relevant which goes to show the presence or absence of these qualifications or any of them. Now, what is the position of the barrister? He is not to judge his client; he is to advocate his cause. I suppose on a matter of this kind Dr. Johnson will be accepted as an authority, and that was his clearly-expressed opinion. It would be monstrous if a man was to be undefended unless he could persuade a barrister his case was good. He might fairly say, "If I could convince you, I could convince the tribunal, and should not want you. Will you listen to my brother or friend?" Absurd. The counsel then I do not say is blindly to think his client right, but I do say he is to think he may be right till it is shown he is not. He is bound therefore to give a credence to his client's statements and witnesses as they are furnished to him. What if not? Is he to believe those of his adversary-distrust and cross-examine his own witnesses, and deal deferentially with his opponent! Absurd again.

Now, it is to be remembered that the barrister (I deal with barristers only; I know about them, or ought) does not see the witnesses. He is told what they will say by very capable gentlemen, but gentlemen who have honestly taken up their client's case, who believe it right, his witnesses honest, the opposite party a rogue and his witnesses according. This opinion they warmly insist on and press on the barrister. He may know something of his adversary's case, but a great part of that may be a perfect surprise to him.

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I say then the barrister goes into court with a natural prejudice in favor of his own side and against his opponents. It may be said that this accounts for the style of cross-examination, but does not justify it. As to this I will say something presently; I am now dealing with matter of substance. I say that counsel has a right to ought to - cross-examine his opponent's witness on every matter which affects a witness' credit, capacity and honesty. His client would have a right to do so; why not the advocate? Why should be not ask whether the witness was at the scene of action? Why if, according to the case placed before the barrister, he may have assisted in the matter in question, and says he was away, why may he not be asked where he was and why he was there? It is not the right or privilege of the barrister, but that of the client. Whatever question the client might ask, the barrister may ask with this difference, that if the client knows he is wrong he ought to keep silence altogether; the barrister must act on the case furnished to him. I cannot but cite the recent Pearl Case. I am sure Major Hargreaves and his wife will not understand me as finding the least fault with either. I think they were very unfortunate that, no way to blame, they should have been troubled with so painful a matter. But one may quote the case. The jewels were stolen - or rather, removed from the depository. Mrs. Osborne was charged therewith. Either she was guilty or the stealing was a sham, and Mrs. Hargreaves had the jewels-unless indeed some third person had stolen them. I do not remember the facts very exactly, but I believe that Major Hargreaves was away about the time when the theft was committed. Surely it was legitimate to ask him where and why. If he had gone so as to be able to say he had nothing to do with it, or if he had gone to dispose of the pearls, if he will forgive me for supposing it, he probably would not have been able to give a good account of where and why he had gone. But some one with a knowledge of the virtues of the waters of Aix says that was not the motive of the cross-examination. It was to give pain. Sir Charles Russell says it was not that he did not know that Aix was resorted to for such affections as suggested. His word should be enough. I bave known him all his career, and know him to be incapable of an untruth or any mean act. Fifty years ago I

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was several times at Aix, and have been at it or through it several times since, and never heard that Aix was resorted to for such affections. There is another reason less worthy. No skillful advocate would put such a question for such a purpose. It would disgust the tribunal -the jury. It would go neither to the means of knowledge of the witness, his intelligence or his credibility. For juries do not distrust a witness for breaches of morality of a kind which they know are commonly committed. To do so would be to distrust the major part of mankind. I say the question was most proper.

