in the county jail of Multnomah county, in the state aforesaid, pired, he must be remanded, if he appear to be detained in cus until further order." The commitment recited the order in the judgment, and directed the marshal to deliver the prisoner "to the keeper of the county jail of said county of Multnomah, in the state aforesaid, there to be safely kept by him, the said keeper, in close confinement until he be discharged by due course of law, or until further order." The telegraphic message from the secretary of the interior, was as follows: WASHINGTON, March 3, 1869. Į "Received at Portland, March 3, 1869, 9 A. M. "To Albert Zieber, Marshal U. S.: "Transport to California penitentiary William Le Bur. (Signed) * * "O. H. BROWNING, Sec'y." The copies of the judgment, order of commitment and telegram, were certified by the clerk of the court. tody "by virtue of process issued by any court or judge of the The petitioner must be remanded, and it is so ordered. Forfeiture of Life Insurance Policy through Non- F. M. Pixley, for petitioner. The return does not show any authority for detaining the prisoner. The warden is the agent of the state. not of the United States; and it appears by the judgment and the order of commitment, that the prisoner was ordered to be confined in the county jail of Multnomah county, Oregon, "until further order." That means until further order of the court, for the power to designate the place of confinement is a judicial function, and the designation of the place is a necessary part of the sentence, as much so as the fixing of the term. The secretary of SAINT LOUIS MUTUAL LIFE INSURANCE COMPANY v. the interior, being an executive officer, has no power to change the place of imprisonment designated by the court. No order was ever made by the court removing the prisoner to this state, and, therefore, he is not lawfully detained here. But, if the secretary of the interior be held to have the power to change the place, there is no evidence that he has done so, for the telegram is not authenticated by the seal of the secretary's office, nor certified by any one having authority to attest its authenticity. Walter Van Dyke, United States district attorney, for the respondent. A state court cannot issue the writ of habeas corpus where the party imprisoned is in custody under the authority of the United States. If he is wrongfully imprisoned, the federal tribunals alone can release him. Ableman v. Booth and the United States, 21 How. U. S. 506. The prisoner is in the custody of the respondent, under the authority of the United States. The telegram of the secretary of the interior is sufficient to authorize the imprisonment of the prisoner by the respondent. It is of necessity without a seal, for such a message cannot be transmitted with a seal. The secretary has authority to designate places of confining prisoners. 2 Brightley's Digest of U. S. Laws, p. 164, sec. 56; Id., p. 182, sec. 55. The power of designating the place is an executive function merely, not judicial. When the sentence is passed by the court its power over the prisoner is exhausted, and all that remains is to execute the sentence. That must be done by executive officers. To hold that the place cannot be changed without an order of the court would be to render executive officers powerless to act in case of emergency, such as fires, etc. Mr. Chief Justice WALLACE said: The prisoner is detained in custody by the authorities of the government of the United States, by virtue of the judgment rendered by the United States Circuit Court in Oregon, and it is not claimed that the term of his imprisonment has expired. The circumstance that he is imprisoned at the state prison, and in the keeping of its warden, is of no import in this respect, for these are but the agencies and means of his confinement adopted by the United States by the consent of the state. The petitioner being a prisoner held by the authorities of the government of the United States, by virtue of the judgment of a federal court of exclusive jurisdiction in the case it is my duty, under the statutes of the state, to remand him. Penal Code, sec. 1,486. It is there provided that if the time during which a party may be legally detained in custody has not ex AMANDA L. GRIGSBY. Court of Appeals of Kentucky, October 15, 1874. Hon. M. R. HARDIN, Chief Justice. B. J. PETERS, WILLIAM LINDSAY, WILLIAM S. PRIOR, Associate Justices. 1. Life Insurance-Forfeiture-Interest on Loan Note.-The law will not permit a forfeiture of a policy of life insurance for failure to pay interest on a loan or premium note at a stated time, where the policy provides that such interest may be deducted by the insurer from the dividends on or proceeds of the policy. 2 Hypothecation.