ANSWER.-They would probably say that it was another case of a man trying to have himself for his lawyer, and having a very unwise man for his client. Mr. Todd may have proved himself to be not more wise than the late Samuel T. Glover; and Mr. Glover was not more wise than Lord Westbury; and Lord Westbury was not more wise than Lord St. Leonards. The first and last of these lawyers were conveyancers, but none of the last three was able to make his own will. But one ought not to say this hastily of Mr. Todd. The paper above quoted may be perfectly valid as a testamentary deposition; but it was probably intended by the noble old lawyer who wrote it, as a mere personal request to his surviving relations, and without doubt they will sacredly obey it as such.-[ED. C. L. J. QUERIES AND ANSWERS. [Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.] QUERIES. 27. An administrator, believing his decedent's estate to be solvent, and, at the request of a claimant for an account against the estate, pays the claim in full. The estate turns out to be insolvent. Can the administrator recover back from such claimant the amount thus paid, over what per cent. the estate paid, under a mistake of fact as to the solvency of the estate, or must the administrator loose the amount thus paid? If he cannot recover, can such administrator recover on a written agreement to pay back in case of insolvency? Where can authorities be found on the questions? M. 28. A citizen dies intestate, leaving real estate in 1868. In 1874 the State Legislature passes an act as follows: * * "Real property may be taken, acquired, held, etc., by an alien in the same manner in all respects as by a natural born citizen." Can this State in 1878 escheat this property against the claims of an alien claimant who is next of kin? In what lies, if any, the difference between naturalization, which is not retroactive, and the removal of alien disability by an act of Legislature? SUBSCRIBER. 29. If a man, tried, convicted and condemned to suffer the death penalty by hanging, is by the sheriff (the legally constituted officer to perform the sentence of the court) duly and legally hanged at the time specified by the court, is pronounced dead by competent physicians appointed by the proper authority for that purpose,is then cut down by the sheriff and delivered to his friends for interment, and the warrant is properly returned to court by the sheriff, and is afterwards resuscitated, can he be again hanged under the same conviction, or is he a free man, having paid the penalty of the law? Answer, giving authorities. T. W. A. Houston, Tex. [You will have to put this query to an older hangman than we are.-ED. C. L. J.] RECENT PUBLICATIONS. POMEROY'S ESTEE'S PLEADINGS. Pleadings, Practice and Forms, adapted to Actions and Special Proceedings under Codes of Civil Procedure. By Morris M. Estee, Counsellor at Law. Third Edition. Revised, Enlarged and Re-written. By Carter P. Pomeroy, Counsellor at Law. In three volumes. San Francisco: A. L. Bancroft & Co. 1885. We are glad to believe from an examinatien of this work that the revision has been quite thorough, that a number of valuable forms have been added, applicable in all the States and Territories which practice under a code, and that the citations have all been verified by reference to the original books, so as to correct clerical and other errors. If there is anything that tries the patience of an overworked practitioner, it is to find a case cited in support of an important proposition in a law book, and to take down the volume of reports from which it is cited, and to find that no such case is there. It is scarcely necessary to speak of the merits of this work. It took a position in the front rank of practical law books from the time when it first appeared in 1869. Its merit consists in the fact that it does more than discuss general principles. It enters into details and dwells largely upon the application of principles. A legal principle is like an edged tool: every one understands that it is used to cut with, but it requires experience and training to know how to cut with it without cutting one's self. If the most learned of law professors-and we refer only to those whose lives have been given up exclusively to teaching-were placed upon a bench of Nisi Prius, his rulings would be characterized by frequent misapplications of legal principles of so glaring a nature that a lawyer, far less learned, who had grown up in the practical work of the law, would have readily avoided them. This illustrates what we mean to say: The law book is very deficient which expounds principles only. The difficulty lies in the application. Every rule is hedged about with limitations and exceptions. It is just as necessary for the practitioner to understand these limitations and exceptions as to understand the rule itself. For instance, it is stated in this work that the rules of code pleading do not tolerate the stating of conclusions of law. That is a general rule of pleading, yet how vital are the exceptions to it! Take the form of our action of ejectment in Missouri. All that it is necessary to state is that the plaintiff was, on a day named, entitled to possession of certain described premises, and that the defendant, on a subsequent day named, entered upon such premises and unlawfully holds from plaintiff the possession thereof. It is perceived that the most essential allegation of this petition is a conclusion of law, namely, that the plaintiff, on the day named, was entitled to the possession of the premises described. The whole struggle of the plaintiff at the trial will consist in presenting such evidence as will make it appear, as a conclusion of law, that he was so entitled. Now the value of this work consists in the fact that it not only expounds the principles of pleading, but that it also tells the practitioner what he can do and what he cannot do in the application of those principles. JETSAM AND FLOTSAM. MISSOURI JUSTICE.