My late friend, Sir W. James, lord justice, seems to have said that parties when called should not be crossexamined like mere witnesses. He was a most able man and a great lawyer. I respectfully differ. If a man is called as a witness in his own cause, his means of knowing, his intelligence, his honesty are matters to be ascertained as much as in the case of any other witness. I remember a case in which an action was brought against the Phoenix on a fire policy. Their defense was that the claim was fraudulent. Sir F. Thesiger was for the plaintiff, and excited considerable indignation in the jury by suggesting in his taking way that the defendants were relying on the fact of the plaintiff having undergone a year's imprisonment for obtaining money or goods on false pretenses, or some similar offense. Very angry looks were directed from the jury-box to me, who appeared for the Phoenix. I am sorry to talk about myself, but I cannot tell the story without doing so, and I think it relevant. I said to the jury that Sir Frederick's skill had converted what should tell against his client into a weapon of attack on the defendants. But it was true we should, and did among other things, urge on the jury that a man who had committed the plaintiff's offense was more likely to commit the offense we charged than a man who had passed through life without an imputation on him, and was a less trustworthy witness; that the judge's sentence for a crime was not all the punishment; there was the loss of character in addition. The jury thought so too, for though the plaintiff swore to his case the verdict was for the defendants. I dare say I gave the plaintiff pain; I would do it again.

The opinion of Sir W. James however is countenanced by some clauses in the Prisoners' Evidence Bill. Some distinguished lawyers have said his principle should be applied to the bill. I own I think not. It is said that great injustice would be done, that the prisoner would be convicted, not for the offense charged, but because he had committed offenses for which he bad been tried and punished. Take, it is said, the case of a man charged before county squires with poaching, and a dozen prior convictions owned by him or proved. What chance, it is asked, would he have? The first remark I have to make would be that the tribunal would be pretty well informed without the evidence, and could not but be influenced by their knowledge. But assume the convictions proved, and assume that it induced a probability of the man's guilt in the judges, would it only do so, because that was a natural and probable result of the evidence? If so, why should the evidence not be given? I do not believe that the minds of the judges would be diverted from the question they had to try. I believe if the man had a good defense it would prevail. Suppose he proved that he had no gun, no nets, no stones, no bludgeon, no dog. Moreover, as I have said, the grossest injustice is done when a man of undoubted good character is opposed to one of undoubted bad character, and yet they are treated as on an equality. It would be an injustice

that would be resented and the law would be evaded. The suggestion is that the question as to prior offenses should not be asked-not merely that there should be no obligation to answer, but that it should not be

asked. And that is necessary, for if it might be asked, and the defendaut refused to answer, everybody would feel it was an admission. But if it might not be asked directly, there are plenty of ways in which the effect might be got-"Do you call witnesses to character," or "He has not called witnesses to character," or "Gentlemen, no question has been put to the prosecutor as to his character, you may trust him." I say, it would be unjust to treat alike two men wholly different. Sometimes the law would be evaded.

The Chief Baron Pollock told me the story of the witness who was asked as to a conviction years gone by, though his (the witness') honesty was not doubted. I think the chief baron told me he burst into tears at the answer of the witness. Pain given to a respectable man by a question which bore neither on his means of knowledge, his intelligence or honesty. But a man to put such a question must be a fool and a brute-a brute to give the pain, a fool not to see the prejudice to his client.

MEMORANDUM ON BEHALF OF THE STATE
BAR ASSOCIATION IN FAVOR OF THE
AMENDMENT TO THE CONSTITUTION IN-
CREASING THE NUMBER OF JUDGES OF
THE COURT OF APPEALS.

[Submitted to the Senate Committee March 2, 1892.] To the Judiciary Committee of the Senate:

At the annual meeting of the New York State Bar Association, held in January last, the committee on law reform made a report to the association strongly favoring the adoption of the constitutional amendment passed by the last Legislature providing for a Court of Appeals to consist of fifteen members, and the following action was taken with reference thereto : "Resolved, That the report of the committee on law reform be adopted, and such committee is directed to take proper action in furtherance of the recommendations made therein."

And a subsequent resolution was acted upon requesting the president to act with the committee.

The State Bar Association has for some time past agitated this, the most important question relating to the administration of the law in this State, which is now or for some time has been before the people.

