until they do so, we will cling to the "old grand jury." Grand juries are being drawn and impaneled, and are presenting criminals in this state as they always have done. CESEY.

THE THOMPSON-ERIE LITIGATION.

NEW YORK, Feb. 28, 1871. Editor Albany Law Journal: Dear Sir-In the JOURNAL of the 25th inst., Mr. Frank Thompson asserts that I entered an order in the case of Thompson against the Erie Railway Company without the authority of the court. The facts are simply these: On the argument of the appeal in that case, I made a motion on the merits to restore the affidavits which Judge Rosekrans had struck from the file. Before I had said a dozen words on the merits of the motion, Mr. Emott, the senior counsel, opposed, interrupted me by expressing his entire willingness to have these affidavits restored. I objected strongly to the matter passing sub silentio, and insisted upon an argument, but into this Mr. Emott persistently refused to enter, and expressly and unconditionally consented that the affidavit should be restored to the files. I then, in the presence of the ⚫pposing counsel, drew up an order in the precise language to which Mr. Emott had expressed his assent, and handed it to the clerk, making a special request that he would show the order to Judge Miller, the presiding justice. He said that this was not necessary or usual, but I urged him to do so. More than an hour afterward he returned me a certified copy of the order; but I did not know then, and do not know now, whether he showed it to the court. Every lawyer, who is familiar with the practice in the third judicial department, will see that I not only conformed to the usual practice, but even went out of my way to make quite sure that the court should fully understand what was done. And it was perfectly understood by every one then present at the bar that the restoration of those affidavits was absolute, and that the whole question was disposed of.

By giving this express consent in open court, Messrs. Emott and Thompson not only made it impossible for me to argue the question, but also gained the additional advantage of preventing me from arguing the alternative branch of my motion, which was, in case the court should deem that the affidavits on my side were not relevant, that it should also strike out Mr. Thompson's affidavit as irrelevant and scandalous, which it certainly was, if mine was, inasmuch as he devoted one hundred and ton folios of his affidavit to insinuations against the character and practice of the defendant's counsel.

It does seem to me that we ought to have had an opportunity to be heard on the merits, on the resettlement of the order, which was not granted; and both Judge Rosekrans and the general term have passed upon the questions which are personal to me, without giving me any opportunity to be heard in open court. On Monday, February 13th, Messrs. Emott and Thompson were both in Albany. Mr. Emott had come up with me in the same car from New York, knew that I was going to Troy, and met other counsel of the Erie Railway Company at Albany, who argued with him an important case in the court of appeals. Stepping over to the general term, Messrs. Emott and Thompson then applied to the court for a resettlement of the order concerning the affidavits, without giving the defendant's attorneys the slightest notice, and without giving a hint to the defendant's counsel, in the court of appeals, whom they had just left, that they had any such intention. This is a kind of practice which, to the best of my knowledge, flourishes only in the pure air of the country, and is not tolerated in the corrupt tribunals of wicked cities.

I have grown up under the delusion that orders made upon notice, whether granting or denying a motion, ought not to be made without giving an opportunity to both sides to be heard upon the merits; but, under judiclous teaching, I shall learn better.

Now that Mr. Thompson has undertaken to discuss the question in public (and I congratulate him that he has at last put his name to his published communications), it would seem that he might with great propriety have met the charge contained in the obnoxious affidavit, namely, that he purposely suppressed facts within his knowledge, and perverted information which he had received, for the purpose of impeaching my character before Judge Learned. I have never been fortunate enough to get an answer from him to this charge. I put the question to him very civilly, in the presence of Judge Bockes, and renewed it in the presence of Judge Rosekrans, who was willing to allow him a week for the purpose of putting in further affidavits. I consented at the general term that he should put in any paper which he desired to present in relation to the subject. I renew the offer now. But I do not think it will be accepted, because, if it is, I shall show that Mr. Thompson, when he made the affidavit, charging me with falsehood, had even stronger evidence in his possession of the truth of my statements than I had supposed when the affidavit was made before Judge Rosekrans, and that it was impossible that he could have any doubt upon the subject. So far as I can understand the judicial decision in this case, it is lawful, on a motion to strike out an answer as sham, for the plaintiff's attorney to charge the defendant's attorney with all the crimes on the calendar, for the purpose of showing that he is not likely to tell the truth in his answer; but it is unlawful for the defendant's attorney to assert or prove, directly or indirectly, that the person, on whose unsupported testimony these crimes are charged, is unworthy of belief. Yours, respectfully,

T. G. SHEARMAN.

BOOK NOTICES.

