22. SHERIFF'S SALE-Right of Judgment Debtor to Know the Hour.-Where a judgment debtor whose property has been levied upon, and who is trying to perfect his appeal, applies at the sheriff's office to know the hour at which the sale will take place, and is told "12 o'clock," when in fact the property is sold at an unusual hour, 10 o'clock, and realizes only a small portion of its value, such sale, upon proper application, should be set aside. American Wine Company v. Scholer, S.. C. Mo., May 5, 1885.

CORRESPONDENCE.

THE ATTACK ON MR. JUSTICE COOLEY. To the Editor of the Central Law Journal:

I have just read the communication in the CENTRAL LAW JOURNAL, of the 8th instant, written by Adelbert Hamilton, of Chicago, assailing the character of Mr. Justice Cooley. I am astonished that a lawyer who evidently knows so little of the facts of the case should undertake to asperse the character of a jurist eminent in two worlds for his learning and probity. If Mr. Hamilton has seen in the political journals of the day the charge that Mr. Justice Cooley had, while on the bench, become "a permanent arbitrator of the Trunk Line Pool," it would have been wise and proper to have inquired into the truth of the charge, before communicating it to a law journal, accompanied with the statement of his opinion. Any well-informed lawyer in this State could have explained to Mr. Hamilton in a few words the falsity of the charges he has made, as well as the animus which gave those charges birth. The facts of the case may be stated in few words. In 1882 great dissatisfaction existed over the "differential rates" established by the 'great trunk line railways, and it was thought that some of the eastern cities were discriminated against in respect to rates. The companies thought that the most satisfactory way to settle the question was to submit the whole matter to a commission, selecting for its members three gentlemen in whom the country had the greatest confidence as to their freedom from all railroad influence. Mr. Justice Cooley, in his decision in "the Salem case," holding that municipal corporations could not aid in the construction of railroads by subscriptions to stock or the issue of bonds, had dealt the companies a more severe blow between the eyes than they had received either before or since that time. He was selected as one arbitrator. Senator Thurman had made such a record in the Senate of the United States in his fight against the corporations, and as the author of "the Thurman Act," compelling the Pacific roads to meet their obligations, that he was selected as another arbitrator. Hon. Elihu B. Washburne had made an equally good record, and he was selected as a third arbitrator. These gentlemen were expressly selected because they were well understood to be as free from all railroad influence as any three men in the United States. They went to New York, Philadelphia, Baltimore, St. Louis, and several other cities, to hear what those cities had to say as to the discrimination in charges made by the companies in favor of one city as against another. The question was in fact a dispute between rival cities, as to whether one city was not being favored in rates to the prejudice of the other cities. It was not a question which could in any way come before the courts, and no one thought at the time that Mr. Justice Cooley was committing any impropriety in acting as an adviser between these cities. And no man now, with a

knowledge of all the facts, will condemn him therefor. In 1884 Mr. Justice Cooley made up his mind to retire from the bench, and announced his determination to do so to some of his friends. The papers got wind of it in some way, and announced the name of the gentleman who was to be appointed in his place. He was to retire in October, 1884. After reaching that conclusion, and just before the proposed retirement, he agreed to act as arbitrator in two certain matters arising between rival railroad companies, the agrcement being made at the time when he had no expectation of again resuming his seat on the bench. He was, however, afterwards persuaded by his friends to change his determination and remain on the bench. He felt himself bound to arbitrate in the two instances named, and did so. They were matters which could not come before him as judge, and which did not place, him under the slightest obligation to either of the companies. The charge that he became "a permanent arbitrator of the Trunk Line Pool" is without any foundation whatever, further than that he was offered that position at a much higher salary than he was receiving at the bench, and declined to accept it.

So careful has Justice Cooley been to hold himself free from all obligation to railroads, that he has never accepted a pass from any railroad corporation in the country, having uniformly declined the same when tendered.

No fair man at all familiar with the writings of Judge Cooley on railroad questions would have been betrayed into the charges I have felt compelled to notice. And the learned editor of the journal can find in the Eighth Annual Report of the Railroad Commissioners of Missouri to the Governor of their State, that they embodied in their report an entire article of Judge Cooley's on Railroad Commissioners, which certainly must have been been because they thought it in the interests of the general public. (Report for 1882, p. 29.)

