parties whose name appeared, and the reply was "I am informed that he is the son of a former judge of the Supreme Court of the State of New York of that name," adding of another of the signers "I am advised he is a very wealthy man." After such a mode was a bond for the sum of $100.000 obtained and approved.

In setting aside the supersedeas Chief Justice Waite said: To allow it to stand and to operate as a stay of execution upon an important decree until the case can be reached in its order on our crowded docket would be a reproach upon the administration of justice.

This bond is as much false as if it had been forged. The persons who signed it are not in fact what they were represented to be.. We have no hesitation in setting aside the approval of the bond. This application is addressed to our judicial discretion, and is based on the alleged ignorance of the officers and agents of the appellant corporation as to the character of the bond they got accepted. They insist in the most positive manner that they were deceived, and that they actually believed the security they offered was ample. The character of the president is vouched for under oath by many persons occupying high positions in public and private life, and they all say 'they do not believe he would knowingly countenance or in any way participate in or suffer an attempt to impose on the Supreme Court of the United States, or any justice thereof, a fraudulent or worthless bond.' But the fact still remains that he did present such a bond, and failed to disclose what he actually knew in reference to its procurement. When appealed to, he, to say the least, repeated the falsehoods that had been told to him, and kept back the fact that the securities had all been 'bought' for trifling sums, and that he had furnished the money to make the purchase, when he knew, or ought to have known, that the price paid was entirely incompatible with any idea of compensation for pecuniary responsibility incurred in good faith. Taking the whole case together, we think it quite as incumbent on us to refuse to accept a new bond as it is to set aside the old one."

RECENT LEGAL LITERATURE.

ABBOTT'S LAW DICTIONARY.

This work," says Mr. Abbott in his preface, "is strictly a law dictionary, rather than what may be called a dictionary of the law. It deals with the meanings of law terms. *Every reader of the reports knows that there are numerous decisions which expound the judicial view of the meaning of some term involved. They are of great value in legal lexicography, but have never been systematically collected or even indexed. The great foundation of this dictionary is in these decisions. The leading American reports, to the extent of at least half, have been patiently examined page by page by the author or assistants working in company with him, for cases of this character. Other reports, including the notable English ones, have been examined as thoroughly as practicable, by aid of all ready guides to their contents. The judicial definitions thus collected have formed the basis of the present work. There have been added a liberal selection of extracts from kindred

Dictionary of terms and phrases used in American or English jurispradence. By Benj. Vaughan Abbott. In two volumes. Little, Brown & Co. 1879.

works, thus making the volumes, in a good degree, a digest of the modern English law dictionaries." When we first read this announcement we could not help feeling a good deal of doubt that the book itself would bear out the wholesale statements of its preface. We could scarcely believe that a digest of the modern English law dictionaries and a collection of the words and phrases which have been judicially construed by the courts, and which are to be found in every volume of the reports from the first one issued to the latest which is upon our table, could be contained in a half dozen volumes, much less two. The subject of the interpretation of words and phrases is larger than any other we know of. We have sometimes seen a volume of reports which did not contain a single case upon the extensive topics of Contracts or Negligence, or even Evidence, but we have never met one that did not have a decision in which the construction of some word or term was in some way

in issue, or in which a definition was given by the court. For this reason we did not expect that the work could be all that it was represented to be. We were not, however, regardless of the fact that there was room for one which should present the subject fairly well, and that this was perhaps all that was in the mind of the compiler when he concluded his labors. He has himself confessed that the work was only partially done, for he says that the reports, "to the extent of at least one-half" only had been thoroughly examined. But we have gone far enough into the work to be able to state positively that even this much of the announcement has not been performed. If the leading American reports to the extent of at least one-half, "have really been **patiently examined by the author or his assistants working in company with him," for cases construing words and phrases, all we can say is that the author must number among his assistants a most extraordinary proportion of blind men.