A Digest of New York Reports, from the organization of the state to the year 1869, containing the decisions of all the courts of the state, except such as are digested in Clinton's Digest, second edition; with references to the statutes. Vol. III. By William Wait, counselor at law. Albany: William Gould & Sons. 1871. With this volume the main body of Wait's Digest is completed; but the table of overruled and criticised cases, which was promised, has been omitted, owing to the fact, we are told in the preface, that the work has extended so far beyond the author's anticipations. A supplemental volume is, however, shortly to be issued, containing this omitted table, and the gist of the cases decided since the beginning of 1869.

In our notices of the former volumes, we expressed our approval of the general character and execution of the work; and there is nothing in the present volume that inclines us to retract any word of commendation. But, while acknowledging its undoubted merits, we are conscious of its defects; and though these defects are such as not greatly to detract from the usefulness of Mr. Wait's labors, they deserve notice from the reviewer.

Our attention is first attracted, on turning over the pages of either of the volumes, by the fact that so many titles are inserted for no obvious purpose. For instance, on page 579 of the first volume, we find the title "Defini tions," a very important and suggestive title, and under which, one would suppose, should be found much valuable information; and yet it stands there "un wept, unhonored and unsung;" not even a cross reference pointing us to any other part of the work. So, too, the following titles are similarly barren of any line, reference, or even hint of use: "Cul de Sac;" 'Land;" Maxims;"" Rescinding;" "Slung Shot."

The arrangement of principles under appropriate titles is one of the indispensable virtues of a digest. We are sorry to say that it is a virtue which the work before us does not always possess. Take for illustration the following principle:

"Where, on the appointment of two commissioners of highways to fill vacancies, the appointment fails to designate the class to which the appointees shall respectively belong, the first named is to be regarded as appointed to the first class."

This is very properly placed under the general title, "Highways." But this general title has several subtitles, and under which of these would one naturally look for and expect to find it? Clearly under that of "Overseers and Commissioners of Highways." He would not find it there, however, for our author has placed it under the title, "Laying out Roads," etc. Again, under the general title, "Summary Proceedings to Recover Land," we find the following principle placed under the sub-title, "Effect of Landlord's Recovery."

"The decision of a justice in summary proceedings is reviewable by certiorari, under 2 R. S. 516, 47, or by appeal under Laws of 1849, ch. 292, § 5, at the option of the aggrieved party."

Considering the fact that there is a sub-title, "Certiorari; Appeals; Restitution," one can only wonder how the above principle got into such strange company. We had marked for notice several similar instances of misarrangement, but have not space to present them. The difficulty has occurred in this wise: two or more distinct points are frequently decided in the same case, and the abstracts of these several points have not been separated and classified, but are given in conjunction. The same defects exist in the index, which, though "copious," is at best but an indifferent affair.

Perhaps the most valuable portion of the work is that devoted to "Pleadings and Practice." Over three hundred and fifty pages are occupied by these titles, the cases under which are arranged in a clear and excellent manner.

TERMS OF COURT FOR MARCH.

SPECIAL TERMS AND CIRCUITS.

1st Monday, special term (motions), New York, Brady. 1st Monday, special term (chambers), New York, Cardozo.

1st Monday, circuit and oyer and terminer, New York. 1st Monday, circuit and oyer and terminer, New York, Sutherland.

1st Monday, circuit and oyer and terminer, Kings, Tappen.

1st Monday, circuit and oyer and terminer, Dutchess, Gilbert.

1st Monday, special term (motions), Kings, Pratt. 1st Monday, circuit and oyer and terminer, Jefferson. 1st Monday, circuit and oyer and terminer, Erie, Barker. 2d Monday, circuit and oyer and terminer, Schuyler, Boardman.

24 Monday, circuit and oyer and terminer, Genesee, Talcott.

2d Tuesday, circuit and oyer and terminer, Caldwell, Potter.

2d Tuesday, special term, Tioga, Parker.

3d Monday, circuit and oyer and terminer, Westchester, Gilbert.

