itself inquiry into them. If another return should be duly sent to the board, properly authenticated, and containing the result of the legal action of the board of county canvassers, the State board could canvass it. We think, as a result, that the order for the writ, and the writ itself, should be modified by striking out the provisions requiring a return to be certified by, and to come from, the county clerk of Dutchess county, and issued under his seal, and as so modified the order is affirmed. Dec. 29, 1891. People, ex rel. Daley, v. Board of State Canvassers. Opinion by Peckham, J. ELECTIONS-CORRECTION OF RETURNS-MISTAKE IN NAME OF CANDIDATE.-Votes were returned by the boards of inspectors of an election as having been cast for" David A. Munroe," "D. A. Munroe," and "D. A. Munroe, Jr," which were in fact cast for David A. Munroe, Jr. In every case the sample ballots returned by the various boards of inspectors, and attached to their statement of the result of the vote, showed that the ballots were all printed with the name of "David A. Munroe, Jr.," and in that form deposited in the ballot-box, but that by mistake the printed blauk statements used by the inspectors contained the name variously designated as above stated. Held, that mandamus may issue to the county canvassers requiring them, before canvassing the vote, to send the returns back to the boards of inspection, for correction, but not to compel them, after correction, to canvass the voto. People v. Board, 126 N. Y. 392, distinguished. Dec. 29, 1891. People, ex rel. Munroe, v. Board of County Canvassers of Onondaga County. Opinion by O'Brien, J. Audrews, Finch and Peckham, JJ., disseut. DUTIES OF STATE BOARD OF CANVASSERS. -The election law requires the boards of county canvassers to make certified statements of the result of an election, and file certified copies thereof with the State board of canvassers, and declares that the State board shall upon such certified copies make a statement of the whole number of votes given at such election for the various offices, each of which statements shall show the names of the persons to whom the votes were given, and the number given to each, and shall certify such statements to be correct, and subscribe the same; that upon such statements they shall determine and declare what persons have been, by the greatest number of votes, elected, and make and subscribe on the proper statement a certificate of such determination, and deliver the same to the secretary of State. Held, that the duties of the State board of canvassers are purely ministerial, the only proper evidence to go before them, on which they are to base their determination, being the statements of the boards of county canvassers, and they cannot consider questions as to the legality and conduct of the election raised by protests and other papers sent up to them by the county canvassers. Dec. 29, 1891. People, ex rel. Derby, v. Board of State Canvassers. Opinion by Gray, J. Finch, J., concurs in result. MANDAMUS TO SECRETARY OF STATE TO COMPEL RETURN OF PAPERS.-Though a resolution of the board of county canvassers, transmitted by it to the secretary of State, with a protest against an election, and affidavits and other papers in relation thereto, cannot be properly considered by the State board of canvassers in canvassing the returns as sent up by the county board, mandamus will not lie to compel the secretary of State to cancel the same or return it, and to abstain from permitting it to go before the State board. Dec. 29, 1891. People, ex rel. Sherwood, v. Rice, Secretary of State. Opinion by Earl, J. Andrews and Finch, JJ., concur in result. ELECTIONS-PARK COMMISSIONERS-ELIGIBILITY TO LEGISLATURE-MANDAMUS TO CANVASSING BOARD.— (1) Laws of 1891, chapter 308, providing a public park in the city of Hornellsville, provides for the appointment of a board of park commissioners, to be appointed "in and for the city," by the mayor, and with the consent of the common council, the mayor being also given the power to suspend or remove a member of the board, with the consent of the council. It further provides that no person who holds "any other city office" shall hold the office of park commissioner, and that such officers shall give bond to the city, etc. Their duties are to locate and take by purchase or condemuation lands for a city park, and manage the same, and to pass park ordinances. Held, that a park commissioner is a city officer, within the meaning of the Constitution, article 3, section 