At the annual meeting in 1890 a resolution was passed by the association providing for an amendment in substantially the same terms as that passed by the last Legislature. At the same meeting a paper was read urging immediate action with regard to this matter, which resulted in the appointment of the constitutional commission of 1890. The principal question before that commission, and the rock upon which it split, was the relief of the Court of Appeals. A large minority urged the plan recommended by the bar association, and that amendment was urgently pressed upon the commission. In the end a provision for lim

I have now dealt with what I call the substance of the question. I say that on examination or crossexamination counsel may properly ask, and ought to ask, every question which may show the witness' means of knowledge, his intelligence and his honesty. But complaint is made of the style in which it is done -no doubt sometimes a well-founded complaint. Let us examine the position of counsel as to witnesses called for his opponent. He (the counsel) is possessed of the notion that his side is the right one; that the other side is wrong, dishonest, and his witnesses of the same character. Whether or no he has some justification for this opinion beforehand, he has almost always plenty for it afterward. It was well put by a correspondent of the Times, very few witnesses are candid under cross-examination- civil to the questioner. They seem to labor under the notion that he is an opponent to them, wants to make them say something they ought not to say, is laying traps for them. Theyiting appeals to the Court of Appeals prevailed by a forget most commonly, or act as if they forgot, that they are to tell not only the truth, but the whole truth, and think if they don't lie affirmatively they may negatively suppress the truth. I say no one acquainted with courts of justice can doubt this, or doubt that the truth has been wrung out in many cases from a witness minded to conceal it.

Then there is the presence of the judge. Surely if there was a disposition in counsel to go wrong, the presence of the judge would tend to deter him. "Oh," it is said, "the judge is afraid." I do not remember that feeling. No doubt a judge is unwilling to call counsel to order. They are probably friends--perhaps the counsel is really a stronger man than the judge. Anyhow it is an annoyance and trouble to be faultfinding and carping at the conduct of one engaged in the business that the judge is conducting. But there

is that presence operating for good. After all, let us judge by the result. By our system is not the truth got at, is not justice done? I say yes confidently. Sometimes there may be a failure; in what system of machinery is there not?

In conclusion, I say it is the right of the client to have put, and the duty of his counsel to put, every question which bears on the witness' means of forming an opinion, his intelligence and honesty; that in putting those questions the counsel, as an advocate, a prejudiced person, possessed against his opponent, that his opponent and his witnesses generally justify this distrust, and cause the roughness of which they complain. There is this at least to be said, that they retaliate. Counsel do not differ very much. There are noue notorious for bullying.

I believe the bar has not deteriorated since I left it; I believe that I was no better than my brethren; and I look back on my membership of the body with pride, and am proud still to be able to call myself one of it.

majority of one upon its final passage. When that report was made to the Legislature, it failed to secure any action whatever, and the present joint resolution was passed in its stead. The matter was again taken up by the association in 1891, and a committee directed to be appointed for the purpose of urging such a revision of the judiciary article as would result in the creation of a Court of Appeals organized in accordance with the views of the association as theretofore expressed.

Following this is the action taken at the meeting in 1892, as shown by the resolution already given, which resolution was unanimously adopted. It will thus be seen that the bar association has been earuest, active and diligent iu pressing this matter, and while at the outset there was a division of opinion upon the question, the agitation has during two years resulted in a unanimous vote in favor of the proposition first urged, to increase the number of the members of the court.

It has been urged, particularly in the constitutional commission of 1890, that the profession and the public were not favorable to this increase. The reception of the work of the commission seems to have effectually, decidedly and finally settled that question in the affirmative. However that there might be no question or controversy with regard to the facts upon this point, the bar association has, within the last two weeks, caused to be printed and circulated among the members of the bar of the State, among other questions, the following: "Is the passage of the joint resolution of 1891, increasing the number of judges of the Court of Appeals, necessary or desirable?" A circular was sent out asking replies to this question and postal cards printed with the address of the secretary and the question ready for signature, were distributed to over 2,000 members of the bar of this State. Up to

this time 567 responses have been received from lawyers and law firms, of which 506 favor the passage of the joint resolution, while 61 oppose. This shows

that about 11 per cent of the bar of the State favor some plan other than the one proposed, and that between 88 and 89 per cent have answered the question in the affirmative, favoring the resolution.