3d Monday, circuit and oyer and terminer, Schenectady, Bockes.

3d Tuesday, special term, Jefferson, Mullin.

4th Monday, special term, White Plains, Gilbert. 4th Monday, circuit and oyer and terminer, Yates, Johnson.

4th Monday, circuit and oyer and terminer, Herkimer. 4th Monday, special term, Erie, Talcott.

Last Monday, circuit and oyer and terminer, Tompkins, Murray.

Last Monday, special term, Monroe, Dwight.
Last Tuesday, special term, Albany, Ingalls.
Last Tuesday, special term, Cortland, Parker

the 7th day of February, 1871, present: Hon. Theodore Miller, presiding justice; Platt Potter and John M. Parker, associate justices.

The following rule was adopted:

That the attorney for either party to an appeal from an order shall file with the clerk of the county in which the term of the court for which notice of argument of such appeal has been served is to be held (on or before Tuesday of the week preceding the term), a note of issue in which shall be specified the day of the service of the notice of appeal on the respondent or his attorney. The clerk shall prepare a calendar of the cases in which such notes of issue shall be filed, and shall enter the cases thereon in the order of the time of the service of notice of the appeal. No appeals from orders will be heard unless notes of issue have been duly filed and entered on the calendar.

LEGAL NEWS.

Chief Justice Chase meditates a trip to Europe for the benefit of his health.

In New Jersey the supplement to the act concerning divorces, placing the children of divorced parents under the charge of the chancellor, has passed both houses.

Hon. Charles Gray, of Herkimer, in this state, a lead. ing lawyer, and well known as an able and conscientious judge, died on the 22d instant, at the age of seventy-four years.

David R. Gerald, a well-known San Francisco lawyer, died in that city suddenly on the 24th inst. The deceased was a native of Rhode Island, and a graduate of the Albany Law School.

Judge James V. Campbell, of the supreme court of Michigan, whose present term of office will soon expire, has been re-nominated to that position by the Republicans of that State.

It has been announced to the senior class of Trinity college, Hartford, that the Hon. W. D. Shipman, judge of the United States district court, will, during the present term, deliver a course of lectures on the Law of Nations.

The judges of the supreme court of Maine have expressed the opinion that the legislature of that state has no constitutional authority to pass a law allowing towns to aid manufacturing establishments.

Two counties in Virginia-Buchanan and Wise-have not a resident lawyer within their limits. The legislature found it necessary to pass a special law legalizing the election of a commonwealth's attorney for their benefit.

A novel event for Santo Domingo has just occurred in the supreme court there. Upon an application from an American here, Col. William McMichael, of Philadelphia, formerly of Gen. Thomas' staff, who accompanied the commission, was admitted to plead in a case of considerable magnitude as principal counsel, and won it.

The evil of lawyers' loquacity has met with a great blow in New Orleans, for "the supreme court" there has ordered that all arguments made before it shall not exceed thirty minutes in length-a proceeding slightly Procrustean. Wherefore, we find the New Orleans Times commending gentlemen of the green bag "to the study of Tacitus for narrative, and of John C. Calhoun for terseness."

A bill is before the Pennsylvania senate creating a court of appeals, consisting of three judges, to have exclusive jurisdiction of all matters now vested in the supreme court sitting in banc, relating to equity, of appeal from the subordinate courts, of all writs of certiorari to all such courts, and all writs of error to such courts whenever the state is a party. The judges are first to be appointed by the governor, and at the next election to be elected for three years.

TO SUBSCRIBERS. The volumes of the LAW JOURNAL are strongly and uniformly bound at this office for $1.50 full sheep, and $1 half sheep.

The Albany Law Journal.

ALBANY, MARCH 11, 1871.

LEGAL GUARDIANS v. NATURAL
GUARDIANS.

A dozen words, introduced by an amendment last winter, into the Revised Statutes of this state, are so revolutionary, and fitted to become so destructive of the peace of families, and so disastrous to the young, that I am constrained to believe they were inconsiderately adopted. The words are these: "and may appoint a guardian for a minor whose father is living;" and they are interpolated by chap. 341, vol. i, Sess. Laws 1870, into 26, tit. 3. chap. viii, part ii, R. S.