8, providing that no person shall be eligible to the Legislature who is an officer under any city government. (2) A court will not graut a writ of mandamus to compel the issuance of a certificate of election to an office to one who is ineligible under the Constitution, though it may be the duty of the board of canvassers to issue the certificate to him on the returns, because they are without power to act judicially in determining his eligibility, and mandamus is only issued to secure or protect a clear legal right. Finch and Andrews, JJ., dissenting. (3) Constitution, article 3, section 10, providing that each house of the Legislature shall be the judge of the elections, returns and qualifications of its own members, does not prevent a court, on application by one claiming to be elected to the Legislature for a writ of mandamus to compel the canvassing board to issue him a certificate of election, from determining whether he is eligible to the office. Finch and Andrews, JJ., dissenting. (4) The board of canvassers, in canvassing an election, act in a purely ministerial capacity, and have no power to inquire into the legality of the election or the eligibility of a candidate. Dec. 29, 1891. People, ex rel. Sherwood, v. Board of State Canvassers. Opinion by Earl, J. INSURANCE-COMMISSIONS OF AGENTS-CANCELLATION OF POLICY.-Agents of an insurance company, entitled by their contract to thirty per cent of the premiums received through their agency, deducted the full thirty per cent on the issue of a policy providing that at any time, on application of the assured, it would be cancelled, and the unearned premium refunded. After the agents' term of employment had expired, they induced assured to cancel his policy and insure in a company for which they had become agents. Held, that they must refund to the company thirty per cent of the amount it refunded to assured. There is no well-supported principle which would enable them to take from the plaintiff the benefit of the contract of insurance it had through them made, and retain the portion of the consideration received by them, and which they had caused the plaintiff to restore to the assured. The question was not one of disability arising out of the fiduciary relation; that had ceased to exist between the parties. It was one founded in contract, pursuant to which the defendants had received compensation out of the proceeds of the transaction measured by the term of indemnity, and by causing the defeat of the operation of the contract of insurance they had created, before its stipulated period expired, and thus requiring the plaintiff to rebate a portion of the premium, they caused a partial failure of consideration of the contract they assumed to perform, and to the extent at least of the amount received by them of the sum which the plaintiff was thus required to refund, they became liable to reimburse it. power of an agent to create rights by contract for his principal includes an implied duty to observe and not The to defeat or destroy them. In legal contemplation the relief of the plaintiff from its contract of insurance was of some value to it at the time the policies were cancelled, although it turned out that no loss would have been suffered if they had continued effectual until the end of the term for which they were issued. Second Division, Dec. 1, 1891. American Steam Boiler Ins. Co. v. Anderson. Opinion by Bradley, J. 6 N. Y. Supp. 507, affirmed. VOIDABLE POLICY RATIFICATION INSURANCE POWERS OF OFFICERS - -CONDITIONS - NONSUIT.-(1) The by-laws of a mutual fire insurance company provided that the president, vice-president and secretary should constitute an executive committee, one of whom must approve each application for insurance before a policy could be issued, and that every application taken by a duly authorized person should constitute a contract of insurance until the applicant was notified of its modification or rejection. Held, that an application by the secretary for insurance on his own property, when approved by the vice-president, constituted a valid contract of insurance. New York Cent. Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85; Voltz v. Blackmar, 64 id. 440: 1 May Ins. (3d ed.), § 125. (2) A policy afterward issued by the secretary on such application, without the previous approval of some other officer, though voidable, does not invalidate the contract of insurance created by the approval of the application. (3) Where the insurance company retains the premium paid by the secretary at the time of making application, and after he has gone out of office and turned over the application with the other papers of the company to his successor, includes the policy issued to him in its report of outstanding insurance, and after the fire requires him to submit proofs of loss, it thereby ratifies the policy. Titus v. Insurance Co., 81 N. Y. 410; Roby v. Insurance Co., 120 id. 510; Hyatt v. Clark, 118 id. 563. (4) Where the affairs of a mutual fire insurance company, of which every person insured by it is required to be a member, are managed by a board of directors, who select all the officers of the company, such officers have power to waive defects and ratify invalid policies of insurance. (5) Where a single policy of insurance covers both real and personal property, a mortgage of the realty alone in violation of the terms of the policy does not invalidate the insurance on the personalty. Whatever the rule may be elsewhere, it is settled in this State that where insurance is made on different kinds of property, each separately valued, the contract is severable, even if but one premium is paid, and the amount insured is the sum total of the valuations. Merrill v. Insurance Co., 73 N. Y. 452; Schuster v. Insurance Co., 102 id. 260; Smith v. Insurance Co., 47 Hun, 30; Woodward v. Insurance Co., 32 id. 365. (6) On appeal from a compulsory nonsuit, no objection to plaintiff's proof can be made that was not stated in the trial court as a ground of the motion for nonsuit. Second Division, | Dec. 1, 1891. Pratt v. Dwelling-House Mut. Fire Ins. Co. Opinion by Vann, J. 6 N. Y. Supp. 78, reversed. JUDGMENT — RES ADJUDICATA — ESTOPPEL.- (1) S. sued B. on an account, and attached certain land. The attachment was dissolved, and action brought on the attachment bond. In the latter action S. answered that B. had agreed to sell her said land, credit for the price to be given on B.'s debt to her, and she prayed for specific enforcement of the contract by way of counter-claim. On the trial evidence in support of the counter-claim was rejected on the ground that by suing on the account without giving credit for the price of the land S. had waived performance of the agreement, and judgment for damages was rendered in favor of B. Held, that such judgment did not estop S. from afterward suing for the specific enforcement of the contract, since the contract constituted neither a defense nor a counter-claim to the action on the attachment bond, and the exclusion of the evidence was therefore proper, and prevented a decision on the merits on that point, though the reason given for its exclusion was erroneous. (2) After entry of judgment in the action on the bond, S. amended her complaint in the other action so as to give B. credit for the price of the land, and gave evidence of the contract. The referee found that the contract was made, but as the credit given extinguished the account sued on, judgment was given in that action for B. Held, that such judgment was conclusive as to the fact of the execution of the contract. (3) Where there have been two adjudications of the same matter between the same parties, with opposite results, the estoppel of one judg ment neutralizes that of the other, and both parties may assert their claims anew. Dec. 1, 1891. Shaw v. Broadbent. Opinion by Ruger, C. J. 7 N. Y. Supp. 293, and 15 id. 159, reversed. MECHANIC'S LIEN-ORDER ON FUND-PRIORITIES.Under the Mechanics' Lien Law (Laws 1885, chap. 342) providing that a materialman shall acquire a lien on 'filing the notice of lien," one to whom the contractor gives an order on the fund due for the work has a right prior to one who thereafter files a lien for materials. Second Division, Dec. 1, 1891. Stevens v. Ogden. Opinion by Follett, C. J. Parker, J., absent. 7 N. Y. Supp. 771, reversed. If in *** no assessment that may hereafter be levied shall be void or shall be vacated because of the failure on the part of a contractor to comply with all the require ments of law or of the contract in respect thereto," and then provides a remedy for such failure, provided the tax payer, within twenty days, take the proceeding mentioned in section 2, which provides: the proceedings relative to any assessment in the city of Albany * * * any fraud or defect in the work * *shall be alleged to exist, ** * the party aggrieved may apply to have the assessment vacated or reduced * to the county judge." Held, that the statute did not authorize the county judge to vacate an assessment levied by the city prior to January 15, 1883, no proceedings having ever been instituted before for that purpose, since such assessments were validated by section 1, and section 2 related only to future assessments. Dec. 1, 1891. In re President, etc., of Delaware & H. Canal Co. Opinion by O'Brien, J. 14 N. Y. Supp. 585, affirmed. * * PARTNERSHIP — DISSOLUTION AND ACCOUNTING. WITNESS-DISCREDITING.