-In such case the policy is in law hypothecated for the payment of the note and interest, and the agreement for forfeiture for non-payment of interest at a stated time, will be disregarded as a condition making a pledge irredeemable. 3. Relief in Equity.-In such case, relief will be granted in equity, where the amount in default is greatly disproportionate to the forfeiture, and compensation in money can be made. Appeal from the Louisville Chancery Court. LINDSAY, J., delivered the opinion of the court. The policy of insurance, made the foundation of this action, was issued by the St. Louis Mutual Life Insurance Company, on the 16th day of August, 1869. The contract it evidences, is, that in consideration of the sum of $690 60, in hand paid, and an annual premium of the same amount to be paid on the 16th day of August, in each and every succeeding year, for nine years, said company assured the life of J. Calvin Grigsby, for the term of his entire life, in the sum of ten thousand dollars, for the sole use of Amanda L. Grigsby, in trust for herself and the children of the insured. The following provisos were incorporated into the policy: First. That if default shall be made in the payment of any of said annual premiums hereafter to become due and payable at the time hereinbefore mentioned and limited, for the payment thereof respectively, then, and in such case, such default shall not work a forfeiture of this policy, but the sum of $10,000.00, the amount insured, shall be then commuted or reduced to such proportional part of the whole sum or amount insured, as the sum of the annual payments so paid by the said insured shall bear to the sum of the ten annual payments herein stipulated and agreed to be paid by said J. Calvin Grigsby as aforesaid. Second. If the said insured shall fail to pay annually, in advance, the interest on any unpaid notes or loans which may be owing by said insured to said company, on account of any of the above mentioned annual premiums, at the office of the company, in the city of St. Louis, or to agents when they produce the receipts signed by the president or secretary, then, and in every such case, the said company shall not be liable for the payment of the sum insured, or any part thereof, and this policy shall cease and determine." The direct question is presented whether, from the failure to pay this amount, or even the whole of the interest due, the forfeiture of all rights under the commuted policy followed as a legal and necessary consequence. Some importance is attached to the fact, that the certificate evidencing the commutation continued the new agreeement in force only until the 16th day of August, 1871. We regard this attempted limitation as to time, as unavailing. The company accepted the interest then in arrear, and thereby reinstated the original policy, except as to the amount of insurance, and by The premiums upon this policy were to be paid upon what is the terms of that policy, it was to continue in force during the called the half-note plan. whole term of the natural life of the insured. The conditions in The cash payments were made, and notes executed in 1868 and policies of life insurance, providing for forfeitures for the non1869, but the insured failed to pay, or in any way arrange the pre-payment of premiums, in exact accordance with the terms of the mium due on the 16th of August, 1870. He also failed to pay, agreement, have been upheld and enforced by the courts. in advance, the interest on his then outstanding notes. (Signed) 'WM. T. SELBY, Sec'ty." This certificate was duly countersigned, and the necessary amount paid. Grigsby failed to pay the interest due the 16th of August, 1871, on the note executed for the aggregate sum of the three notes given in 1867, 1868 and 1869, and died on the 2d of January, 1872. Appellee claims that she is entitled to recover the whole amount of the original policy, less the sum due as premiums for 1870 and 1871. Such forfeitures are regarded as being in the nature of penalties. It is considered that in agreements of this character, time is of the essence of the contract. They are contracts to be kept in force from year to year at the will of the insured. The right to keep the policy alive by the payment of the stipuated premiums, is a privilege secured to the insured, by his argreement with the insurer. He may exercise or abandon this privilege at his discretion. But if he does abandon it, those beneficially interested cannot complain that the insurer refuses longer to be bound by a contract that has lost all the elements of mutuality. Where, as matter of favor to the insured, credit is extended him for some portion of a cash premium, the failure to pay the note representing such portion, is regarded as a failure to pay the premium, and the policy will be forfeited. In this case there has been no failure to pay, either the cash