the country folk, who after having made up their minds to rely upon their own unaided eloquence will surely lose heart at the last moment and run to the lawyer. And here comes the first batch tumbling up stairs, a dirty "butty" collier, who has not even taken the pains to wash himself for court day, his burly, masterful wife, and his witnesses, two pitmen, one of whom rejoices in the name of "Killers" Grant. As none of the party can either read or write I have to make a wild guess and dub my man Achilles, which classic cognomen he accepts without compunction. Twenty minutes suffice to despatch this batch, for I hear the noise of many voices below. The needful guinea is duly paid and party No. 1 adjourns to the court to make room for No. 2, and so on till at 10:30 comes a lulì, and I take a final look at my papers and fix myself up for the court-room. At the last moment a belated litigant rushes in and half past eleven strikes from the church tower before I find myself outside the office and on the way to battle.

The registrar has of course been sitting since 10, and has by this time disposed of all the undefended causes so that I have scarcely donned my gown and entered court when the judge's door opens, and with a quick resolute step, Sir Rupert moves to his bench, bobs to the bar, and the first case is called.

The first case happens also to be my friend H.'s first appearance, and he is sadly overweighted by the grizzled veteran on the other side. The judge however with his usual kindness to beginners, helps H. through, and if he does not exactly score a victory, yet he does not suffer a thorough-going defeat, and as he confesses to all afterward, "it wasn't half so terrible after all, you know."

And now it is noon, the hour fixed for juries. In five minutes the seven jurors are sworn, and "Mr. Attorney-General" is opening for the plaintiff. S. is a self-made man; beginning as an office boy he has made his way by force of ability; he owes every thing to the County Court, for it is the reputation acquired there which has built up for him a practice now second to none in the county. Personally he is not popular with his brethren, but the plain truth is that he has been too successful to be popular. They look at him and think of clients lost. Having no old grudges against him myself, I can judge him more fairly. I esteen him a model advocate, and a good man to deal with. To-day he will probably earn 30 or 40 guineas, for it may safely be assumed that he is engaged in at least three-fourths of the cases on the list.

Now let us take a look at the judge. Stout, with a grizzled beard, a broad forehead, and eyes that almost speak, Sir Rupert is a terror to bogus witnesses and all the other frauds who haunt a courthouse. He is hardly less dreaded by the slow coaches of the bar who cannot keep up with his intellectual pace. But he is beyond all question the right man in the right place.

Thoroughly acquainted with the staple trades of the district and their intricate customs and rules, and a warm but honest friend of the working man, his decisions are accepted with general content, seldom appealed and still seldomer reversed. His patience with beginners is inexhaustible for a time, but after a certain period he evidently considers their novitiate passed, and thenceforth they must take their chances with the rest. One thing he hates-prolixity. Before him an advocate must be quick, willing to take points without laboring them, and economical of speech. But whilst we are discussing the judge our trial is going rapidly on.

In an hour S. has opened his case and called his evidence and my turn has come. Ten minutes suffices

for my opening, half an hour for my three witnesses, and then in accordance with our usual practice we waive our further speeches and leave the case with the court. Sir Rupert sums up carefully and fully with a distinct intention of showing the jury which side ought to win, and at ten minutes after two the jury are ready with a verdict, and the case involving a question of some £40 is decided. The total expense of the action to the losing party will probably be about 7 or £8 taxed costs of, the other side, and £10 to his own attorney, and from the inception of the suit to its final decision not six weeks have elapsed. It is in this way and in tribunals such as these, that the great bulk of English litigation is disposed of. No wonder the County Courts are popular.

no man.

The jury are no sooner out of the box than the next case is begun. The judge takes his chocolate and biscuits on the bench, and the attorney who wants his lunch must get it as best he can, for the court waits for One cumbersome account case is relegated to the registrar, two or three are settled by consent, every one works with a will, and by five o'clock we see the list conquered and the judgment summonses reached. By six, the court-room is silent and de serted, and County Court day is over.

As it is a fine evening we may rely upon meeting most of our confreres on the cricket field, and accordingly thither we repair and close the day with "beer and skittles."