The reputation of Judge Cooley can safely be left to the judgment of the best and purest men in the profession in the state of Michigan. Will you permit me in conclusion to quote the words of that great lawyer, Rufus Choate, in replying to a caluminous charge against a Massachusetts judge: "I have known and loved many, many men; many women-of the living and the dead-of the purest and noblest of earth or skies-but I never knew one--I never heard of oneif conspicuous enough to attract a considerable observation, whom the breath of calumny, or of sarcasm, always wholly spared. 'Be thou as chaste as ice, as pure as snow, thou shalt not escape calumny.'" HENRY WADE ROGERS.

Ann Arbor, May 11, 1885.

ANOTHER LETTER.

To the Editor of the Central Law Journal:

The statement in this paper, two weeks since, that Mr. Justice Cooley was permanent arbitrator of the Trunk Line Pool, while judge, is untrue. What his maligner's inferences are worth, in respect to his defeat, it is not worth while to consider. The causes of that calamity are well understood in Michigan; but the slander now published in the JOURNAL was barely suggested during the campaign in any form, and was used, where used at all, for its effect on those who knew no better than to believe it.

Since Judge Cooley acted as one of the commission on differential rates in 1882 he has acted twice as arbitrator in isolated cases, undertaking these tasks at a time when he expected soon to resign. His determination to leave the bench was overcome by the urgent appeal of those who felt that it would seriously weaken

the court, and he then closed the arbitrations in hand and refused other requests to arbitrate. When renominated he had no railroad questions before him, and he never had anything to do with the Trunk Line Pool. Indeed, he had refused to become permanent arbitrator at a high salary.

There were many causes for his defeat, but no reasons. Among the most conspicuous were the irritation of many Republicans against the Prohibitionists, who had also nominated him, and against the Judge himself, for not supporting Blaine. Another strong one was an unscrupulous and persistent attack upon him by the Evening News of Detroit. The motive of this attack was the affirmance by the Supreme Court of a twenty thousand dollar judgment against that paper for a beastly libel. In two years from now it will again strike at the court for the purpose of defeating Judge Campbell, whose long career and great distinction have given reputation to the State.

The attack made by the News was on the ground that, under Judge Cooley's lead, the court had become a corporation court-and, in proof, it instanced several decisions by various members of the court in negligence and other cases. This was the whole scope of the most malignant attack made upon him in Michigan. It remained for an outsider to state distinctly an accusation against him which his bitterest enemies used but vaguely during the campaign, because there was nothing to it.

REMARKS.-We print the above letters with great satisfaction. We printed Mr. Hamilton's letter, as we then stated, with surprise and grief; but we knew that the head-quarters of the so-called "Trunk Line Pool" were at Chicago, which was the residence of Mr. Hamilton, and we inferred that if Mr. Justice Cooley had become the permanent arbitrator of that "pool," it was necessarily a matter of public notoriety about which Mr. Hamilton could not well be mistaken. The explanation of Prof. Rogers, above given, entirely clears the matter up; but it leaves it in such a light that the judicious friends of Mr. Justice Cooley will still grieve that he had accepted the employments above described, and will attribute his recent defeat, in part at least, to the public impression which it may have produced. Those employments, we must presume were highly honorable employments for a private citizen. But the difficulty which lies in the way of a judge accepting such an employment is, that it is tendered by corporations which are liable to be litigants in his court; and, although no actual impropriety may be involved in it, yet the public are liable to misunderstand it, and it is the duty of a judge to so to conduct himself as to seem pure as well as to be pure. That public confidence in the administration of justice which is necessary to the repose of society demands nothing less. The employments accepted by him in 1884, after announcing his intention to retire from the bench, must necessarily have subjected him to unfavorable, though injudicious, criticism; for he was yet a judge in the pay of the State of Michigan. But while we say this, it is entirely clear that he has not been guilty of any actual wrong. He is to be judged by his life, and not by a single mistake. All men make mistakes, and, strange as it may seem, old men are as apt to make them as young men. In his judicial decisions Mr. Justice Cooley has never, we are persuaded, deviated a hair's breadth from the path of duty. In his public utterances he has always been against political usurpation and corruption. In his writings upon the questions of the hour, he has