portion of a premium, or to satisfy a note representing any portion of a cash premium. By the contract of November 2d, 1870, the original policy was commuted. It thereby became essentially a paid up policy, except that the company had the right, should its affairs render it necessary and proper, to demand the payment in whole or in part, of the note executed for the unpaid portion of the three annual premiums. It does not appear from the record before us, nor from the charter of the company, nor from the amendment thereto, that the failure to pay these premium notes, or such portion thereof as may be called for, will work a forfeiture of the policy of insurance. But however this may be, that question does not arise, as the insured was never required to pay any portion of the principal of the note held against him by the company. The complaint is that the interest was not paid in advance. It seems that a distinction is taken between the principal sum due, and the interest that may She alleges, but fails to prove, that prior to the default in 1870, the company had adopted, what she denominates, the Massachusetts plan, and that it was bound to keep the policy alive by applying to the payment of the premiums the reserve fund to which she was entitled, and that by such application the policy would have been kept in full force up to, and after the time, at which the husband died. The failure of proof upon this point renders it unnecessary that it shall be further noticed. Appellee further claims that her deceased husband was a lunatic in November, From the peculiar character of the contract this distinction may 1870, when he accepted the commuted policy, and that its accept-exist, but we do not see that its existence can convert the accruing ance was obtained by the fraud of the company. The proof fails to show that Grigsby was at that time, or at any subsequent time, insane; but if it did, we do not see that such fact would operate advantageously to the appellee. By the terms of the contract, the failure to pay the premiums as they became due, involved the reduction of the policy in the proportion hereinbefore set out. The party who was in default could not compel the company to reinstate the policy for the full amount, and the agreement of November 2d, 1870, secured to Mrs. Grigsby the most that she then had the right to claim. The company resists her right to recover on the commuted policy, on the ground that the failure to pay the interest in advance on the note executed, when the agreement to commute was entered into, released it from all liability and determined the policy. This note was for $817.41; the amount of interest due on the 16th of August, 1871, was $49.04. The proof shows that appellee was then entitled to a dividend amounting to $42.07. The application of this dividend to the payment of the interest would have reduced it to $6.97. accrue thereon. interest into an annual premium, for the non-payment of which * which the insured may never be required to pay, and which ordinarily will be satisfied out of the dividends, or the insurance to which the assured may be entitled. premium, or part thereof, on which credit may be given, or to be given, to said company therefor;" but this clause was not in either case the subject of criticism or decision: McAllister's Case, 101 Mass. 558; Hasbrook's Case, 32 Ind. 447; Roberts' case, 1 Disney, (O.) 355, 2 Disney, 106. The principal opinion does not disclose the existence of any such clause in the policy in question. The only fact stated is that the loan represents a debt which the insured may never be required to pay, and which ordinarily will be satisfied out of the dividends, or the insurance, to which the assured may be entitled." Does, then, the right of the insurer to deduct the amount of the premium note, or "loan," with its accrued interest, from the dividends or proceeds of the policy, amount in law to a hypothecation? And will the courts apply to such cases the rule of law above stated, that the pledge shall, in no contingency, become irredeemable? If the Kentucky court is correctly understood to answer these questions affirmatively, it is in this respect not in accord with the course of adjudication. It seems settled that a failure to pay a premium note at maturity will avoid the policy, when so conditioned, equally with a failure to pay a cash premium upon the exact day. Robert v. N. E. Mut. Life Co, supra; Pitt v. Berkshire Life Co., 100 Mass. 500. Though it is otherwise if the condition for forfeiture be incorporated in the note only, and not in the policy. McAllister's case and Hasbrook's case, supra : Mut. Ben. Life Co. v. French, 2 Cincinnati Supr. Ct. Rep. 321. The Kentucky court impliedly assents to this rule, while distinguishing the principal case by the fact that the forfeiture here