We premise, of course, that in the half of the reports which it is said have been thus treated, the reports of the State of New York in which the author's labors are carried on, are included. But as there are a very great number of volumes of New York reports, we will restrict this to the reports of the Court of Appeals, the highest court in the State. These certainly would be likely to be first consulted by the compiler and his assistants. Now how well has this "page by page" examination been performed? We take the letter "A" as a sample, and the first seventy volumes of the New York Court of Appeals Reports as a test. After a patient examination which we give to the reports we look into the Dictionary. We turn to the word "according”—a word by the way not infrequent in statutes and contracts-but we find no such word in Mr. Abbott's Dictionary. We next look for the phrase "adverse interest," but with the same success. Pursuing our examination we are astonished at finding no mention of "agreement, " and nothing said about "alias" " or "and." Going carefully through the letter "A" again we find that the Dictionary contains no such titles as "agreeably to law,

9966

"any, appertaining,

annual, "application," "arising," or avails." So far as we know these words may have been construed in many other cases in other reports. Our examination has not extended any further than the New York reports. But it must be a sufficient proof of the incompleteness of this work, that the words and phrases which we have just given have all been construed by the highest court of New York, and that not one of them is to be found in Mr. Abbott's Dictionary.

Turning again to titles that are in the Dictionary, the omissions appear to be even more numerous. Con

fining ourselves again to the same letter and reports as before, we find under about" no reference to Hawes v. Lawrence, 4 N. Y. 345; under "accident" nothing is said of Mallory v. Travelers Ins. Co., 47 N. Y. 52. Under account," Spear v. Wardell, 1 N. Y. 144, is not cited; nor under acknowledged," Baskin v. Baskin, 36 N. Y. 416; nor under "action," Borst v. Corey, 15 N. Y. 505, and Waltermire v. Westover, 14 N. Y. 16; nor under "adjoining," Holmes v. Carley, 31 N. Y. 289, and re Ward, 52 N. Y. 395; nor under adjourn," People v. Martin, 5 N. Y. 22; nor under adjustment," Mayor v. Hamilton Ins. Co., 39 N. Y. 45; nor under "adoption," People v. Gardner, 45 N. Y. 812; nor under affidavit " Gawtry v. Doane, 51 N. Y. 84; nor under "alien," Wright v. Saddler, 20 N, Y. 320; nor under answer," Strong v. Sproul, 53 N. Y. 497, and Kelly v. Downing, 42 N. Y. 71; nor under assignee," Hight v. Sackett, 34 N. Y. 447. We have gone far enough to show pretty clearly that the work abounds in omissions-that it is not even half done as it purports to be. We shall say nothing about its execution in any other particulars. Its treatment of legal interpretations and its attempts at definitions have been severely criticised in a recent issue of one of our most valued contemporaries. examination has been directed only to show how hurriedly the authorities have been skimmed over and how large a proportion of the cases have escaped the notice of the compiler and his assistants. Meagre as our examination has been, it has satisfied us that if we had taken up all the reports and all the letters instead of only the letter "A" and the New York Court of Appeals Reports, and the same ratio of omissions had continued, we could have supplied the author with material for two additional volumes if not

more.

NOTES.

Our

-Marcus W. Acheson, of Pittsburg, has been appointed to the judgeship of the United States District Court for the Western District of Pennsylvania, made vacant by the death of Judge Ketcham. Judge Acheson is a native of Pennsylvania having been born in Washington county, in that State, in 1832. He was admitted to the bar of Pittsburg in 1852, of which he has been a leading member for many years.-James Z. George, Chief Justice of the Supreme Court of Mississippi, has been elected to the United States Senate from that State.

-As to the possibility of substituting for the gallows some form of death likely to be less painful, Dr. Henry Nachtel, a distinguished French physicist, now in New York, says that the garrote does not always kill the first time, and could not be made successful except in the hands of a skilful surgeon; that administering chloroform violently is very painful; that prussic acid in the eve does not always produce instantaneous death, and must be administered by a physician; that death by strychnine is sometimes accompanied by terrible convulsions and great pain; and that even electricity is not sure, for a man in England was struck by lightning and stripped of his clothes and many bones were broken, and yet he survived it. "Hanged by the neck until dead" seems likely to remain on the statute books for the present.

