * *

But in Baird v. Boucher, 60 Miss. 326, it was held that in a will which disposes of the testator's real and personal property, the use of the word "rent," by clerical error, in the clause: "I now will and bequeath to my loving wife all my rent and personal property," will not be allowed to alter the whole instrument which demonstrates that "real" was intended. The court simply remarked: "Noscitur a sociis." Which shows the advantage of being in good company.

In Hoban v. Piquette, Michigan Supreme Court, December 21, 1883, 18 N. W. Rep. 797, we find some amusing reading on the subject of the testamentary capacity of Miss Campau. Judge Cooley writes a very interesting opinion, in the course of which he says: "There is no rule of law which prescribes average capacity for a testamentary act; if there were it would disable a large portion of every community perhaps one-half of it." He

continues:

"A woman even though wealthy may wear a cheap garment in the privacy of her own home if she pleases, and she is not to be judged as to 'sound senses' on two casual views of her face, even though she does, when some great calamity is impending, like that of the death of an only sister, seat herself upon the stairs with her face to the wall. Some of the evidence it is difficult to treat with seriousness; and one might suppose that the circuit judge, fatigued with the long trial, admitted it from a sense of humor, and by way of recreation and relief. This is particularly the case with the evidence of Mr. Larned, who at the ripe age of sixty-two gives to court and jury the criticisms sage he mentally made of the powers and capacities of his elders at that period of life when others of corresponding age would be just entering upon easy lessons in reading and spelling. If Miss Campau could be supposed to have known that she was being made the subject of such profound judgments by youthful critics on the one side and such summary judgments by strange nurses on the other, her shyness, and hanging down of the head, and avoidance of human society would not seem SO mysterious or so unreasonable as it appears to contestants now." "Possibly the jury might not have been so strongly impressed as the witness was with the evidence of a clouded' or 'infirm' intellect afforded by the want of interest of a young woman of sixteen or eighteen in the play of boys of six or seven." Some of the evidence of incapacity is