when not

39. STATUTE OF LIMITATIONS-Note Barred by Foreign Statute.-A note made in California by a resident thereof, may be enforced against the maker in Washington territory, after he has become a resident thereof, if, at the time he left California, the note was not barred by the statute of limitations of that State, nor barred by the statute of limitations of Washington territory at the time suit was commenced. Adams v. Kelly, et al., S. C. Wy. T., Sept. 24, 1884; 5 W. C. Rep. 348.

CORRESPONDENCE.

"FIGHTING THE DEVIL WITH FIRE."

To the Editor of the Central Law Journal:

I quote from you: "The best members of the legal profession in Missouri have, since the State existed, trafficked in litigation; bought it and sold it as though it were merchandise, and they are still doing it. We ask our learned correspondent if it is not so in Alabama ?"

From a somewhat extensive acquaintance with the legal profession in Alabama, it affords me great pleasure to say that the character you give "to the best members of the legal profession in Missouri," is not the character of the best members of the legal profession in this State. Certainly I have not been so unfortunate in my business and social intercourse with the profession as to find such a character applicable to any considerable number. There are bad men here, generally recognized as bad, engaged in the practice of the law; so it is with every trade or occupation, but they have "their own place," and there they are left by the bar and the general public. Men of ability, because of their questionable practices, have lost place in the profession, and sometimes have been compelled to abandon the profession, and, by force of public opinion, driven from the State. Local bar associations and the State bar association have done something to give tone and elevation of sentiment to the profession. It is true the profession suffers from the distrust engendered by the questionable practices of wicked lawyers, but I deny, as a class, that lawyers are more depraved than other men. When it is true, here, that the best members of the bar are of the character you give the best members of the Missouri bar, I will favor a constitutional amendment excluding the entire profession from every place of public trust and honor. The administration of the law ought not to be committed to lying, unfaithful lawyers-to men who can not be true to the highest trust ever given to the keeping of man. Pardon me for replying to your comments, but I feel invited to do so. I sincerely trust that your severe criticisms will everywhere invoke investigation into the truth of the charges. WM. C. WARD.

Selma, Ala., March 30, 1885.

REMARKS.-We agree that the lawyers as a class are as good as other men; but as their calling is a profession, and not a trade, and, as it concerns the administration of justice, they ought to be better than other men. We believe that the lawyers of Missouri are, as a class, as good as those of Alabama, and we believe that many of them in good standing in both States have been, and are, in the habit of prosecuting actions of ejectment and damage suits upon agreements to receive an aliquot part of the land or money recovered as a compensation for their services. This makes them speculators in lawsuits, degrades them from the honorable position of counsellors and advocates into that of secret parties, and tempts them into practices which are incompatible with a faithful demeanor toward the courts. We may err in this conclusion as to Alabama, and we do not speak of the East, with which we are not much acquainted; but we have reason to believe that this practice is more or less prevalent throughout the entire West and South. We have not yet seen or heard of any attempt on the part of any bar association to rebuke or correct it.-[ED.

JETSAM AND FLOTSAM.

RIGHT OF THE PUBLIC TO BE ADMITTED TO THE COURTS OF JUSTICE.-On Saturday last the question raised by a correspondent in our columns last week, "Who is the presiding authority in Her Majesty's Courts of Justice?" was answered by Sir James Hannen. He said:-"I wish to say a word or two on a matter that has been pressed upon my attention. There is, of course, very great difficulty in making arrangements during the hearing of an important case 'like this for those who desire access to the court. never found any real difficulty during all the years I have sat on the bench in satisfactorily dealing with such matters until I came into these buildings. It is now the constant subject of complaint, and I will therefore state, for the information of the public, the directions I have given as to the admission of the public to this court. They are very simple. This is a public court, admission to which the public are entitled to, provided there is accommodation. I have stated over and over again that while there is sitting accommodation, barristers and others are entitled to admission as a right. A person of whom I know nothing applied to me as a student for permission to be in the court. informed him of the regulations I had laid down, and I am now told that he has been refused admission. To refuse him admission was an illegal act. I am informed that this person has misconducted himself. That must be the subject of inquiry elsewhere; but whoever refused him admission to this court while there was room, when he had my order, was guilty of an illegal act."-Solicitor's Journal.

EVEN HANDED JUSTICE.-Even-handed justice is administered in the Isle of Man. At a Petty Sessions Court held at Douglass on the 14th February, Deemster Gell, Her Majesty's second judge, the Speaker of the House of Keys, the governor's secretary, the high bailiff of Peel, and four members of the Manx bar, were fined 6d each, without costs, for being on licensed premises after 11 o'clock at night, on December 19. Deemster Gell, on that evening, entertained the governor and island officials and advocates, at the Castle Mona Hotel, to dinner, to celebrate his elevation to the bench, and the manager, who had neglected to obtain an "extension of time" license, had been fined 6d a fortnight previously.-Montreal Legal News.