-A correspondent of the Albany Law Journal_has unearthed two points in criminal practice from the old

reports. In the trial of the Seven Bishops, after the charge to the jury, the following colloquy took place. The Lord Chief Justice: "Gentlemen of the jury, have you a mind to drink before you go?" Jury: "Yes. my lord, if you please." [Wine was sent for, for the jury.] Afterwards the following conversation ensued. Juryman: "My lord, we humbly pray that your lordship would be pleased to let us have the papers that have been given in evidence." Lord Chief Justice: "What is that you would have, sir?" Mr. SolicitorGeneral. "He desires this, my lord, that you would be pleased to direct that the jury may have the use of such writings and statute books as may be necsssary for them to make use of." Lord Chief Justice: "The statute books they shall have." The treating the jury" it is pointed out would probably vitiate a verdict at this day, but the authorities are not uniform. See Van Buskirk v. Dougherty, 44 Iowa, 62; Kee v. State, 28 Ark. 155; Perry v. Bailey, 12 Kas. 539; Redmond v. Royal Ins. Co., 7 Phila. 167. As regards the second point, in Merritt v. Nary, 10 Allen, 416, a new trial was granted because the judge who presided allowed the jury to have a copy of the general statutes in the jury room while deliberating on their verdict. The ancient authority above mentioned does not appear to have been cited in the argument of the latter case.

-Speaking of Rufus Choate, Mr. Congdon in his Reminiscences has the following: At the end of his senatorial term in 1846 he was glad to go back to his law books and the Boston bar. Opinions may differ respecting his attain ments in the science of law; hardheaded old judges like Chief-Justice Shaw perhaps did not think so highly of them as did Mr. Choate's clients, rescued by him from the extreme penalties of the law; but in spite of grave faults of taste, the brilliancy of Mr. Choate, his fervor, passion and verbal opulence put him in the front rank of rhetoricians. Unfortunately he has left little or nothing to justify the great reputation which he attained while living. Posterity can not see his flashing eye, nor mark his dramatic action, nor hear the wonderful intonations which colored and intensified his elecution. His fame will experience something of the actor's ill fortune. But no man was more talked of in his time, which already seems so far away-his habits, his curious learning, his great power of application, his winning way with juries, his classical tastes, and his astonishing handwriting, the most illegible which I ever saw. I recall one occasion when anybody who could have read one of his letters would have been entitled to a handsome gratuity. I was studying law in the office of the Hon. Thomas D. Eliot, the well known member of Congress. There was a case in which both Mr. Choate and Mr. Eliot were engaged; and the former sent down to his junior instructions for making an immediate motion of some importance. Not a man in the office could read the letter, not Mr. Eliot nor Mr. John A Kasson, his partner, nor any one of the students. Here was an unpleasant dilemma! A let ter to Mr. Choate asking for explanation was suggested, but time pressed, and there was no certainty that the answer would be any more readable. At last somebody proposed a telegraphic dispatch, with a request for an immediate reply. It was argued conclusively that the electric fluid didn't write splatter-dash hieroglyphics. The plan succeeded perfectly, and the motion was made in time.

The Central Law Journal.

ST. LOUIS, FEBRUARY 13, 1880.