For the purpose of arriving at the sentiment of the bar, and giving circulation to the questions among its leading members, the circulars were sent, first to all members of the bar association; second, to the lawyers in every county holding official positions, namely, county judges, surrogates and district attorneys; third, to the well-known leaders of the bar throughout the State; fourth, a reliable lawyer in each county was requested to furnish the names (of the leading members of the bar in his county.

Thus the sentiment of the bar as a body has been arrived at with absolute certainty, and while the numbers of responses is not large considering the number of lawyers, it clearly represents the sentiment of the entire profession; but it is well known to be very difficult to get a lawyer to write his name without hope of compensation. There certainly can be no question but that upon a matter of this character the bar represents the sentiment of the public and controls it.

The necessity for some relief seems to be beyond question, and that this necessity exists, and will exist for some time to come, to as great or greater an extent than heretofore, is plainly evident from an examination of the facts in relation to it.

On July 3, 1890, the clerk of the Court of Appeals addressed to Louis Marshall, Esq., secretary of the committee on Court of Appeals of the constitutional commission, in response to a resolution of that body, a statement of the work of the court from which the following is condensed and tabulated:

The court commenced a new calendar on Monday, October 7, 1889, upon which there were 763 appeals from judgments aside from the appeals from orders. During the session of the court for the year ending June 26, 1890, there were disposed of by dismissal, etc., 53 causes, argued or submitted 385, leaving of the 763 cases on the calendar, 325 not argued or disposed of during the year. This very clearly represented the amount of work in excess of the ability of the court during that time. That is to say, while the court disposed of 438 appeals from judgments by argument or dismissal, it was obliged to leave 325 like appeals undisposed of, of the 763 on the calendar, thus disposing of 57 per cent of the appeals from judgments, leaving 43 per cent undisposed of. That seems to be a fair test of its capacity and is adopted because it is official and the figures accessible, besides it affords good ground for comparison with the year beginning on the 1st of January, 1891, six months after the close of the time of the year given above.

At that time the court made a new calendar, which was turned over to the Second Division. In February a calendar was made up of causes not upon the calendar made at the beginning of the year, and containing the returns filed on or after January 1, 1891. This calendar contained 166 appeals from judgments. On June 1 another calendar was made up containing 235 appeals from judgments. The January calendar for 1892 completing the returns filed in 1891 and showing the undisposed of cases of 1891, contains 357 appeals from judgments, making in all 758 appeals from judgments, as against 763 like appeals during the year '89 to '90, showing a difference of only five in the number of appeals taken.

It is to be presumed that the number of appeals will increase rather than decrease. During the year 1889

to June, 1890, 325 appeals were left undisposed of. During the entire year ending January 1, 1892, 357

causes which have gone on the new calendar were left undisposed of, showing a larger number of accumulated cases during that year than the previous one. It is however true that during January and February, 1891, the court disposed of a number of causes upon the calendar subsequently turned over to the Second Division, so that the difference in number of cases disposed of is probably in favor of 1891. It nevertheless leaves 357 causes as accumulated for the year, showing that during the last year the court was able to dispose of 53 per cent of the appeals from judgments, in which returns were filed during the year, leaving 47 per cent undisposed of. There is certainly no disposition on the part of the profession or the public to exact more work from the present able and industrious mem bers of the court, and any effort to curtail argument or examine cases less critically than now would not meet with the approval of either lawyers or clients. The Second Division has been in operation for over three years, and has still a large unfinished calendar and must certainly continue until October to complete it. It is thus apparent that it is impossible for the Court of Appeals to transact the business of the State without assistance of some kind. A proposition to limit appeals has met with a most decidedly unfavorable response and is, so far as the bar of the State is concerned, impracticable and impossible. There is not the remotest possibility of such a step being taken and either the present amendment must be passed or the delay continue. On the other hand, the Second Division has taken from the ranks of the judges who should sit at Circuit seven men, being about one-sixth of the entire force of the Supreme Court, and more than one-fourth of the number of judges of the Supreme Court sitting at Circuit, exclusive of those engaged in holding the General Term. That is to say, the Second Division cripples the business of the State to the extent of depriving the Circuit and Special Term of more than one-fourth of the number of available judges, so that in the Third District, by way of illustration, but two judges remain for the entire work of the Circuit and Special Term and at chambers.