The whole section thus becomes:

6. The surrogate to whom application may be made under either of the preceding sections shall have the same power to allow and appoint guardians as is possessed by the supreme court; and may appoint a guar. dian for a minor whose father is living; and in all cases he shall inquire into the circumstances of the minor and ascertain the amount of his personal property, and the value of the rents and profits of his real estate, and for that purpose may compel any person to apear before him, and testify in relation thereto.

To the casual reader the section may still seem innocent enough; but a little consideration of other provisions of law, and of the changes which this may, and indeed must, accomplish, will better show its scope.

The family is so important a part of our established civilization, that some careful thinkers have suggested that it, rather than the individual, should be regarded as the unit of society. It is evidently a natural and God-ordained relation. It is the foundation of home-the idea so hallowed in our thoughts, and so guarded and protected in the whole system of our jurisprudence. The right, as well as the obligation, of the parent to have the care and custody of his child during minority, is so sanctioned by tradition from the earliest times, and so conformable to instinct as well as to reason, that argument in favor of it would be superfluous. The courts and the legislature, hitherto, have been most careful to preserve it.

One of the strongest reasons against granting divorces hastily, or for any but strong and well established grounds, is regard, not merely for the man and woman, their interests, their happiness and their relations to one another, but, for their children during minority and for their interest, character, comfort and happiness. Even in cases where divorce is proper and necessary, the custody and care of the minor children are often most difficult to adjust, because of the respect due, according to our laws, to the ties of nature.

Then, again, a large part of the body of our law concerns directly the relative rights and duties of parents

and minor children. Can the legislature possibly have intended to nullify or abrogate these laws by striking out the essential part of the relation, or enabling any surrogate to strike it out? However innocent it may appear, to say that the surrogate may appoint a guardian for a minor whose father is living, he can, in no case, do so, without striking out, and, in effect, annihilating most of the hitherto legal relations between the father and child. Let us see:

The title of the Revised Statutes, here "amended," treats of the guardianship of minors. Much of it is merely declaratory of previously existing common law, but especially it gives to surrogates jurisdiction in the appointment of guardians, and regulates its exercise. The first section declares, that "every father, whether of full age or a minor, of a child likely to be born, or of any living child, under the age of twenty-one years, and unmarried, may, by his deed or last will duly executed, dispose of the custody and tuition of such child, during its minority or for any less time, to any person or persons in possession or remainder."

In 1862, this provision was modified by enacting (chap. 172, 6) that, "No man shall bind his child to apprenticeship or service, or part with the control of such child, or create any testimentary guardian therefor, unless the mother, if living, shall, in writing, signify her assent thereto." Plainly the meaning of this modification is to recognize the mother's natural right in her child, and not at all to diminish the natural right of the father. It is a good and proper provision, calculated to preserve more sacredly the natural rights and relations of parents and children.

Next in the Revised Statutes (?? 2, 3) come provisions declaring that such appointment by the father (with the consent of the mother) "shall vest in the person named all the rights and powers, and subject him to all the duties and obligations, of a guardian of such minor, and shall be valid and effectual against every other person claiming the custody or tuition of such minor as guardian in socage or otherwise;" that "he may take the custody and tuition of such minor, and may maintain all proper actions for the wrongful taking or detention of the minor, and shall recover damages in such actions for the benefit of his ward. He shall also take the custody and management of the personal estate of such minor, and the profits of his real estate," etc.

These provisions show that a testamentary guardian, duly appointed by the father (with the written assent of the mother), may do with the minor substantially what the father could do if living, in the custody of the person, including, of course, education and culture, social, moral and religious-every thing, in fact, pertaining to the bringing up of the child, and the direction of its life and affairs.

Next in order (224, 5) come provisions for the appointment by the surrogate of guardians for minors, for whom no guardians have been appointed by the father. These provisions, though not heretofore limited in express terms to cases in which the father has died, have generally been considered applicable only to such cases. Their evident design is for the benefit of orphans, and to furnish a substitute for paternal authority and direction, in the cases where these have terminated by death. The very enactment now under

consideration implies that, without it, surrogates were not legally authorized to appoint guardians for minors whose fathers are living. Section four provides that any minor fourteen years of age, for whom no guardian has been appointed by the father, may apply to the surrogate in his county "for the appointment of such guardian as the minor may nominate, subject to the approbation of the surrogate." In this case there is no notice to any relative of the minor. The only questions for the surrogate are, approval of the person rominated, and approval of the security. If the individual nominated be personally unexceptionable, he or she must, probably, be forthwith appointed on the minor's petition and nomination.