always been on the side of the popular right and against the corruptions and oppressions of incorporated wealth and power. But his defeat in this election, though doubtless other causes contributed to it, should admonish judges that the private employments which a man can safely engage in while occupying a seat on the judicial bench are few. He may write works on the law, as Mr. Justice Cooley and others have done. He may be an editor of a legal publication as Mr. Justice Cooley is of the American Law Register. He may be a lecturer or professor in a law school, as Mr. Justice Cooley is in the law school of the (University of Michigan. He may do any or all of these things, if he can find time to do them without slighting his public duties. Nor is it expected that he will wholly neglect his merely private affairs, whatever they may be. But beyond this he cannot safely go. Especially he cannot, in view of the present sensitiveness of public opinion, accept employments of any kind, even as an arbitrator, from great corporations which may be litigants in the court of which he is a judge.-ED.

RECENT PUBLICATIONS.

MYER'S FEDERAL DECISIONS.-Cases Argued and Determined in the Supreme, Circuit and District Courts of the United States. Arranged by William G. Myer. Vol. VII. Constitution and Laws-Contractor. St. Louis, The Gilbert Book Company, 1885.

The seventh volume of this important work is, for the most part, devoted to the title "Constitution and Laws," which is continued from volume VI. It takes up the subject at subdivision IX, "Miscellaneous Matters under the Recent Amendments," and follows with subdivisions as follows: X. Impairing the Obligation of Contracts. XI. The Judiciary. XII. State Constitutions. XIII. Statutes and State Laws. XIV. Common Law. XV. Foreign Laws. XVI. Ordinance of 1787. XVII. Law of Nations. The remaining portion of the volume is devoted to the title, "Consuls and Ministers." The title "Constitution and Laws" presents a complete grouping of the subject by articles, sections and smaller subdivisions, as in digest; and by reference to the table of contents, the searcher can at once turn to the page where any particular subject upon which he wishes to consult the decisions is found. Suppose, for instance, he wishes to get a grouping of all the federal decisions on the subject of Exemptions from Taxation, those of the Supreme Court of the United States being given in full; the table of contents indicates to him that he will find them on page 462 and the succeeding one hundred pages. The matter which is grouped in this small compass is, in its original form, scattered through many volumes. With this volume before him, the practitioner making a brief, or the judge writing an opinion, may find every decision which he desires to examine, without looking at a digest or taking down another volume. It is thus seen that the work is of the very greatest convenience to the profession. We regard it as one of the most important works which has recently been undertaken by any publishing house.

ST. LOUIS, MAY 29, 1885.

JAMES O. BROADHEAD, FIRST PRESIDENT OF THE AMERICAN BAR ASSOCIATION. We offer no apology to our readers for presenting to them this week an excellent likeness of the first president of the American Bar Association; a body whose exertions, though necessarily proceeding slowly, are destined to have a marked influence in elevating and strengthening the great and powerful profession of the law, which already numbers within its ranks, in the United States, seventy thousand men, and in unifying and simplifying the laws of our country. That body was organized at Saratoga, New York, in the summer of 1878, by a number of distinguished lawyers, among them William M. Evarts, Benjamin H. Bristow and Philemon Bliss. James O. Broadhead, of Missouri, received the honor of being chosen its first president. The Attorney-General of the United States is the honorary head of the American Bar, but, as this officer is often chosen for political reasons rather than out of deference to superior legal attainments, we doubt whether the presidency of the American Bar Association ought not to be regarded as the higher honor, and whether the incumbent of this office, for the Vol. 20-No. 22.

leader of the American Bar. During the seven years of its existence it has not once failed to be- stow this annual honor upon some lawyer dis tinguished in the profession for learning, ability and integrity.

James Overton Broadhead was born in Albemarle county, Virginia, on May 29, 1819. His father, Achilles Broadhead, was a substantial farmer, had been a captain in the war of 1812, and had been for many years held the office of county surveyor. He has two brothers living, Garland C., the well known geologist, and William F., a well known lawyer of Missouri. At the age of 16 he entered the University of Virginia, supporting himself wholly by his own efforts. At the close of this year he engaged as teacher of a private school near Baltimore. In 1837 he went to St. Charles county, Missouri, where his father had previously moved.