These judges should be returned to the Circuit or their places filled, in order that the business may be done, and in case the Second Division is disbanded and these judges return to Circuit, it must necessarily be assumed that the business coming to the Court of Appeals from the Supreme Court will be increased 25 per cent by reason of the fact that delay at the Circuit will be removed to the extent of 25 per cent, and the business to be done by these seven judges will, to a greater or less extent, find its way to the Court of Appeals.

These facts, together with the almost unanimous voice of the bar and people, seem to leave no doubt as to the proper course to be pursued in view of the fact that no other remedy is at hand until another Senate shall have been elected and acted on an amendment or the remote possibility of relief by a constitutional convention.

What is demanded by the legal profession is relief to the Court of Appeals by an increase of its numbers, in order that appeals may be disposed of without crippling the lower courts, and it should be granted as speedily as possible by the passage of the resolution now before the Legislature.

Submitted on behalf the State Bar Association.
J. NEWTON FIERO.

President.

UNITED STATES SUPREME COURT AB-
STRACT.

CRIMINAL LAW-EVIDENCE OF OTHER CRIMES.-On a joint trial of two persons for murder, committed in a

Black, 82 Va. 567; Merritt v. Swimley, id. 433; Clark v. Bayer, 32 Ohio St. 299; 30 Am. Rep. 593; Chapsky v. Wood, 26 Kans. 650; 40 Am. Rep. 321, and editor's note, citing and commenting on the following cases, among others: Verser v. Ford, 37 Ark. 27; Lyons 7. Blenkin, Jac. 245; U. S. v. Green, 3 Mason, 482; Wilcox v. Wilcox, 14 N. Y. 575; Matter of Waldron, 13 Johns. 417; Pool v. Gott, 14 Law Rep. 269; Durmain v. Greynne, 10 Allen, 270; State v. Libbey, 44 N. H. 321, qualifying State v. Richardson, 40 id. 272. See also In re Scarritt, 76 Mo. 565; 43 Am. Rep. 768, and notes; Brooke v. Logan, 112 Ind. 183; 2 Am. St. Rep. 177, and notes. In this case Mr. Freeman sums up what he deems the weight of American authority on this point as follows: "A father can, by agreement, surrender the custody of his infant child to another, so as to make the custody of that other legal." To the same effect, see Hurd Hab. Corp. 528; Tyler Inf. 283. So that we have, as the law on the subject so far as involved in this case, as follows: (1) The father during his life-time, and after his death the mother, is entitled to the custody of the person of their infant child, because by the law of nature, it is theirs to care for and bring up, and this right is recognized and enforced by our statute. (2) But such right is not absolute, for the welfare of the infant may require the court, in the exercise of its sound discretion, to leave or intrust the custody to another. (3) The feelings and rights of one whom the father has put in the place of parent, and between whom and the child such relation has created mutual affection, are not to be subject to the whim and caprice of the father; but unless it appears that the best interests of the child imperiously demand it, the court, in dealing with relations so delicate, so easily set ajar irreparably, will follow the discreet course of letting well enough alone. (4) And to enable them to do this, the writ applied to this class of cases is of an equitable nature, and we should turn our back at once upon this qualified estoppel, if the infant's moral or physical welfare clearly pointed another way. W.Va. Sup. Ct. of App., Dec. 7, 1891. Green v. Campbell. Opinion by Holt, J.