-(1) Where plaintiff and defendant had been copartners, and as such had acquired land, the title to which was taken in the name of defendant, and he paid certain mortgages thereon, in an accounting of the partnership he was entitled to credit therefor, though he had afterward incumbered the land by another mortgage. (2) Defendant claimed credit for certain repairs made on the premises. He had employed and paid one S., as agent, for taking care of the premises and making repairs thereon. The accounting had been partially tried by another referee, who died before it terminated. Defendant testified that he had vouchers for payments made for such repairs, and that they were left with the former referee, to whose office defendant had been, but was informed by the person in charge that they had been transmitted to the new referee, and that defendant had not since been able to find them. Held, that defendant's testimony that he paid the items of repairs to S. was competent. (3) It was error to allow plaintiff to state what facts were shown on the trial before the former referee. (4) It was not competent to discredit defendant by asking him if he was under indictment for perjury. People v. Crapo, 76 N. Y. 288; Ryan v. People, 79 id. 593; People v. Noelke, 94 id. 137-144; People v. Irving, 95 id. 541-544. Second Division, Dec. 1, 1891. Van Bokkelein v. Berdell. Opinion by Haight, J. 3 N. Y. Supp. 333, reversed. PARTNERSHIP WHAT CONSTITUTES.-S. and K. made a contract, whereby the former agreed to purchase of a third person certain lots and erect two houses thereon, K. agreeing to make the necessary advances to complete the same above a certain amount to be raised on a builder's loan. It was also agreed that on completion of the buildings S. would convey to K. either one of the houses, or at the option of K., iu case the lots were sold at a price satisfactory to both parties, S. would, after paying all advances, pay to K. one-half the sum realized on the sale, "it being the intent of the parties to equally divide any profits which may be realized by the sale of said buildings.' Held, that the agreement was a mere executory contract of sale and not a partnership. Curry v. Fowler, 87 N. Y. 33. Dec. 1, 1891. Demarest v. Koch. Opinion by Ruger, C. J. 9 N. Y. Supp. 726, affirmed. PARTY WALL-QUESTIONS FOR JURY-OPINION EVIDENCE. (1) In an action to recover half the price of a party wall built by plaintiff under a contract that defendant, when he used the wall, was to pay for half of it, where the objection is made that the wall was improperly built, in that it contained flues which encroached two inches on defendant's portion of the wall, it is proper to ask an architect whether it is customary to build flues in party walls. Smith v. Clews, 114 N. Y. 190; Fettretch v. Leamy, 9 Bosw. 510, 525. (2) Whether the encroachment of two inches by the flues was a substantial defect in the construction of the wall, and whether it prevented defendant from using the wall in the same way that plaintiff did, are questions of fact. (3) It is proper for plaintiff to testify whether he intended to build the wall correctly with regard to flues. Dec. 1, 1891. Hammann v. Jordan. Opinion by Peckham, J. 13 N. Y. Supp. 228, reversed. RAILROADS ELEVATED — ADVERSE POSSESSION DAMAGES. (1) Twenty years' adverse possession of part of the air, light and access appurtenant to a city lot by means of the maintenance of an elevated road in the street in front of such lot is sufficient to give title to such easements by prescription, even though the possession is based on no actual adverse title. Broiestedt v. Railroad Co., 55 N. Y. 220, distinguished. (2) The possession of a street by an elevated railroad company under a charter which provides that any private property used or acquired shall be compensated for by the company is not necessarily subordinate to the street rights of the owners of abutting property. (3) In an action against an elevated railroad company for injury to a lot abutting on the street on which the road runs, the company pleaded title by prescription. The evidence showed that the original entry upon the street was merely