GETTING AN EDUCATION.- These answers were given by children of both sexes of from thirteen to seventeen years of age: The earth goes round on its axis. The earth's axis is a pole put through the center of the sun, which turns it round, and thus we get the seasons. The Nile is the only remarkable river in the world, it was discovered by Dr. Livingstone, and it rises in Mungo Park.-Constantinople is on the Golden Horn, a strong fortress, has a university, and is the residence of Peter the Great.-Its chief building is the

Sublime Port.-Oliver Cromwell is said to have exclaimed, because he cut off King Charles's head and got on the throne: "If I had served my God as I served my King, He would not have left me to mine enemies." Also, that the word "Charles" would be found on his heart.-After the wars of 1815 there was a great famine in the land (England), for the country had been plundered and pillaged by foreigners, that the ground would not bear fruit because of its bloodshed, and it was said that "Christ and all His saints slept there."-[From English Educational Reports.

A PARK IN CHANCERY.-The Law Journal (London), says: "It is to be hoped that Prince Albert Victor before he has been long a member of an Inn of Court will be able to modify the rather gloomy view of the meaning of the words 'in Chancery' which he has gathered as an apt student of 'Bleak House.' Writing of a drive through the wilds of Australia, the royal midshipmen say: 'In many places we drive as through an open English park, only it is a park in Chancery, with the trees fallen and dead and the stumps protruding here and there, and pools uncared for, and the grass growing by their sides, dark and lank.' Chancery' in its opprobrious sense is, like 'drunk as a lord' and other phrases, a survival historically embedded in the language, useful perhaps as marking progress, but happily recording a fact some time past and gone." The pugilist's idea of being in chancery is even worse than that of the royal barrister.

'In

BAD TRIAL JUSTICES.-The Raleigh News and Observer recently had the following: "The lawyers of Philadelphia have organized for the purpose of securing the selection of reputable trial justices in criminal cases. This is a move in the right direction. The affliction of the body corporate is that enough interest is not displayed in obtaining respectable administrators of the law. The American judicial system is excellent; and when evils come it is because the better class of the community do not trouble themselves to keep the waters pure and undefiled. The lawyers of Philadelphia have stepped out boldly and wisely. In our own State there are two evils-first, the crowded condition of the dockets with its consequent delay of justice, and the failure of the juries to convict in murder cases."

THE ENGLISH JUDICIAL PENSION LIST. — The deaths of Lord O'Hagan and Sir Robert Phillimore leave the judicial pension list shorter than it has probably been for many years, the only ex-judges of England now living being, we believe, Earl Cairns, Lord Penzance, Lord Bramwell, Sir Henry Singer Keating, and Sir John Mellor, besides Sir Montague E. Smith, who now holds a non-judicial appointment. Since the passing of the Judicature Act, several judges have died whilst still on the bench, or, having resigned on account of ill-health, have died within two or three years afterwards. A few years ago there were a considerable number of ex-judges who, having served their term of fifteen years, had retired from the bench, and only occasionally appeared at the Privy Council-Sir William Erle, Sir Samuel Martin, Sir John Barnard Byles, and Sir Henry S. Keating; but of these the last-named is the sole survivor. There were also no less than three ex-Chancellors-Lord Chelmsford, Cairns, and Hatherley. It seems a pity that Irish ex-Chancellors are not permitted still to be of use on the bench, even though they are not, like Lord O'Hagan, members of the House of Lords. Why should they not become exofficio members of the Court of Appeal at Dublin?Law Times (London).

The Central Law Journa

ST. LOUIS, APRIL 17, 1885.

CURRENT EVENTS.

THE SIXTEENTH AMENDMENT.-We have received a weekly newspaper, from Buffalo, bearing the above title. It bears, displayed on a scroll, in its title the following legend: "Section 1. Neither distilled or fermented liquors shall be made, imported, transported, sold or used for drinking purposes within the United States or any place subject to their jurisdiction. "Section 2. Congress shall have power to enforce this article by appropriate legislation."

We suggest a constitutional amendment obliging the reformers who cannot write grammatical English to undergo a system of compulsory education. The above "amendment," with its ungrammatical "or" following its "neither," may embody a great moral idea, but, as an intellectual conception, it does not rise to a very great height of grandeur.