depended on the non-payment, not of the note itself, but of the interest reached by the Supreme Court of Vermont, in a case where the agreement that But this distinction was ignored and a directly opposite result was The considerations applying to the payment of the annual premiums have no application to the payment of interest on these notes or loans. On the prompt payment of the premiums depends the mutuality of the contract, and the ability of the insurance company to meet its obligations. As to this policy, the contract was completely executed, so far as the assured was concerned. The annual premiums had all been paid, in the mode prescribed by the contract itself, and the company was bound to look to the assured for the payment of the interest due upon the notes or loans owing by him, and to enforce the payment thereof, as though he were a stranger to the contract under which appellee claims. She, and those she represents, cannot be affected by the default of the party to whom the loan was made, except that her policy, and all profits and payments to which she is entitled thereunder, are pledged and hypothecated to the company for the ultimate payment of the loan and its accrued interest. The failure of Grigsby to pay the interest due on the 16th of August, 1871, did not affect the ability of the company to meet its obligations, to any greater extent than the failure of any other debtor to pay the interest due from him, would have affected it. And as the collaterals pledged by an ordinary debtor to secure the payment of his debt, will not failure to pay interest on the premium note should work a forfeiture, was enbe forfeited to the company for the non-payment of interest, in ex-dorsed on the margin instead of being included in the body of the policy; and act accordance with the terms of the loan, notwithstanding his the agreement was enforced and the policy was avoided on the ground that agreement that they shall be so forfeited, we see no reason why the interest upon the notes becomes practically a premium upon the policy, the company shall be allowed to forfeit the paid up policy of insur- payable annually in advance." Patch v. Phoenix Mut. Life Co., 44 Vt. 481. ance, hypothecated to secure the ultimate payment of the "note or This and the principal case appear to be the only ones reported in which the loan" owing by Grigsby. The failure to pay the interest due on question was the non-payment of interest. But when it is conceded that the the note or loan, is a defect which admits of a certain compensa-mium, and a consummation of the contract, and of this there is probably now no giving and acceptance of a premium note constitute a payment of the pretion. The insurance company holds, and has always held, ample question (Bliss on Life Ins., p. 735, May on Insurance, 345. Hasbrook's security. We have already seen that the reasons that forbid courts Case and McAllister's Case, supra; Maury v. Home Ins. Co., 9 R. I.; Baker of equity from interposing to relieve against forfeitures for the nonv. Union Life Co, 6 Abb. Pr. R. (N. S ) 144; Hodsdon v. Guardian Life Co., payment of premiums, or notes representing portions of cash pre- 97 Mass. 144), the loan thus granted by the insurer seems to be a debt quite miums, do not apply in cases like this. We are satisfied, from the independent of, and separate from the contract of insurance, and fully within nature of the contract, that the forfeiture was intended as a pen- the rulings of the principal case, as to the interest on a note, All the logic by alty to secure, not the ultimate, but the prompt payment of the in- which the conc.usion is reached, that the agreement for the deduction of unterest to become due, and as the default is only in time, and as the paid interest from the proceeds of the policy amounts to a hypothecation of company can be given all that it stipulated to receive, a case is presented in which relief can, and ought to be afforded. The chancellor adjudged the company to pay the amount of the commuted policy, less the note due from Gribsby, and its accrued interest, up to the date of the judgment. His said judgment conforms to the principles herein announced, and it is therefore affirmed, as well on the original, as on the cross appeal. AFFIRMED. on it. the policy, would apply with equal force to the like agreement as to the unpaid note itself. Other similar conditions in insurance policies, for forfeiture in case of defaults made incidental to the premium note, and equally independent of the contract of insurance, have been sustained when subjected to criticism. Where a note was given for premium on a fire policy, conditioned that during the time the note should remain unpaid after maturity the policy should be void, and the insurer should not be liable, the condition was enforced in Ferebee