CORRESPONDENCE.

A CORRECTION.

Editor of the Albany Law Journal:

In your valuable journal of date July 19, 1884, page 45, I have observed an article headed "The Presump. tion of Survivorship."

Rule one reads as follows: "There is no presumption as to the order in which two or more persons died who are shown to have perished in the same accident, shipwreck or battle. The law regards them as having died at the same instant."

Your first reference is to the California Civil Code, section 1963, subdivision 40.

You commit two errors. 1st. It is not the Civil Code, but the Code of Civil Procedure, which regulates this subject-Evidence-Indirect Evidence, Inferences and Presumptions--commencing with section 1957.

2d. Subdivision 40, section 1963 of the Code of Civil Procedure, provides that where two persons perish in the same calamity, such a shipwreck, battle or conflagration, and it is not shown who died first, etc., survivorship is presumed from the probabilities resulting from strength, age and sex, according to the following rules.

It is unnecessary for me to quote the entire section, as you may understand its provisions by a glance at the section itself.

I believe there has been no change in section 1963 since the adoption of our Codes in January, 1873. Yours respectfully, W. F. HENNING.

NAPA, Cal., July 26, 1884.

The Albany Law Journal.

ALBANY, AUGUST 16, 1884.

CURRENT TOPICS.

THE Superior Court of the city of New York has had several judges of remarkable ability. If not representing one of the greatest of these intellects, the name of Bosworth is at least one of the most familiar to our profession, and reminds us of a long, useful and honorable professional life. Fitting commemoration of the death of this excellent man was had at a meeting of the bench and bar of the city on the 13th of June last, and the proceedings have now been published in a pamphlet, accompanied by a portrait of the judge. Addresses were made by Messrs. David Dudley Field, William Allen Butler, Edwards Pierrepont and ex-Governor Hoffman. Judge Bosworth was a justice of the Superior Court twelve years, and at one time chief justice. Later he was a member of the board of police commissioners. After his retirement from the bench his services were in great request as a referee. His ten volumes of reports will give him that professional immortality which most lawyers fall short of. In his remarks at the bar meeting Mr. Butler aptly characterized Judge Bosworth as follows: "In Chief Justice Oakley we admired his massive intellect and native judicial instinct; in Chief Justice Duer, his ardent, impulsive love of justice, his large and various learning, his discursive but well trained faculties; while in Chief Justice Bosworth what we specially admired, if I mistake not, was his acute, clear and discriminating mind, aided by the natural vigor of his intellect, which gave him, if not a larger grasp of all the principles of the law, a firmer grasp of those which were required for constant application to the subjects of his special inquiry, than belonged to other

men.

With him the judicial faculty was like a true, well-tempered blade, remarkable not so much for its polish as for the keenness of its edge, and the sharpness of its point, never wielded for mere display, never turned aside in irrelevant contests, and always fairly and fearlessly used in the interest and service of justice. As a member of the junior bar, when Judge Bosworth came on the bench in 1851, and during his term of twelve years' service, I was often before him, and it was to me always most interesting and instructive to try causes in his court. He possessed qualities which, while perhaps not indispensable for a proper exercise of judicial anthority, greatly enhance the pleasure and satisfaction of the practitioner. His imperturbability, his patience, his great sagacity, his quickness and dexterity, if I may so call it, in detecting and defeating technical, insufficient or anworthy causes of action or defenses, the ease with which he disposed of difficult questions of law, the clearness with which he presented questions of fact to the jury, the quiet humor which he VOL. 30 No. 7.

was fond of exhibiting without in the least detracting from the dignity of his office, the absolute impartiality with which he held the scales of justice, all these are traits which many of us can recall with special satisfaction. The calm serenity and even temper which distinguished him then were conspicuous in all his life, the later years of which were full of respect and honor, but it is to his judicial career that I chiefly recur, and to his judicial record, as made up in the volumes of Sandford and Duer, and the ten volumes of his own reports. It is a record of faithful, unwearied and fruitful labor in the high and responsible office which he filled."