The next section (5) provides for the case of a minor under fourteen years of age, that "any relative or other person in his behalf may apply to the surrogate of the county where such minor shall reside, for the appointment of a guardian of such minor, until he shall arrive at the age of fourteen years, and until another guardian shall be appointed. Upon the making of such application the surrogate shall assign a day for the hearing thereof, and shall direct such notice of the hearing to be given to the relatives of the minor residing in the county, as he shall, on due inquiry, think reasonable."

Section forty-four of the act of 1837 expressly provides that such notice "shall be served on such relatives only of the minor as the surrogate shall direct;" and it has been decided (22 Barb. 178) that the surrogate, on such an application, may assign the same day for the hearing, and may, in his discretion, dispense with notice to relatives.

Sections eight and nine (R. S.) provide for a bond of the guardian, with sufficient surety, and to be filed with the surrogate.

Section ten declares " every guardian so appointed by a surrogate shall have the same powers as a testamentary guardian; and every person so appointed guardian of a minor under the age of fourteen years shall continue guardian of such minor, and shall be responsible as such, notwithstanding the said minor may arrive at the age of fourteen years, until another guardian be appointed, or such first guardian be discharged according to law."

This synopsis of the statutory provisions for the appointment of guardians by surrogates was necessary to enable us to see, and it does enable us to see, the bearing and effect of the short but sweeping modification of last winter. It makes applicable to every minor in the state, as well to those living in good homes and in the care and custody of competent fathers, as to those who may be, or may become, orphans, all the provisions of law for appointing guardians; and such guardians, when appointed, are to have the custody of their persons as well as of their estates—their expenses, their education, their employment, their moral and religious instruction, as well as the renting of their houses and lands, and management of their personal property, and this, too, notwithstanding the views and wishes of both parents may differ widely from those of the guardian.

whose general character and standing the surrogate of his county can see no reasonable objection, has only to call on the surrogate and require his or her | appointment as his guardian, and thereupon he not only may, without warning, legally desert his home and his parents, and put himself under the management and direction of such other person; but such other person is, in fact, thenceforward legally bound to take the entire direction of such minor, and the parents are legally bound to acquiesce!

The same things would be true, in the case of a girl of fourteen, even if the concealed motive be to obtain legal consent and opportunity for an objectionable marriage.

Still greater wrongs and outrages upon all the proper feelings and interests of familes may be legally perpetrated under this law, in the case of minors under the age of fourteen years. "Any relative or other person" may procure a guardian for such minor, to be appointed without the knowledge and against the wishes of the parents; and such guardian will then be legally entitled to the custody and tuition of the minor, to the exclusion of the parents. To suppose this, it is not necessary to suppose the surrogate corrupt. He may act with sound legal discretion on all the facts presented to him; and, having acted, he cannot set aside his appointment without legal cause.

It is no sufficient justification of this law, to allege that the natural guardian of a minor may, on proper application to the equitable power of the supreme court, obtain its order that he or she have the personal custody of the minor, even as against a statutory guardian. Parents ought not to be subjected to this necessity, nor even to this liability. Many may not be able, or may not know how, to obtain such reinedy; and it is easy to suppose cases in which irreparablə mischief may be done before this remedy can be applied. No statute ought to take away, or enable any person to take away, the strong natural presumption in favor of the parent's right to the custody and tuition of his child during its minority. The parental tenure of children during minority should be more secure. It should never be taken away, except on abundant notice, and on thoroughly established equitable grounds.

Our judgments and our sympathies have frequently been invoked in behalf of parental rights in other countries, disregarded and violated by monarchies and hierarchies. This, too, was one of the heaviest charges against slavery. No reasons of state, or of state policy, now require such disregard or violation, any where in this republic.

The law of last winter should be immediately repealed, or, at least, so modified, as to provide that a general guardian for a minor shall never be appointed without notice to its natural guardians, or, in case of their decease, to the relative acting in place of the natural guardian; and that, in no case, shall the personal custody of a minor be taken away from the natural guardian, except on the order in equity of the supreme court, or a justice thereof.

THOMAS J. SIZER.

A bill is before the Illinois legislature abolishing the