experimental; that during the twenty years' possession relied on to establish the title the road had been changed from a cable road to a steam railroad; that the original possession was taken when both parties were ignorant that the maintenance of the road interfered with the rights of the owners of abutting property; and that after the expiration of said twenty years, the company instituted proceedings to condemn the lot-owners' street rights. Held, that the evidence justified a finding that the company's possession was not adverse to the lot-owner. (4) Where some part of the street rights of a lot-owner have been taken by an elevated road operated by a cable, and afterward the cable company's successor changes the road into one operated by steam, and increases the amount of interference with the lot-owner's street rights, the lotowner's acquiescence in the operation of the cable road, even though it has continued for twenty years, does not diminish the damages which he may recover from the steam road for its interference with his street rights. (5) In an action by a lot-owner to restrain the operation of an elevated road, where the court grants in the alternative either an injunction or the payment of damages by the company, such damages should not exceed the compensation to which the lot-owner would be entitled were the proceeding one for the condemnation of his street rights. (6) In such case, damages for injury resulting from the noise of passing trains should not be allowed, since such damages are only recoverable where the injury from noise was caused while the road was maintained without right. Kane v. Railroad Co., 125 N. Y. 164, distinguished. Dec. 15, 1891. American Bank-Note Co. v. New York El. R. Co. Opinion by Finch, J. Ruger, C. J., and Peckham and O'Brien, JJ., dissenting. 13 N. Y. Supp. 626, modified. ELEVATED INJURY TO ADJACENT PREM ISES - DAMAGES. - (1) The fact that the owner of land which is injured by the operation of an elevated railroad in front of it bought the land after the construction of the road does not prevent him from recovering fee damage therefor. Pappenheim v. Railway Co., 28 N. E. Rep. 518. (2) The fact that premises are in the possession of tenants does not prevent the landlord from recovering rental damage from the road. Kernochan v. Railroad Co., 29 N. E. Rep. 65. Dec. 1, 1891. Sterry v. New York El. R. Co. Opinion per Curiam. 14 N. Y.Supp. 958, affirmed. ELEVATED-INJURY TO ABUTTERS-RIGHT OF ACTION-LANDLORD AND TENANT-(1)-An elevated railroad was built in front of property which plaintiff then held as assignee of a lease, which provided that on its expiration the landlord might either buy the tenant's improvements or give him a renewal of the lease. After the construction of the road plaintiff's lease expired, and he took a new lease of the property, and after that he sued the railroad company for damage caused by the maintenance of the road. Held, that he was entitled to substantial damages and to equitable relief, since the new lease was but a continuation of the old one, and his title therefore dated back to his acquisition of the original lease. (2) The fact that plaintiff had sublet the premises, and that his subtenants were in possession, would not bar his right to recover damages from the railroad company. Kernochan v. Railroad Co., 29 N. E. Rep. 65, followed. Dec. 1, 1891. Kearney v. Metropolitan El. Ry. Co. Opinion by O'Brien, J. 13 N. Y. Supp. 608, affirmed. ELEVATED INJURY TO ADJACENT PROPERTY-DAMAGES. Where the operation of an elevated railroad in a street diminishes the rental value of property abutting on the street, the owner of the property may recover from the railroad company the loss sustained by him from the diminution of his rents, although he was not in possession of the property. Kernochan v. Railroad Co., 29 N. E. Rep. 65, followed. Dec. 1, 1891. Hine v. New York El. Ry. Co. Opinion by Gray, J. 13 N. Y. Supp. 510, affirmed. RIGHTS OF REMAINDER RAILROADS - ELEVATED MEN-INJURIES TO INHERITANCE.-The construction and operation in a street of an elevated railway being an injury to the inheritance of the abutting property, an action for damages caused thereby, and to enjoin its further use, may be maintained by the remaindermen of the premises obstructed, Code of Civil Procedure, section 1665, providing that "a person seized of an estate in remainder or reversion may maintain an action founded upon an injury to the inheritance, notwithstanding an intervening estate for life or for years," and section 1681 providing that where, during the pending of an action by a remainderman, “defendant commits waste upon or does any other damage to the property in controversy," an injunction may be granted restraining further damage. Second Division, Dec. 22, 1891. Thompson v. Manhattan Ry. Co. Opinion by Haight, J. 8 N. Y. Supp. 641, affirmed. APPEAL.