A POST-GRADUATE LAW SCHOOL.-A movement is talked of to make the law school of Columbia College what is called a post-gradute law school, which means that no one is to get its degree of Bachelor of Laws unless he has already taken some literary degree from some college or university. Unfortunates, who have not the happy experience of possessing a literary degree from an American college and of knowing how very little one can know and at the same time possess such a trophy, are not to be allowed Columbia's degree of Bachelor of Laws, but will only receive a "certificate" that they have taken the usual course of legal study at Columbia. There is more silly dudism in many American colleges than the outside world has any idea of; but there is not enough of it in Columbia to make this foolish experiment. If Columbia wants to enhance the value of its degree of Bachelor of Laws, let her begin by increasing her course of legal study from two years, which it now is, to three years, which it is in the Yale Law School, the Boston UniVol. 20-No. 16.

versity Law School, and the Harvard Law School. This might diminish the so-called prosperity of the Columbia School, that is, it might diminish the amount of money that some one can make by running the school, but it would be a gain to the legal profession. Columbia has this year 220 graduates in her law department; Yale has about 75. It is plain that a student who really desires to acquire a good course of training in the law, will find the Yale school preferable to the Columbia school, because he will find that the corps of instructors will, other things being equal, find more time to devote to each student where there are but 75 than where there are 220. We are glad to know that the New York Court of Appeals, not long ago, amended its rules so as to compel graduates of the law schools to submit to the same examinations, for admittance to the bar, which are required of those who have studied in offices.

EVERY MAN HIS Own LAWYER.-The English courts seem at present to be suffering from the nuisance of clients appearing to conduct their cases in proper person. Of course this right is accorded to every man by the principles of the English Common Law. It is sometimes, though rarely, resorted to in America. We remember reading a case in the reports of the Supreme Court of Tennessee, where one of the parties to the suit was a doctor. The report recites that Dr. argued his cause in proper person. He lost it, though he would, without doubt, have won it if it had been a good cause in law. We understand that it often happens in the Assizes in England that prisoners are tried without the aid of counsel to defend them. On the trial of several prisoners for piracy before Lord Abinger in 1844, they being without counsel, one of the jurymen inquired of the judge why in such a serious case the prisoners were undefended, at the same time offering to bear the expense, if any learned. gentleman in court would undertake the case. Lord Abinger answered that if the prisoners had applied for counsel before the trial commenced, counsel would have been assigned them; but he did not think any gentleman

Lord Cole

of the bar could now accept the offer of the juryman as it was impossible for one retained in the middle of a case to do justice to it. Queen v. McGregor, 1 Cox. 346. The prisoners were convicted. This instance illustrates the spirit of fair play which is so distinguishing a characteristic of Englishmen. ridge, in several trials over which he has presided, appears to have been vexed and badgered by litigants of a notorious character, appearing to conduct their causes in person. The case of the notorious Mrs. Weldon,1 is an instance of this. The attempt of an ignorant and conceited litigant to conduct his own cause, has the effect of turning a court of justice into a circus. The practice seems lately to have invaded the English Chancery Division, and accordingly we are pained to learn from the Solicitor's Journal, that when Mr. Justice Field commenced his sittings as an additional judge of the Chancery Division, he had the misfortune, in the very first case, to have before him a plaintiff in person. The growing frequency of the appearing of litigants in propria persona, seems to emphasize a fact of which there are many other evidences, viz: The decline of the legal profession in public opinion. Nevertheless it remains as true to-day as it ever was, that the man who pleads his own cause has a fool for a client.

NOTES OF RECENT DECISIONS.

PROVING CONTENTS OF LOST WILL-SUFFICIENCY OF THE EVIDENCE.-In a case before the Supreme Judicial Court of Massachusetts, it was said by Wilde, J.: "To authorize the probate of a lost will by parol proof of its contents depending on the recollection of witnesses, the evidence must be strong, positive and free from all doubt. Courts are bound to consider such evidence with great caution, and they cannot act upon probabilities." 2 "This strictness' say the Supreme Court of Connecticut, "is requisite, in order that courts may be sure that they are giving effect to the will of the deceased and not making a will for him." Quoting this language

118 Am. Law Rev. p. 1042.

2 Davis v. Sigourney, 8 Met. 486.

Matter of Johnson's Will, 40 Conn. 589.

as embodying the correct rule upon the subject, the Supreme Court of California find that testimony, of which the following is a fair sample, is insufficient to establish the contents of a will alleged to have been fraudulently destroyed:

"The first witness examined as to the contents of the alleged destroyed will was J. E. Brown, who testified as follows: "The first thing was that she wanted Jessie Kidder to have one thousand five hundred dollars. I wrote it down; the next she wanted to give one of her sons five dollars. I don't recollect his name. that bequest.