In the remarks of Judge Pierrepont we find the following of especial interest: "I think that there has been no instance in which a lawyer has reached eminence in our profession who was born to fortune, unless he lost it while young. There have been some apparent exceptions, but investigation has proved that they were not exceptions at all. More than eighteen hundred years ago the rich young man learned that he could not enter the kingdom of Heaven unless he relieved himself of his riches; and experience proves that it is equally hard for a rich young man ever to reach the inner temple of the law. For many years the case of Lord Mansfield was cited as an instance to the contrary. This rested upon the authority of a letter written by the Earl to a literary man who wished to write the life of the lord chief justice, then in the plenitude of his greatness. In this letter now extant the lord chief justice says: 'My success in life is not very remarkable; my father was a man of rank and fashion. Early in life I was introduced into the best company, and my circumstances enabled me to support the character of a man of fortune. To these advantages I chiefly owe my success. Many years later, Lord Chancellor Campbell uncovered the utter snobbery of that untruthful letter, and showed that William Murray, the embryo lord chief justice of England, was the eleventh child of a prolific Scotch woman, who bore fourteen paupers to her poverty-stricken lord, and that her boy William was tattered and barefooted, living for years on oatmeal porridge, with fish occasionally in their season, and that his wonderful success was due entirely to his great natural abilities and intense ambition, stimulated by the mortification of his extreme poverty. Lord Campbell says: 'His circumstances did not enable him to support the character of a man of fortune, and he did not owe his success to the advantages which he then enumerated,' and characterizes Lord Mansfield's letter as an ebullition of aristocratic inso lence.'" Like all good men, as he knew the world better, and realized its trials, its temptations and its sorrows, he grew lenient toward the shortcomings of his fellow-men, and in later years he seemed to have adopted as the motto of his life the words of the martyred Lincoln: With malice toward none; with charity for all; with firmness in

* * **

execution shall be stayed. As to facilitating an appeal, I cannot. I hope that by this time next year the law will be very different from what it is now. I think the state of things at this moment, which enables appeals in this matter, is a scandal on the administration of the law. It is a perfect scandal. I hope it will be altered next year, if not within a month or two. It is very good for the bar and for solicitors; but it is utter destruction for clients. Clients little know how they are dealt with. I quite understand solicitors enjoying the sport. I hope and trust that before long solicitors will find that their clients will refuse to pay their bills when they most unreasonably take cases to the Court of Appeal for £50, £60, or £100. If they take my advice they will refuse to pay the solicitors' bills. There is power to make the solicitors pay the costs out of their own pockets; and depend upon it, this will be inflicted if they unreasonably take cases up for small sums." The Times pertinently remarks that the numerous appeals are necessitated by the errors of the judges, and that a man against whom a wrong judgment has been rendered for £20 has just as good a right to an appeal as if it were for £20,000. The truth is, the bench are everywhere becoming too apt to measure the importance of a litigation by the amount in controversy.

NOTES OF CASES.

THE THE first part of 17th Vroom's Reports is at hand, and contains several interesting cases. These reports are beautifully printed. It makes a lawyer feel like a gentleman to read such luxurious books. In Smith v. New York, Susquehanna and Western R. Co., p. 7, a statute prohibiting travelling on Sunday except for necessity or charity, permits any railroad company to run one passenger train each way on Sunday for the accommodation of the citizens of the State. It was held that travel on such trains, although not for necessity or charity, is lawful. Beasley, C. J., observed: "I think it plain that this exceptive clause has the effect to give, not only to the company the right to run the specified trains on Sundays, but also confers the right upon the citizen to use such trains for ordinary travel. It is by this construction alone that the clause can be rescued from a liability to the charge of being nugatory and absurd. It would seem undeniable that it was the legislative intent either to authorize the common use of the trains in question or to sanction the doing of this business by these companies founded, almost entirely, on perpetually recurring violations of law. Unless, by intendment, it is to be understood that quoad the trains in question, the citizen was absolved from the penalty denounced against traveling on Sunday, the boon granted to the railroads would, in substance, be the privilege of running their trains provided they carried no passengers in them. I say this, in substance, would be the effect of the concession, for the class of persons who