—(1) In an action to compel the construction of a railroad crossing, an objection that mandamus is the appropriate remedy, when not taken by the answer or on the trial, will not be considered on appeal. (2) Under the Laws of 1850, chapter 140, section 44, providing that all railroad companies organized under the laws of the State shall erect and maintain farm crossings for the use of the proprietors of lands adjoining the railroad, the owner of land adjoining the road on but one side has a right to a crossing such as may be necessary for him to reach his property. (3) Where a railway company organized under the laws of the State leases its property to a foreign company, and by a covenant in that lease the latter expressly agrees to perform all things in connection with the road which the lessor might be required by law to perform, the lessee must maintain farm crossings as required by Laws of 1850, chapter 140, section 44. (4) Laws of 1850, chapter 140, section 44, providing that railway companies must maintain farm crossings, is not to be limited to crossings solely for agricultural purposes, but is deemed to include crossings to remove the natural products of the land, such as stone and minerals. Second Division, Dec. 1, 1891. Buffalo Stone & Cement Co. v. Delaware, L. & W. R. Co. Opinion by Follett, C. J. 7 N. Y. Supp. 604, affirmed. INJURIES ΤΟ PERSONS ON TRACK-CONTRIBUTORY NEGLIGENCE. Plaintiff while walking along defendant's tracks looked both ways before he stepped on the first track, but looked no more toward the west, from which direction he knew the train would come, and was then about due. He crossed the first and second tracks, and walked toward the east between the second and third tracks, and close to the third track, on which he knew the train would pass. He had on an ulster overcoat, with the collar turned up, but the air was still and the rumbling of the coming train was distinctly heard by others. Held, contributory negligence sufficient to defeat his recovery. Second Division, Dec. 23, 1891. Scott v. Pennsylvania | R. Co. Opinion per Curiam. 9 N. Y. Supp. 189, reversed. The SALE-RESCISSION-FRAUD-INSTRUCTIONS. · (1) In replevin by a vendor on the ground that the vendee bought the goods with the fraudulent intent of not paying for them, the evidence showed that the goods were ordered March 7 and delivered March 10. court submitted to the jury the question whether on March 7 the vendee bought the goods intending not to pay for them. Held, error to refuse to charge that if the vendee on March 10 knew, or had reasonable cause to know, that he could not go on in business, he was chargeable with an intent not to pay. (2) Such error is not cured by charging the jury that it is a question for them whether it was enough for the vendee to say that it was perhaps uncertain what day he might be obliged to stop payment, and whether he intended to pay for a large bill of goods ordered six days before his failure, and whether he would be presumed to have known that he must fail when he received the goods. Dec. 1, 1891. Whitten v. Fitzwater. Opinion by Finch, J. 11 N. Y. Supp. 297, reversed. ASSOCIATIONSOF CHARTER.—(1) STATUTE OF FRAUDS-PLEADING RIGHT OF ACTION-REVOCATION Where the bar of the statute of frauds is not shown by the allegations of the complaint, the statute cannot be relied on in defense unless pleaded. Porter v. Wormser, 94 N. Y. 450. (2) The revocation by the general executive board of the Knights of Labor of the charter of a local assembly does not deprive such assembly of the right to sue for and collect debts due to it, since such right springs from the laws of the State in regard to unincorporated associations, and not from the rules and regulations of the order. Dec. 1, 1891. Wells v. Monihan. Opinion by Finch, J. 13 N. Y. Supp. 156. affirmed. FIRST TRIAL TERM OF THE OLD COURT OF CHANCERY OF THE STATE OF NEW YORK, ROBERT R. LIVINGSTON, CHANCELLORHISTORICAL CHARACTERS PRESENT SCENES AND INCIDENTS. HE foregoing, as the readers of the LAW JOURNAL will remember, is the title of a paper from the pen of L. B. Proctor, published in that journal on the 16th instant, and which has elicited much interest and