v. N. C. Ins. Co., 68 N. C. II. A like condition in a marine policy was sustained, and the underwriter was relieved from liability for a loss accruing after the maturity and non-payment of the note in Galach v. Amazon Ins. Co, decided in U. S. Court, at Cleveland, in 1874 (not reported). So in Och v. Homestead Life Co., in the District Court at Pittsburgh, in 1874, NOTE. It is a matter of regret that the grounds of decision in this case are not more clearly stated by the learned court. The case is apparently rested on the law respecting the redemption of pledges. It is well settled, that an agreement in a contract of pawn, by which the pledge under certain circum-reported in 7 West. Ins. Rev. 335, a condition that the policy should be stances shall become irredeemable, will be disregarded by the courts, and even in a court of law the right to redeem will be protected, notwithstanding such a positive agreement. Tyler on Pawns, 539, 546; Story on Bailments, 345, 346. Hypothecation is a form of pledging, in which the article pledged (which may be a chose in action) remains with the pledgor. Story's Eq. Jur, 1005; Tyler on Pawns, 481. These rules have not heretofore been applied to policies of life insurance. In the principal case the policy is described as "pledged and hypothecated to the company for the ultimate payment of the loan and its accrued interest." This must be taken as a decision that there was such a hypothecation in this instance; and in this respect the case stands quite alone, and introduces a new element into the law governing mutual life insurance companies. But little has been said heretofore by the courts, in express terms, upon the hypothecation of life policies. In three reported cases, the policy used by the New England Mutual Life Ins. Co. was shown to contain a provision that this policy and any sums that shall become due thereon from said company for loss, or for distribution, or for return of premium, are pledged and hypothecated to said company, and they have a lien thereon to secure the payment of any avoided by failure to pay mortuary assessment after a given date, was treated as valid, though the forfeiture there was saved by the death of the insured before the maturity of the assessment. In each of these cases the insurance contract had once been consummated, and the forfeiture arose from failure to meet a collateral obligation, for which there was as plain a pledge of the policy as in the principal case. From the fact that the law of pledges does not appear to have been considered as applying to these cases it may be inferred that the doctrine of a hypothecation of the policy will scarcely become of general application in cases where the policy does not in terms declare a hypothecation. Courts generally allow parties to make their own contracts. Should the doctrine in question be applied by the courts to life policies where it is not expressed, the result will be that no default in respect of a premium note, whether in payment of principal, interest or assessments, will be allowed to operate as a forfeiture, inasmuch as the insurer may always be compensated ultimately. But the weight of authority at present is that the right to keep the policy alive, by compliance with its conditions, "is a privilege secured to the insured by his agreement with the insurer," and that he may exercise or abandon this privilege at his discretion." On re-reading the principal case, we are not sure but that the learned court intended to rest it on equitable principles. By allowing to the assured the dividend, the amount in default was reduced to $6.97. For non-payment of this sum, shall the policy of $3,000 be declared forfeited? This presents a totally different question, to which the legal rules as to hypothecation are foreign. Courts of equity will grant relief against a forfeiture, where the amount is greatly disproportionate, and the forfeiture is designed as a mere security, so that full compensation in money can be made. Story's Eq. Jur. ?? 1314, 1316. This is merely saying that equity will relieve a person from the consequences of a hard bargain, to enforce which would shock the conscience. In like manner equity will sometimes annul a sale, on the ground alone of gross inadequacy of consideration. Tiernon v. Wilson, 6 Johns. Ch. 411; against such corporations, prohibited from proving claim against bankrupt. The doctrine of estoppel in pais considered, and nu merous cases cited. SEPARATE ESTATE-PARTNERSHIP ASSETS. Separate estate, in the meaning of the bankrupt law, is that in which each partner is separately interested at the time of the bankruptcy. It may be used in connection with, and for the benefit of the partnership business, but the term " separate estate "' can be applied only to property so used which belonged to one or more of the partners, to the exclusion of the rest. Partnership assets must be applied to the payment of partner Hansard v. Sharp, Thomps. Tenn. Cases, 73; Burch v. Smith, 15 Texas, 219. ship debts without reference to any disproportion of the interests This equitable principle is applied to cases arising under insurance contracts, and it is held that forfeitures will not be favored. Froehlich v. Atlas Life Co., 47 Mo. 406; McMaster v. Ins. Co. of N. A. (N. Y. Ct. Appeals), 3 Ins. Law Jour. 273, especially where adequate compensation for the interference can be made in money (Robert v. N. E. Mut. Life, 2 Disney. 