would use such means of transit in works of necessity or charity would be comparatively so limited that their contributions to the expenses of running the trains could have no appreciable effect. The alternative is alone presented, to hold that general travel, to the extent in question, is permitted, or that the privilege granted in the proviso is utterly useless and vain. Nothing is perceived in this act in its application to its subjects that seems to lead to the adoption of the latter branch of this alternative. The language of the proviso itself is general. The Sunday trains are to be run for the accommodation of the citizens of this State'- that is, for their accommodation for all ordinary purposes, and not in the exceedingly restricted sense to accommodate them when engaged in works of necessity or charity. Besides, this provision is a remedial provision. It was passed in the year 1873 in the form of a supplement to the law relating to vice and immorality. The only conceivable defect existing in the old law, which it can be supposed this supplement was designed to amend, was its total prohibition of general travel on Sundays — a prohibition which, if rigidly enforced, would have put an end to all travel on the designated days in or through this State, and thus, in a measure, placed in trammels the inter-communication between the various parts of the country. It will be thus observed that if the interpretation of this proviso, which is claimed for the defense in this case, be correct, then we have here a remedial act whose tendency is not in any In short, standdegree amendatory or corrective. ing on such ground, we have here a legislative act that was intended to be useless to the companies to which the privilege was given; useless to the citzens of this State, and useless to the country at large. Such a construction is opposed to all the usual legal rules applicable to this subject. The legislative intention must control, and from the nature and purpose of this proviso it was the evident design to permit the use, in ordinary travel, of these specified trains."

In Pierce v. Union District School Trustee, p. 76, a statute forbids the exclusion of children from the public schools on account of "religion, nationality, or color." It was held that the exclusion of negro children was unlawful. Dixon, J., observed: "Consel further urges that since, under the rule of the trustees, an Italian (for example) as dark as the relator's children, would have been admitted, the exclusion was therefore owing, not to 'color,' but to race, which the statute does not prohibit. But I think the term 'color,' as applied to persons in this country, has had too distinct a history to leave possible such an interpretation of the law. Both in the statute and in the regulations of the respondents, persons of color are persons of the negro race." This was an ingenious quibble, but it is singular that neither counsel nor court seem to have paid any attention to the word "nationality," which at all events is insuperable.

In Condict v. Mayor, etc., p. 157, it was held that a municipal corporation is not liable for an injury occasioned by the negligence of a driver employed by its board of public works to remove ashes and refuse from boxes and barrels placed on the sidewalks, to a public dumping-ground, though the driver was at the time driving a horse and cart owned by the city, and his negligence was in making a dump from the cart. Dixon, J., giving the opinion of the Court of Errors and Appeals, furnishes the following interesting resumé of the decisions on this point: "In the execution of the duties of a municipal government the services of inferior officers having only ministerial duties to perform, and of workmen and of other employes, are required for the transaction of its business; and the principle

on which the cases above cited were decided would

be of little importance if the municipality was liable to actions for the negligence of such persons. It has been held that with respect to such officers and employees, the doctrine of respondeat superior does not apply. Thus, a city is not liable to an action for the negligence of its assessor and collector in assessing and levying taxes (Alger v. Easton, 119 Mass. 77); nor for the wrongful acts of its police officers in the enforcement of ordinances (Buttrick v. City of Lowell, 1 Allen, 172; Calwell v. City of Boone, 51 Iowa 687; S. C., 33 Am. Rep. 154); nor for the negligence of its officers and agents in executing sanitary regulations for preventing the spread of contagious disease (Ogg v. City of Lansing, 35 Iowa 495; Brown v. Inhabitants of Vinalhaven, 65 Me. 402); nor for the negligence of the members of its fire department (Jewett v. City of New Haven, 38 Conn. 368; Smith v. City of Rochester, 76 N. Y. 506–513; Boone on Corp., § 301). A person who has suffered an injury by reason of the neglect of the selectmen, or of the physician employed by them, in the performance of duties imposed upon town officers in relation to the small-pox, has no remedy against the town therefor. Brown v. Vinalhaven, supra. One who is injured in his person or property by the negligence or misconduct of members of a fire department, when engaged in extinguishing a fire, can not hold the city liable in damages, though the fire department was organized under provisions of the city charter, and its members were selected and paid by the city. Hafford v. New Bedford, 16 Gray, 297; Fisher v. City of Boston, 104 Mass. 87; Jewett v. City of New Haven, supra; Howard v. City of San Francisco, 51 Cal. 52; Hayes v. City of Oshkosh, 33 Wis. 314. A town is not liable for an injury sustained by reason of the negligence of a laborer employed by one of its highway surveyors to aid him in performing the duties of his office. Walcot v. Swampscott, 1 Allen, 101. Nor is a city liable for an injury caused by the negligence of a teamster employed in transporting stone to repair a highway by the superintendent of streets, who is charged with the duty of keeping the streets in repair. Barney v. Lowell, 98 Mass. 570. A city is not liable for the negligence of an employee of the commissioners of public charities in driving an ambulance-wagon belonging to