comment by its readers, and by the readers of other journals who have republished it. While I concede the ingenuity, literary beauty and historic interest of the work, and that the judiciary and legal profession of the State of New York are largely indebted to the author for the ability, learning and exactness with which he has perpetuated the history of its bench and bar, and reviewed the opinions pronounced in leading cases, I cannot refrain from expressing my disapproval -I had almost said my disgust-at his attempt to place among the pure and illustrious men who have made the history of our judiciary and of our bar so brilliant, by placing among them a man who, by the almost unanimous verdict of the American people, sanotioned and confirmed by many years, has been pronounced unworthy to occupy a place among them. It is needless perhaps for me to say that I allude to Aaron Burr, whom Mr. Proctor, in his work, places among the great and good men who were present when Robert R. Livingston opened the Court of Chancery for the first time for the trial of causes, but Burr had not fallen into that ignominy which darkens his character and history. Had Mr. Proctor confined himself to Mr. Burr as he appeared as the counsel in the great case before the chancellor, and to a description of what took place in the argument of the case, his production would not have been shaded by what he afterward wrote in the same paper. He unfortunately attempted, I admit with much ingenuity, to show that Burr is a maligned character in American history. “Analytic biography," says Mr. Proctor, "rescues from contempt and dishonor many a name upon which popular prejudice has cast its revilements. We should be happy to see on the pages of analytic, impartial history a schedule or bill of particulars drawn from real facts, containing the faults of many boasted charac ters, contrasted with a bill of particulars of the real faults, not the invention of enemies, of Aaron Burr." A writer of Mr. Proctor's ability and research must understand that no public topic of interest in the personal annals of our country has been discussed with more keen and earnest scrutiny, with more resolute sagacity of justice or with more unresting vigilance than the life and career of Col. Burr. On this investigation and on the evidence adduced upon it, rest the unanimous popular verdict to which I have already alluded, so that the bill of particulars which Mr. Proctor demands of Mr. Burr's faults has already long ago been prepared and published. The qualities which made Burr restless and intrigu ing as a politician gave him success at the bar, but the reputation of a lofty character he could not and did not win in any pursuit. Mr. Proctor's argument that he was the equal of Hamilton as a lawyer and his superior as a scholar is entitled to respect and consideration, though it is not conclusive. The productions of Hamilton's pen exhibit the most profound and accomplished scholarship. It is true that Burr's practice in the State and Federal courts was lucrative and extensive. On this Mr. Proctor founds his interesting description of Burr as a lawyer. With the exception of Mr. Proctor's unfortunate attempt to overturn or set aside the general popular verdict against Burr, his work is, as I have already said, a most admirable production. His description of the scene in the court-room of the old Stadt Huys, with Robert R. Livingston opening for the first time that great Court of Equity, whose chancellors and whose adjudicated cases have enriched the learning of the civilized world, cannot be read without admiration. His description of the personal appearance of that great chancellor who presided, of Hamilton, Burr and Brockholst Livingston, and of their characters, are drawn with inimitable strength and truth. His description of Brockholst Livingston is as true and perfect as it is eloquent and attractive. He says: "The bench and bar of the State of New York will always revere the name of Brockholst Livingston, and this is well, for though he was not so much distinguished by the predominance of any one great quality, as by a union of several of the finest, his knowledge was various and deep. A taste exquisitely delicate and largely exercised was one of his prominent characteristics. His brilliancy as a lawyer was exceeded by his eminence as a judge, and the radiance of lawyer and judge was often paled by the triumphs of his pen.' W. C. L. BOSTON, MASS., January 23, 1892. CORRESPONDENCE. "HUMOR OF THE BENCH." Editor