106 Mut. Ben. Life Co. v. French, supra. of the individual partners as between themselves. In Re Lowe & Richards, U. S. D. C. Mich., Lowe, J. Mem.: In re Detroit," first column, p. 81, ante, should be "In re Detert." E. T. A. " If the principal case is to be understood as placed upon this high ground, A Birds-eye View of the Court and Counsel in it would have been more satisfactory, both to the legal profession and the parties litigant, had the law of the case been more difinitely stated. J. O. P. Some Recent Decisions in Bankruptcy. the Tilton-Beecher Case. I. When a crime of great magnitude is declared to have been committed against good morals and the peace of society, the public mind naturally seeks to glean and discover every fact appertain JURISDICTION OF BANKRUPT COURTS EXCLUSIVE-APPLICATION OF ing to it, from whatever source; a myriad eyes turn immediately to ACT OF FEB. 13, 1873. Watson v. Citizens Savings Bank of S. C., U. S. C. C. S. C., Bond, J., 11 N. B. R. 161. Plaintiff obtained an order of the state court upon defendant to show cause why a receiver should not be appointed, meanwhile restraining defendant from disposing of its property. Defendant thereupon filed its petition in bankruptcy, was adjudged a bankrupt, and its property ordered to be surrendered to the register. The state court ordered a return of the assets of the bank to the custody of the state court, and the bankrupt court issued an injunction restraining plaintiff, and all other creditors of the bankrupt, from interfering with the assets of the bankrupt, or the possession of the same by the register, etc. The state court next issued a rule upon the attorneys of the bankrupt to show cause why they should not be attached for contempt, and plaintiff filed a petition in the circuit court for the purpose of reviewing the proceedings had in the district court, and having all the orders made by the latter set aside, and the assets restored to the custody of the state court. Held, that the jurisdiction of the United States Courts, in bankruptcy, is an exclusive jurisdiction; that the jurisdiction of state courts, in settling affairs of an insolvent corporation, is at an end the moment the corporation is adjudicated a bankrupt; that act of Feb. 13, 1873, applies only to such orders relating to ratable distribution of assets as state courts may have passed prior to bankruptcy; that all creditors of a bankrupt are parties to proceedings in bankruptcy. COMPOSITION-DISCONTINUANCE. In re McKeon., U. S. D. C., S. D. N. Y., Blatchford, J., Id. 182. Composition under 17, act June 22, 1874, after adjudication having been accepted and confirmed, for payment of thirty per cent. in cash, the petition of bankrupt for discontinuance of proceedings, and release of his property and books refused, though accompanied by a paper consenting thereto, and signed by a majority in number and amount of all his creditors; 1st, because no hearing, upon reasonable notice to all the creditors, had been had on the question of discontinuance; 2d, because the thirty per cent. had not been paid. FOREIGN CORPORATIONS. expose every particular and every circumstance which, by possibility, may be conjectured; a myriad ears are alive with unwonted zeal and acuteness to catch every whisper; a myriad hearts are wrought to pity or censure, while the world stands amazed-full of wonderment. When a man, possessing pre-eminent abilities, and much genius, with a reputation world-wide, is placed upon trial in a court of justice, charged with having broken one of the five commandments of Holy Writ, and the plaintiff in the action is likewise renowned for genius and rare and varied talents, it is not surprising that people in our own country, and in far-off lands, should, with bated breath, ask, "whither does this tend?" And when the case has drawn together, on either side, counsel among the most able, astute and dignified of the country, it seems not unfitting that a cursory glance, a birds eye view, at least, of those who are acting in the novel spectacle and drama in behalf of the prosecutor and the accused, should be mentioned by a law journal. The case in question, which, after a fair supply of side-sparring. and after an