PROOF OF HANDWRITING BY COMPARISON.-I.

prejudice which long kept parties to the record and parties in interest from testifying, had little foundation in reason. It is axiomatic that the trial of an issue of fact, in judicial proceedings, is a search after truth, and whatever rules or methods tend to make this search more easy and effectual may be safely adopted. And it matters not that old rules and methods, though long cherished by the courts, but which are less effective, may be trenched upon.

mation of the writer, the mischiefs resulting from these innovations were not overstated by him, still it does not therefore follow that those technical rules and usages in the law of Evidence, which have grown up in the earlier history of the common law, many of them based upon fancied rather than real grounds, and which serve to prevent rather than to promote the right administration of justice, should remain inviolate. It has always been the boast of the common law that it is flexible and conforms to the demands of an advancing civilization. And it is equally the dictate of right reason and human experience, that no length of time should render any rule of law sacred which is not founded upon principle, and especially where such a rule subverts, rather than subserves, the right administration of justice.

In no branch of the law, perhaps, has the hand of innovation wrought more radical, and at the same time, more beneficial changes, than in the law of Evidence. Only a few years ago the legal mind revolted at the idea of permitting a party in interest, or a party to the record, to testify. And yet by this rule of exclusion of parties, the only persons who knew anything about the facts involved in the controversy were frequently if not generally excluded, and the court and jury were left to conjecture upon the very vital question at issue. But since, both in England and most of the United States, the rule has been changed and everybody, with a few exceptions which might well be dispensed with, may testify, it is readily seen that the

1 See 8 Cent. L. J. 162, 222, 310. Vol. 10-No. 7.

Two methods of proving handwriting are approved as the general modes of proving the same where it is in issue. 1. By the testimony of one or more witnesses who saw the

of those who have become acquainted with the handwriting of the alleged writer or signer of the instrument in controversy, either by having seen him write, or by having corresponded with him, and thereby learned his handwriting by letters which have been acted upon by the writer so as to insure their genuineness.

These specifications entirely ignore, the whole range of knowledge obtained through the various modes of comparison. To these specifications the law as now evidenced by the current of authority in this country and in England, there are very limited exceptions. One is that where an instrument in writing is introduced as relevant evidence in the cause on trial by the adverse party, or where such a writing is in the case otherwise and is admitted to have been written or signed as the case may be by the person whose writing or signature is the subject of controversy, the specimen thus introduced may be used by experts in comparison with the writing or signature in controversy, and may be produced to the jury for their inspection.2 And so where the writing is so ancient that no person can be found sufficiently familiar with the handwriting to prove it, but where it is not sufficiently ancient to prove itself, here also resort may be had to comparison. Beyond these limits the English courts never seem to have gone, though many of their ablest judges and text writers have condemned the restriction. In this country the majority of the courts have substantially followed the English rule. For though Mr. Greenleaf states the

22 Greenleaf on Ev. Redfield's edition, § 577-81.

With this statement of the present condition of the law in England and America upon this subject and without any methodical statement of the reasons upon which the exclusion of proof of handwriting by comparison is based, and bearing in mind that the trial of an issue of fact is a search after truth, we propose to show: 1. That the proof of handwriting by comparison by juxtaposition, as it is called in some of the books, is the very best method known to the law, and more infallibly leads to the discovery of the truth than any other method. 2. That the objections urged against the use of this method are partly imaginary, and that those which have some foundation may be obviated with restrictions that are quite practicable.

The first approved method of proving hand writing, as we have seen, is by the testimony of some person who saw the person whose writing or signature is in controversy write or sign the instrument in question. But when it is considered that the variety and individuality of hand writing and signatures are as marked and well defined as are the persons who write, it is easy to see that this method of proof alone, without the corroboration of the other methods, is the very weakest proof of genuineness. And where the principal witness has any motive for perjury, and the instrument or signature in controversy by the testimony of witnesses competent to testify and obtaining knowledge by any of the modes of comparison hereafter discussed, is not that of the alleged makers or signers but that of the witnesses, such testimony will overcome an incredible amount of direct testimony of witnesses of the average character. Indeed the fact is that all that is requisite to obtain the necessary testimony of the former kind, where the alleged maker or signer is dead, is to obtain one witness or even more in conspiracy to commit perjury, while by the latter method in most cases such testimony is easily outweighed and destroyed when false, and the truth is easily vindicated, thus giving

3 Greenleaf on Ev. Redfield's edition, § 581, and notes.

it infinite advantage. We think this proposition will hardly be controverted, but here is not where the controversy arises, and therefore the superiority of proof by persons familiar with the handwriting, or by comparison by means of experts or otherwise over the direct testimony of witnesses who profess to have seen the paper written or signed may, for the purposes of this article and as a general rule, be conceded. There are doubtless very rare exceptions to this proposition, which it is quite unnecessary to

discuss here.