From 1838 to 1841, he was employed as tutor in family of Hon. Edward Bates, then of St. Charles County and while teaching there, he also studied law under the instruction of Mr. Bates. In 1842, he was licensed to practice law by Judge Ezra Hunt, of Bowling Green, Pike County, Missouri; and, selecting that place as his home, he commenced the practice of his profession, practicing in the circuit which embraced the counties of St. Charles, Lincoln, Pike, Ralls, Montgomery and Warren. In 1845 he was elected a delegate to the State constitutional convention from the Second Senatorial District. In 1847 he was elected to the Legislature as a whig. From 1851 to 1855 was State Senator. While living in Pike County, he was married at the age of twenty-six. In 1859 he moved to St. Louis, and soon after formed a partnership in the practice of the law with Fidelio C. Sharp, under the firm name of Sharp & Broadhead, which partnership continued until the death of Mr. Sharp in 1875.

He took an active part in saving Missouri to the Union. At the suggestion of Hon. Francis P. Blair, he was made a member of the "Committee of Safety," which was organized on February 1, 1861, for the purpose of resisting any overt acts of the Secessionists. This committee was composed of O.D.Filley, Samuel T. Glover, John How, J. J. Witzig and James O. Broadhead. He was member of the Missouri State Convention of 1861,

and chairman of the committee whose report was adopted, declaring vacant the offices of Governor, Lieutenant-Governor, Secretary of State, and Treasurer. During the same year, he was appointed United States District Attorney for the Eastern District of Missouri, and resigned a few months later to become Provost Marshal General with the rank of colonel for the Department embracing Missouri, Arkansas, Kansas, the Indian Territory, and Southern Iowa. He was a member of the Constitutional Convention of 1875, which framed the present Constitution of Missouri, which created the St. Louis Court of Appeals, and gave to the City of St. Louis a charter framed by its own citizens, amendable only by them, and free from legislative tinkering. He was also a member of the Board of Thirteen Freeholders which drew this admirable charter. The next year he was retained by the government as special counsel in the trials of the whisky ring conspirators. He was put in nomination for the presidency before the Democratic Convention which nominated Mr. Tilden, and was voted for on a number of ballots, receiving a majority of the votes of the Missouri delegation. In 1878 he received what we insist was the crowning honor of his life, by being chosen President of the American Bar Association. In 1882 he was elected to the 48th Congress on the Democratic ticket, and was a member of the Judiciary Committee. He has lately been appointed Commissioner for the United States in the matter of the French Spoliation Claims.

Col. Broadhead is still engaged in the active practice of his profession. In 1878 he was a member of the firm of Broadhead, Slayback & Haeussler, composed of himself, the late Alonzo W. Slayback, Herman A. Haeusler & Charles S. Broadhead, son of Col. Broadhead. This firm was dissolved in the fall of 1882, by the lamentable death of Col. Slayback, since which time the firm has been Broadhead & Haeussler, composed of the

survivors.

Col. Broadhead has at all times taken an active part in matters affecting the public good in the community in which he has lived. Though generally identified with some political party, he has in all public matters been able to rise above mere party prejudice and

party dictation. He has given the right hand of fellowship to many a young man while endeavoring by honorable dealing and hard work to get a foothold in life; at the same time extending no favors to those who have endeavored to get into positlon on the strength of ancestral reputation, or by waiting for some turn of luck or good fortune.

CURRENT EVENTS.

NEWSPAPER ARTISTS.-A St. Louis newspaper sent an "artist" so-called, to Austin, Texas, to illustrate the legislature. The first batch of illustrations appeared, and in due time the paper containing them arrived in Austin. Now the artist is in the hospital with several knife wounds in his body, and one of the members of the legislature is in jail. These are the places where journalistic "enterprise" always brings up when it is tried on a Southern man.-Chicago Herald. The St. Louis concern should have employed some one able, like the Gazette's legislative artist, to grasp high art and make the old masters ashamed of themselves. -Arkansas Gazette.