clear that if one is guilty of larceny he is not guilty of embezzlement, and if guilty of embezzlement he cannot be guilty of larceny. Fulton v. State, 13 Ark. 168; Com. v. Simpson, 9 Metc. 138. How then can we say that an indictment for one will be a sufficient notice to a defendant that he will be tried for the other? Is it right not is this the technical rule, but as between man and man, the State and the citizen, is it just-to attempt to deprive him of his liberty without giving him a fair and clear statement of the facts upon which his guilt rests? We think not. It is immaterial what an offense is named. The Constitution means the defendant shall have a right to know of what he is accused. Not the evidence, but a clear statement of such facts as constitute the statutory offense (in this case), so that he may know how and what he must meet. Huntsman v. State, 12 Tex. App. 619; Baker v. State, 6 id. 347. Indeed the writer regards the argument of Judge Hurt in Huntsman v. State as unanswerable, and would be perfectly willing to decide this case upon that authority alone. So we conclude that these two offenses as to the sections we have considered are so materially different and distinct that the Legislature, having defined each, cannot permit a defendant to be put upon trial for either without an indictment that would advise him of the nature and cause of the accusation; and we hold, that as the section now stands, a mere general charge of larceny will not be sufficient to sustain a charge of embezzlement. In other words, no one can be prosecuted for a felony except upon an indictment for that felony. that a man can be indicted for one crime and convicted of a different one is a denial of the right to demand the nature and cause of the accusation. If the Legislature desires to make larceny and embezzlement one, they can do so by providing they shall have the same ingredients; but so long as by the legislative declaration they are committed by different classes of persons, by persons bearing different relations to each other, and under different circumstances, they are distinct crimes, and, under the Constitution, each crime must be described in the indictment; and it follows a description of one will not fit the other, and it is not competent for the Legislature to dispense with a material averment of a crime that it has defined. Mo. Sup. Ct., Div. No. 2, Nov. 16, 1891. State v. Harman. Opinion by Gantt, P. J.

To say

Arm

INFANCY-CUSTODY OF INFANT-RIGHTS OF FATHER. -When a parent has transferred to another the cus. tody of his infant child by fair agreement which bas been acted on by such other person, to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of custody will materially promote his child's welfare, moral or physical. The welfare of the infant is the polar star by which the court is to be guided in the exercise of this discretion; and the court, when asked to restore, is not bound by any mere legal right of parent or guardian, but is to give it due weight as a claim founded on human nature, and generally equitable and just. strong v. Stone, 9 Gratt. 102-107; Church Hab. Corp., §§ 440-442. "The court is in no case bound to deliver the child into the custody of any claimant or of any other person, but may leave it in such custody as the welfare of the child at the time appears to require." Hurd Hab. Corp. (2d ed.) 461. The court does not establish a permanent custody, but one intended to continue until a change of circumstances shall, in respect of the infant's welfare, require a change of custody, or until the infant has reached the age of fourteen years, when by statute he may nominate his own guardian, subject to the parent's right and to confirmation by the court. Code, p. 673, § 4, chap. 82. See Coffee v

INFANCY-STIPULATION OF COURT-EFFECT.-A stipulation by an attorney that the action shall abide the event of another action pending, does not bind an infant party unless approved and ratified by the court upon a showing that it is for the interest, or at least not prejudicial to the interest, of the infant. While it is true, as a general rule, that an attorney may bind his client by such a stipulation as this, it does not follow that the attorney employed by a guardian ad litem to represent the minor defendants may do so. The authority of the attorney cannot be greater than that of the guardian who employs him. It is necessary therefore to consider what is the authority of the guardian. The statute regulates the appointment of guardians ad litem, but does not define their powers. When ap

pointed for an infant defendant, it is to defend the interests of the infant in the action. Some of the decisions limit his powers so as practically to deprive him of all discretion or exercise of judgment in conducting the defense. Thus it has been held that the answer made by the guardian should be a full defense, specifically denying the material allegations, without regard to the truth of the denials as to any thing which may be prejudicial to the minor (Varner v. Rice, 44 Ark. 236; Pillow v. Sentelle, 39 id. 61; Brenner v. Bigelow, 8 Kans. 496); that he cannot waive any rights of the minor (Cartright v. Wise, 14 Ill. 417; Litchfield v. Burwell, 5 How. Pr. 341: Howell v. Mills, 53 N. Y. 322); nor make admissions either in the answer or for the purpose of the trial. Ashford v. Patton, 70 Ala. 479; Quigley v. Roberts, 44 Ill. 503; Tucker v. Bean, 65 Me. 352; Newins v. Baird, 19 Hun, 306. The decisions we