4

The other approved method of proof of handwriting, leaving out of view the subject of comparison already alluded to, is that by a person who has either seen the alleged maker or signer write, or has become familiar with his handwriting by correspondence which has been acted upon. How frequently must the witness see the alleged signer write? Once will render him competent. And how often must he receive and act upon letters and have responses to them to enable him to testify? Very seldom indeed.5 With this view what frail tests indeed are these modes of proof. Nothing is gained by seeing a man write save to learn his handwriting, and this is a very imperfect method compared to others. The mode by correspondence is little better if the witness be not permitted to refresh his memory by comparison. But both these methods of proof are but comparison; comparison by placing the image of the handwriting as formed by seeing the party write or corresponding with him alongside the controverted sig nature or writing of the same party. The proposition we set out to maintain is that this method of comparison by memory is far less certain than a collation and comparison of the disputed signature with another or any number of writings or signatures known or shown to be genuine, placing the papers side by side. This proposition would seem to be self evident, and excepting that the converse doctrine has received sanction in Westminster

Hall, in the Federal Supreme Court and a majority of the State courts, it would hardly seem appropriate to discuss it.

4 Doe d. Mudd v. Suckermore, 5 Ad. & Ell. 703; Greenleaf on Ev. § 577; 2 Stark. 652.

5 Id. supra.

The

Ves. 215, the proprietor of the "The Wonderful Magazine," succeeded in stopping the publication of the The Wonderful Magazine, New Series, Improved." In Edmonds v. Benbow, Seton, 3d ed., 905, the proprietor of "The Real John Bull," was held to be entitled to an injunction to restrain the publication of another paper as The Old Real John Bull. In In re Edinburgh Correspondent Newspaper, Ct. of Sess. Cas. 1, ser. I. new ed. 407 n, the same name was prevented from being used. In Constable v. Brewster, Ct. of Sess. Cas. 1 ser. III. 215, new ed. 152, it was decided that "The Edinburgh Philosophical Journal" was interfered with by the publication of a "New Series of the Edinburgh Philosophical Journal.” So in Chappell v. Sheard, 3 W. R. 646, 2 K. & J. 117, and Chappell v. Davidson, 2 K. & J. 123, where the plaintiff's song was entitled "Minnie," and those of the respective defendants "Minnie Dale" and "Minnie, Dear Minnie." So again, where the purchaser of The Britannia newspaper incorporated it with the John Bull, under the name of The John Bull and Britannia, and the former publisher of The Britannia began to publish The True Britannia. Prowett v. Mortimer, 4 W. R. 419, 2 Jur. N. S. 414. In Clement v. Maddick, 1 Giff. 98, the plaintiff's newspaper was called Bell's Life in London, and the defendants' The Penny Bell's Life and Sporting News. London Daily Journal was too near to The London Journal. Ingram v. Stiff, 5 Jur. N. S. 947. So The United States Police Gazette to The National Police Gazette, commonly known as The Police Gazette. Matsell v. Flanagan, 2 Abb. Pr. N. S. 459. So "The Bedfordshire Express and General Advertiser for the County," to "The Bedfordshire Express and General Advertiser for the Counties of Cambridge, Hertfordshire, Huntingdonshire, and Middlesex." Chance v. Sheppard, V. C. M. July 30, 1869. In Clowes v. Hogg, W. N. 1870, p. 268, 1871, p. 40, the former proprietor of London Society began to publish English Society, and was restrained. Again, in Mack v. Petter, 20 W. R. 964, L. R. 14 Eq. 431, the plaintiff's book was called "The Birthday Scripture Text Book,” and the defendant's "The Children's Birthday Text Book." In Corns v. Griffiths, W. N. 1873, p. 93, the plaintiff's paper was called The Iron Trade Circular (Rylands'), and the defendant's The Iron Trade Circular (Edited by Samuel Griffiths.) In Metzler v. Wood, 26 W. R. 577, Ļ. R. 8 Ch. D. 606, the plaintiff's book was called "Henry's Royal Modern Tutor for the Pianoforte," and the defendant's "Henry's New and Revised Edition of Jousse's Royal Standard Pianoforte Tutor;" and. lastly, in Weldon v. Dicks, the tale was in each case styled "Trial and Triumph.”