The Gazette's legislative portraits are all of them excellent; but they have the fault of monotony, they all look alike. The pictures furnished by the CENTRAL LAW JOURNAL'S artist are the only one's which are really trustworthy, albeit the printer may now and then get a little too much ink on them, so as to make them look like the Ameer of Afghanistan, like El Mahdi, or like a Central American revolutionist. Moreover our biographies are none of your patent ready-made affairs, gotten up in New York, and distributed to the country press. They are "official;" and like the official reports of battles (we do not refer to Shiloh or to the Pendjeh affair) may be held to "import absolute verity."

welcomed

We hope We hope revise the

with such Federal decisions as bear upon Texas jurisprudence. It presents a first class appearance. We like the head-notes of the cases, and shall take the liberty of using them occasionally in our digest of recent decisions. Texas ought to support one good publication of this kind, but she cannot support 'more than one. Competition will stimulate improvement, and in this regard, as well as in regard to what is due to its obvious merits, this publication will, we think, be by the bench and bar of that State. the learned editor will find time to citations of cases in the body of opinions. We are afraid he has not attempted this in the present number. We see 39 Cal. cited on page 3, as 39th Cal. We see Heiskell cited Hirskell on page 7 and 9 Vesey is cited as "9 Vesey Rep." The word "Rep." is unnecessary, and Vesey is never mistaken when it is abbreviated, as it usually is, "Ves." Texas is sometimes printed in full, and sometimes abbreviated into "Tex." The proper punctuation is not always used in the citations.

In most of the cases the name of the judge writing the opinion is placed at the commencement thereof; but in some cases, toward the end, the word "OPINION" is placed at the head, and the name of the judge at the foot of the opinion. We see that they have in Texas the abominable expedient of a commission of appeal, whose opinions are "adopted" by the Supreme Court. Such makeshifts, dictated by legislative parsimony, cannot fail to be permanently prejudicial to the jurisprudence of any State.

ERRATA. In the opinion of the Supreme Court of Kansas in the case of Kansas City, etc. R. Co. v. Riley, published in a former number of this journal,' there occurs in the first line of the last paragraph in the first column, the following statement: "The rule of the common law seems to be in force in Pennsylvania, Iowa, Illinois, California, Louisiana, and is referred to with approval in Ohio." Our types should have said, "The rule of the civil law," etc. Every man in the course of his life must eat his peck of dirt, and every printing office must make its quota of mis

120 C. L. J., 373.

takes. They are incident to all kinds of work; but in this instance we find that the mistake was in the copy sent to us. We wish we could say as much of the paragraph in another issue of this journal, entitled "The Tail Wagging the Dog." That entire paragraph, except the introductory sentence, should have been credited to our learned and refined contemporary, the Albany Law Journal; but the ingenuity of some one transferred the quotation marks from the end of the paragraph to the end of the first sentence, thus leaving us to answer personally for the rather strong comparison which was drawn between the majority and minority opinion of the Supreme Court of the United States in the Virginia Coupon Cases. We live in the Wild West, in the land of Dr. Carver and Buffalo Bill. Missouri is a buffalo range, and St. Louis is a rebel colony. We wear our pants inside our boots, carry a six shooter in each boot leg, and also one on each side at the belt. We pick our teeth after each meal with an Arkansaw toothpick, and furnish the said tooth pick with a resting place between meals adown our spinal column just inside our shirt collar. We also have a lingering affection for State rights, and do not agree with the conclusion of the majority of the Supreme Court that a jurisdiction exists in the Federal Courts to compel the States of the Union to perform their contracts. But we have not reached that rip-roaring, rollicking disregard of consequences-that obliviousness to the dulce et decorum of legal journalism, which will enable us to apply such a striking metaphor to the two opposing opinions emenating from that august body. If we were to do so, the boys of the Columbia Jurist would take us to task, and would tell us to have a little "sweet reasonableness." The learned editor of the Montreal Legal News, whose name trembles under the weight of the two additions of LL.D. and D. C. L., having finished the half hour's task performed each week of editing his little sheet and reading the proof thereof, would empale us on his caustic pen. He evidently has much time to sit on the fence and watch his neighbors. His great mind discovered in one of our monthly indexes, found on our outside cover, the word volenti by an error of proof-reading spelled

20 C. L. J., 400.