elaborate argument in the Court of Appeals of New York State, upon the admissibility of a bill of particulars, was commenced in the City Court in the City of Brooklyn, on the eleventh day of January, 1875, and which, from the present aspect, seems likely to continue for weeks, if not for months to come, promises to be fruitful of three elements — novelty, astuteness and heart-burnings. The action is grounded upon what is commonly termed in law crim. con. Acting in behalf of the plaintiff, the lawyers are William A. Beach, William Fullerton, Samuel D. MorJohn K. Porter, B. F. Tracy, Thomas G. Shearman and John L. ris and Roger A. Pryor. For the defendant, William M. Evarts, Hill. I. HON. JOSEPH NEILSON. The court is presided over by one of the judges of the city court, Judge Joseph Neilson, a man distinguished and honored alike for his calm judgment, probity and marked legal abilities, which qualities have been evinced and displayed by him on full many an occasion during his last four years experience on the bench. He is considerate, gentle, always willing and anxious to listen to counsel, In re Comstock & Co., U. S. D. C. Oregon, Deady, J., 11 N. but of a positive character-qualities which present the highest type B. R. 169. Bank of British Columbia not having complied with for that of a presiding justice, on trials of this character. Judge the statute of Oregon, requiring a foreign corporation, before do- Neilson is upward of fifty years of age, of full habit, possessing a ing business in that state, to execute a power of attorney, appoint-large head and massive brow, his whole facial development marking ing an agent upon whom all process might be served in suits him as a man of generous and enlarged ideas in the practical experi being entitled to a bill of particulars in the case, under the code of New York state, and followed further and assiduously the course of the case, when it came down again before the city court on the important, if not vital question, as it seemed, of the right of demanding such a bill. And from the time the case was opened, day after day, he has contested every point which seemed to be contestable, or necessary to unravel the tangled web of testimony, to keep from the jury that which would reflect unfavorably upon his notorious client. ence of the world, as well as liberal and enlarged capacity in matters of jurisprudence. It will be remembered by those who have kept pace with him, that he presided over the same court in the somewhat renowned case, known as the Homan-Earl case-which was an action for breach of promise of marriage, where the damages were laid at a large sum; the parties to that action being prominent members of the same church, necessarily afforded a bountiful supply of ideas for much tea-table talk. He was master of the situation, and his rulings on questions of law were sustained on appeal. Any one who has followed the course of Judge Neilson, in Mr. Evarts possesses much dignity of bearing, a calmness and the great case now on trial in Brooklyn, must realize that he pos- earnestness, which, with a classical accuracy of speech, commands serses most admirable amenities, characteristics and abilities for a at once the respect of the court and auditory. Of slender judge—and that justice will be done, though the heavens fall. He physique, sharply cut features, which show prominently forth, as is clear in the correctness of his own judgment and opinions, and he wears no appendages of hair to break the lines; his thin lips and is ever animated by a high sense of duty; and thus far he has not, bold chin characterizing him as positive and decided in action. He nor will he, manifest any timorousness. He ever remembers that is not far from sixty years of age, and, although he would appear the office of judge is jus dicere, and not jus dare; to interpret law, to the casual observer as being extremely delicate in general not to make law, or give law. Lord Bacon has somewhere said, health, or seeming to be overworked, yet, the fact is, that he is one that judges ought to be more learned than witty; more reverend than of the most tireless of men, having greater powers of endurance, plausible, and more advised than confident; and that above all perhaps, than any member of the New York bar of like age. things, integrity is their portion and proper virtue. Judge Neilson Every time one sees him he appears to look thinner than before, satisfies the Baconian test. And surely, judges ought, above all, but the fact is, that his very mental elasticity and strength seems to to remember the conclusion of the Roman Twelve Tables, Salus support and carry the physical development. He was one of the populi suprema lex; and that laws, except they be in order to that prime movers and founders of the Bar Association of New York, is end, are