It was not Ira. I wrote down She wanted one of her daughters, living in Oregon or Sacramento, I forget which, to have one thousand dollars. I wrote that. One more daughter she wanted to give five hundred dollars; where she lived I don't recollect. I wrote that.' The next witness testifying to the contents of the will was Mrs. S. J. Towle, who testified to a bequest therein of five hundred dollars to a son living in Oregon. The witness on being requested a second time to state the contents of the will, ommitted this bequest. 'My impression is that the one in Oregon (the daughter in Oregon) was to have the one thousand dollars, but I would not be positive now; that has been my impression at least ever since the last trial.' Further on in her testimony this witness speaks for the first time of a reservation in the will of five hundred dollars for funeral expenses.

*

4

MUNICIPAL CORPORATIONS LIABILITY OF FOR DAMAGES TO PRIVATE PROPERTY CAUSED BY PUBLIC WORKS.-The Supreme Court of California has lately re-affirmed the doctrine of the common law that a municipal corporation is not answerable in damages to an owner of private property for an injury to such property which may take place through the construction without negligence of some public work authorized by law. At the same time the court held that a constitutional provision that "private property shall not be taken or damaged for public use without just compensation having been first made or paid

4 Estate of Kidder, 5 W. C. Rep. 755.

5 Reardon v. San Francisco, 5 W. C. Rep. 758.

into court for the owner,' operates to give the owner a right of action for such damages; and this, although during the progress of the work he made no effort to protect his property from the injury which happened to it. The decision is important from the fact that in Missouri and in recent constitutions in several of the States, the same constitutional provision is found. The provision, as it formerly stood in many of the State constitutions, ran merely to the effect that private property shall not be taken for public use without just compensation. The importance of the California decision lies in the broad meaning which it gives to the additional words "or damages." A narrow construction of these words would make them mean something like this: That the land owner might proceed in some statutory mode to have his damages assessed upon the happening of such an injury, provided the legislature should supplement the constitutional provision by a statute allowing such an assessment. This decision, it will be perceived, makes the constitutional provision self-enforcing, as indeed every similar constitutional provision must, on the plainest grounds, be held to be; for these provisions are found in all our American constitutions in the chapter known as the Bill of Rights; and it is a well settled rule of constitutional interpretation that the Bill of Rights operates to except certain things out of the ordinary powers of government. Where the Bill of Rights makes such an exception, no legislative act or municipal ordinance can make the doing of anything lawful which is thus excepted.

This

The California decision is to be noted also for its implicit assent to the common law rule under which a property-owner cannot recover damages to his proporty which happen through the constructing without negligence of a public work authorized by law. doctrine is of a piece with several other fundamentally cruel and unjust maxims of the common law, such as the maxim that the king can do no wrong, that no statute of limitations runs against the king, that laches cannot be imputed to the king, and that no action lies against the king. In other words the king, in his sovereign character representing and being the State, can destroy the individual without the latter having any redress

7

whatever. Another branch of the same doctrine is found in the idea of the omnipotence of Parliament. A law enacted by Parliament, however cruel, unjust or destructive of individual rights, cannot be questioned. Therefore, if Parliament passed an act which authorized the constructing of a public work, the doing of which necessarily destroyed or damaged the property of an individual, such individual could have no redress, unless the Act of Parliament had graciously pointed out some mode of assessing his damages. His only comfort consisted in singing "Rule Britannia," and "God save the King," while he expatiated upon Magna Charta and the liberty of the subject. The remarkable thing connected with this infamous doctrine is that it was not found in the ancient common law. In fact, it is less than a hundred years old. It was first formulated by the narrow and unbending technicality of Lord Kenyon, in the case of the British Cast Plate Manufacturing Co. v. Meredith, and was followed in Sutton v. Clarke, and in Boulton v. Crowther; 8 and, although these decisions were rendered subsequently to the American Revolution, and hence were in no sense binding upon the American courts as authority, and although they were entirely opposed to the principles of freedom and justice upon which our American governments were founded, many American courts immediately began to re-iterate, with parrot-like servility, the infamous doctrine there laid down, and they have kept it up to this day, beginning with such cases as Green v. Reading, and Callender v. Marsh,10 and ending with a decision which casts discredit upon the National court of last resort. The history of American decisions upon this subject shows how little is to be expected in behalf of justice from the judicial tribunals, and how prone those tribunals are to follow with unthinking blindness and with an insensibility to justice, those narrow and unbending rules which have been formulated by the so-called sages of the law at former periods and under different circumstances.