the city, which struck and caused the death of the plaintiff's intestate. Maximilian v. Mayor of New York, 62 N. Y. 160." See Robinson v. City of Evansville, Ind. ; S. C. 44 Am. Rep. 770.

In Casebolt v. Ackerman, p. 169, the Court of Errors and Appeals reaffirm Merrit v. Day, 9 Vroom, 32, and hold that a payment of interest by one partner after dissolution before the statute of limitations has attached takes the instrument out of the statute as to all the partners. We learn from the briefs of counsel that this doctrine, founded on Whitcomb v. Whiting, Doug. 652, has been followed in Massachusetts, Connecticut, Michigan, Virginia, North Carolina, Maine, Rhode Island, Delaware and Wisconsin; and that the contrary has been held in Indiana, Illinois, New Hampshire, Pennsylvania, Alabama, Tennessee, Ohio, Kansas, Nebraska, Florida, Mississippi, New York, Michigan, and by the United States Supreme Court. See Kallenbach v. Dickenson, 100 Ill. 47; S. C., 39 Am. Rep. 47. Also in the former class, Burgoon v. Bixler, 55 Md. 384; S. C., 39 Am. Rep. 417. See also 26 Am. Rep. 709; 28 id. 511.

THE PRESUMPTION OF PAYMENT — III.

RULE V. A presumption of payment other than by lapse of time will arise from the production of a receipt from the creditor (a); from the possession by the debtor of the security or obligation(b), or from its cancellation (c); from the payment of a later debt(d); from the passing of money between debtor and creditor after the debt is due(e) from the custom of trade(f); or from other cir cumstances raising an inference of payment.(g)

ILLUSTRATIONS.

(A.)

1. A. claims a horse in B.'s possession. B. produces a receipt signed by A. for a sum of money for a horse. The presumption is that A. had sold the horse to B. and had received the purchase money.(1)

2. B. sues C. on a note payable in 1835. C. produces a receipt given by B. to C. subsequent to the maturity of the note, and expressed to be "in full of all demands." The presumption is that the note has been paid. (2)

3. A. gave an order on R., stating that S. wished to buy goods of R., and that A. would be responsible for

S. S. indorsed on the order a receipt for goods "to the amount of $100." The presumption was that S. had received the goods from R. to that amount. (3)

4. A. sues B. on an account, who pleads payment, and produces a check for the amount drawn on his bank and indorsed by A. This is presumptive evidence of payment, though without the indorsement by A. it would not be. (4)

5. A. sued B. on a note made by the latter. On the note were written these words: "Cr. by cash rec'd, $20, through which a pen mark had been drawn. The presumption was that the sum of $20 had been paid on the note.(5)

(1) Obart v. Letson, 17 N. J. L. 78 (1839). (2) Marston v. Wilcox, 2 Ill. 270 (1836).

(3) Rawson v. Adams, 17 Johns. 130 (1819); Child v. Moore, 6 N. H. 33 (1832).

(4) Egg v. Barnett, 3 Esp. Cas. 196 (1810).
(5) Graves v. Moore, 7 T. B. Mon. 341 (1828).