In all the above cases the infringement was restrained. In some the evidence of premeditated design to benefit by another's labors was stronger than in others, but irrespective of this the remedy was granted whenever it appeared that the deception of the public was reasonably to be expected. On the other hand, there have been a number of cases in which plaintiffs, who have considered their property to be injured by the conduct of rival

publishers, have failed to establish their case in a court of law.

In Spottiswood v. Clark, 2 Ph. 184, the question was between "The Pictorial Almanack" and "Old Moore's Pictorial Almanack; in Snowden v. Noah Hopk. 347, between The National Advocate and The New York National Advocate; in Bell V. Locke, 8 Paige, 75, between The Democratic Republican New Era, and The New Era; in Stephens v. DeCento, 30 N. Y. Sup. Ct., 343 between La Cronica and El Cronista. Punch was the property of the plaintiffs in Bradbury v. Beeton, 18 W. R. 33, and Punch and Judy of the defendant; in Tallcot v. Moore, 13 N. Y. Sup. Ct. 106, the plaintiff's book was "The Little Red Book, New Series, 1875," and the defendant's "The Red and White Book;" and The American Grocer Publishing Association v. Grocer Publishing Company, 51 How. Pr. 402, was a similar case. Ledger v. Ray, Ct. of App. May 3 1877, was a somewhat peculiar case, as the question was not confined to the two titles, The Era and Touchstone or The New Era, but Touchstone was also the name of a well-known writer in the plantiff's paper. And again in Kelley v. Byles, 46 L. T. N. S. 623, the plaintiff's compilation was called "The Post Office Directory of the West Riding of Yorkshire," and the defendant's The Post Office Bradford Directory."

In these last mentioned cases it was held that the plaintiff's complaint was not substantiated, and the remedy sought was refused. In some, indeed, evidence of improper motive was not altogether wanting, and in others more or less difficulty may have been experienced in coming to the conclusion that no deception was to be apprehended; but yet, the opinion of the court being adverse to the several plaintiffs, they failed to obtain relief, for where no injury is to be apprehended, no remedy is required.

In Isaacs v. Daly, 39 N. Y. Sup. Ct. 511, the motion for injunction was refuse d another ground-viz., that the title of the plaintiff's play, "Charity," was a word of such general application that its use by the defendant could not be restrained in the absence of fraud.

Barnard v. Pillow, W. N. 1868, p. 94, was a somewhat different case, as there it was not the actual title of the song which was in dispute, but the words "Song, written by Claribel," which appeared lower down on the title page, the fact being that the words had been written, but not the music composed, by that author, though in other instances the same author had also composed the music. The court, however, came to the conclusion that no deception was to be anticipated, as the words "written by" were different in signification from the words "written and composed by." And in this decision Lord Romilly was following the decision of Lord Hatherly in Chappell v. Sheard and Chappell v. Davidson, that "written by George Linley" was not likely to lead to the supposition that the music was composed by Linley, though he was better known as a composer than as a poet.

The object of the legal doctrines which it has been attempted to elucidate in these articles is not