but things captious, and oracles not well inspired. Judge now the much honored president of that association, and is ever Neilson will administer the law, we doubt not, to the entire satis-ready to advocate a measure which promises to be beneficent to faction of the world of the world, we say, for the eyes of the people of all Christendom are turned Brooklynward, and fixed upon his court. He will bear the highest test of judgship, and evolve the master-key of jurisprudence, when occasion requires and the case demands it. His countenance, the lines of facial de velopment, the firm, grey eye, with decided positiveness to the mouth, all seem to bespeak that nature has set her seal to give the world assurance of an upright judge. II. WILLIAM M. EVARTS. the profession. In the great trial now depending, the part of cross-examining witnesses seems to have been allotted to him, while it is probable that ex-Judge Porter will sum up for the defence. Certainly no case before in this country has arisen which involved so many vital principles and interests as the Tilton-Beecher one. The Tichborne and the Mordaunt trials affected families, Mr. Evarts-I agree to that. Mr. Beach-Well, if he agrees to that he proves the act of Mr. Tilton upon the presentation of this letter to him. Now, we propose to prove what Mr. Tilton said in connection with the act of reception or the act of drafting the reply to that letter. Few, if any, members of the legal profession, have been more prominent before the country during the past decade, than the senior counsel on the part of the defence in the case in question-William M. Evarts. He was for a season Attorney-General of the United States, in which high office he displayed to good advantage his legal acumen, his extensive knowledge, and he conferred a dignity upon the position which will compare favorably with any who have filled that noble office since William Wirt. As Mr. Beach-Will the counsel permit me to call his attention to a rule of a member of the commission, to present the claims of the United evidence fundamental, that when an act is given in evidence, any accompanyStates, before the Geneva Arbitrators, and upon whose masterfuling declarations qualifying or explianing the act are admissible as a part of the res gesta. efforts the award was fixed at the figure it was, he towered high above the English representatives at that tribunal, however much they prided themselves upon noble blood. His scope of mind, his intuitive knowledge of men, his prescience of genius, all go to make up the great orator, the logical reasoner, whose voice is always favored at political gatherings, or on occasions when some great matter of state seems to endanger the perpetuity of the best welfare of the people. In the impeachment trial of Andrew Johnson, for mala fides in affairs of government, Mr. Evarts, acting in behalf of the accused, acquitted himself nobly and well, not only on the matter of examination of the case and witnesses, but his address was powerfully convincing, sprinkled over with a bountiful deal of scintillating figures, and logical deductions. Whether he is in high feather or not over the election of his distinguished client to the senate, he doubtless cherishes a warm appreciation of him from personal contact, and from having labored and struggled forensically for him and been crowned with victory. This senior counsel, on the part of the defence, has fought inch by inch the legal ground over which the great case has been dragged. He attended at Albany and presented an elaborote brief to the court of appeals, and argued ably and strenuously in favor of his client Mr. Evarts-The reason we proved the act is the res gesta can be proved as between Tilton and Beecher. Now, the reasoning of my learned friend and the proposition of evidence is sound if, when Tilton delivered that letter to Mr. Beecher, supposing he had delivered it, and so there was an act between them in that form, then what Mr. Tilton said when he delivered it, if we omitted it, they could prove, no doubt. But the note is Tilton's writing-a letter for Moulton in answer to Mr. Beecher, which letter is sent to Mr. BeechThat is the action of Tilton that we proved. Now, they prove the conversation between the writer and the amanuensis, the dictator and man who furnishes the handwriting at the time that it was going on; that is the present proposition. er. declaration of Mr. Tilton in regard to the letter which he drafted and sent to Mr. Beech-Counsel will please observe that we ask no question as to a Mr. Beecher; the question is as to the letter from Mr. Beecher which was presented to him. Judge Neilson-I understand that. What did he say when he saw the letter? I think he can give that, Sir. Mr. Evarts-Doesn't it transcend any rule as yet considered whereby every |