of the Albany Law Journal: Under the above title Mr. Clark Bell, of the New York bar, publishes in that excellent law magazene, The Green Bag, a very pleasant article, in which he pays a fitting tribute to the "versatile editor of the ALBANY LAW JOURNAL," who happens to be the identical distinguished gentleman whom I am now addressing. Mr. Bell's ready and able pen transcribes, on the authority of Mr. Crooke James, the following anecdote: "At the Old Baily it was customary to sentence all the prisoners convicted at one time. On one occasion Baron Graham, in the discharge of his duty, omitted to sentence one John Jones, who had been brought up for that purpose. The learned judge was about to conclude, when the court officers informed his lordship of the omission, whereupon Baron Graham said with great solemnity, 'Oh, I am sure I beg Mr. Jones' par don,' and then gravely sentenced him to transportation for life." Now, we cannot regard Mr. Crooke James as reliable authority in these matters. The cognomen of the overlooked culprit is apparently made up for the occasion, though it will not be denied that the Joneses were numerous in England and in the Old Baily at that time, and possibly some of them may have been christened John. But in 1822 Richard Labor Sheil began the publication of his admirable "Sketches of the Irish Bar" in the New Monthly Magazine, and the sketches were continued for several years. They were very popular, but were never collected and published in book form until 1854, when R. Shelton Mackenzie, at request of Mr. Sheil, undertook to collect and edit the same. Mr. Mackenzie supplied many notes to his collected edition of the sketches, and was in frequent consultation with their author until Mr. Sheil's death in 1851. I think it is fair to presume therefore that Sheil saw the note to which I am about to refer, and which appears in the sketch of Lord Norbury. Besides, Mackenzie, generally careful of his statement of facts. knew Lord Norbury in his lordship's infamous old age, and must have known whereof he wrote. Mr. Mackenzie's note is as follows: "He" [Lord Norbury]" was usually very polite to prisoners. On one occasion, when he had to sentence half a dozen, he had them all brought up, in a batch, and severally naming five of them, pronounced sentence of death. An officer of the court reminded his lordship that he had missed one. The convict was sent for. My good man,' said Norbury, blowing like a grampus, 'I've made a mistake about you, and I really must beg your pardon [puff, puff, puff]. I should have sentenced you with the rest [puff], and quite omitted your name (puff]. Pray excuse me. The sentence of the law is [puff] that you, Darby Mahoney [puff] I really wonder how I came to pass you over-be take hence to prison, and from prison to the place of execution [puff], and there hanged by the neck until you are dead [puff]-I do hope you will excuse my mistakeand may the Lord [puff] have mercy on your soul. That's all, my good man [puff]. Turnkey, remove Darby Mahoney.' It will be observed that the real Darby Mahoney had more wit than the silent, dull, spurious John Jones, for we are assured in the same note that Darby coolly turned, on leaving the dock, and exclaimed, "Faith, my lord, I can't thank you for your prayers, for I never heard of any one that throve after your making them!" It is further alleged that " Norbury, who relished a retort, actually granted Darby a reprieve before leaving the assize town, and successfully recommended him for a commutation of punishment on his return to Dublin." Now, we call upon our friend, Mr. Bell, to inform us whether his Mr. Crooke James, or my Mr. Mackenzie, supported by Mr. Sheil, has given the accurate statement of facts; for it is very important to our profession and to the world at large to know whether Norbury or Graham be the jester of the judiciary whose sparkling and agreeable wit flashes so much luster upon the dignity and humanity of the ermine. But in my judgment both of these amiable and witty magistrates have been outdone by the gentle and facetious Scotch Judge Broxfield, who, I believe, made no pretensions to greatness. All are doubtless familiar with the story as told by Sir Walter Scott. This Judge Broxfield (though called Lord Justice-Clerk Broxfield) had a bosom friend residing in one of the assize towns, under whose hospitable roof his lordship was in the habit of spending his nights while holding court there. Guest and host were both very fond of chess, and were most expert |