-The following anecdote, exscinded from a longer story lately published in a leading legal periodical,having been republished and enjoyed in England, may perhaps be reprinted here without exciting local ill-feeling, with the additional statement that we know the author of it to be a gentleman of the utmost candor. We assure our distant readers that it is not a fair sample of Missouri justice: A writer in the American Law Review gives an account of the pro ceedings in the Circuit Court of Missouri within the last two years. The writer appeared as advocate, and, "after a good deal of idle and desultory talk, lasting at least an hour, the trial was resumed. I soon had occasion to make objection to a question propounded by the opposing counsel, when, to my surprise, the judge, instead of passing on my objection, remarked: 'Now, if you lawyers think I'm going to hear any argument on objections, you'll find yourselves very much fooled. I won't do it.' He then graciously announced that we could make all the objections we wanted and put them in our bill of exceptions, thereby intimating that he would not even pass on objections; and on that intimation he acted all the way through. Finally the case was submitted just before the dinner hour. After recess, his Honor resumed his place on the bench, and after hearing some minor motions, he descended and approached me with the remark: 'If you want to smoke here you can do so. It's not very dignified to smoke on the bench, but I'm going to smoke a cigar.' Which cigar he proceeded to light, as I did mine, although there were a number of placards on the walls of the court-room-'No smoking allowed in this room while the court is in session.' His Honor then proceeded to pass a sentence on two colored men who had been convicted at that term. After this, his legs stretched across the bench and his cigar glowing brightly, his Honor proceeded to deliver judgment in my case in the following words: "The decree of the Supreme Court, affirming the judgment of the Court of Common Pleas, is set aside. The judgment of the lastmentioned court is also set aside, and the case remanded to that court for new trial, in accordance with the original opinion of the Supreme Court.' Which original opinion that court itself had repudiated on rehearing. The court thereupon adjourned, and the writer left at once, to muse over the uncertainties of law, and to ponder over the spectacle of an inferior court deliberately overruling the Supreme Court of the State." THE ORIGIN OF LEGAL VERBOSITY.-The Scottish Law Review reports an address by Sheriff Guthrie Smith before the Aberdeen Judicial Society, in which he referred to the present arrangements for the procurator's remuneration. "His fee in an ordinary case amounts to nearly a uniform sum, but, in rendering his bill, he is required to split it up into seventy or eighty eighteenpenny items. The many objections to this antiquated system did not escape the keen eye of Adam Smith, who observes:-'It seems the custom in modern Europe to regulate, upon most occasions, the payment of the attorneys and clerks of court according to the number of pages which they had occasion to write; the court, however, requiring that each page should contain so many lines, and each line so many words. In order to increase their payment, the attorneys and clorks have contrived to multiply words, and that of necessity has led to the corruption of the law language of, I believe, every court of justice in Europe. A like temptation might, perhaps, occasion a like corruption in the form of law proceedings.' I think," added the sheriff, "that the time has arrived when this system requires to be reconsidered.". Solicitor's Journal. CALLING UPON THE PRISONER BEFORE SENTENCE. -Scenes like that which occurred upon the conviction of Lee for murder at the Central Criminal Court are frequent, and arise from the practice of 'calling upon' the prisoner after verdict and before sentence. When Lee proposed, in response to the usual question, to discuss the evidence over again and was stopped by the judge, he said: "Then, why am I asked if I have anything to say? It is a mere farce.' So it is, and a wrangle between judge and prisoner, in which the prisoner has the better of the judge, is not a seemly preliminary to the judge passing sentence of death. The practice of calling on the prisoner after verdict now that the legal technicalities which used formerly to be raised at that stage no longer exist, answers no purpose except to tempt the prisoner to reopen the facts of his case, or to glory in or justify his crime. If it is still desirable that the prisoner should have an opportunity of moving in arrest of judgment, the formula might at least be altered in accordance with the fact, so that he may be called on to allege any ground of law why sentence should not be passed, and not at so supreme a moment be solemnly invited to do what he is instantly forbidden doing as soon as he attempts it.-Law Journal (London). DYNAMITING.-Dr. Wharton's recent paper in the Criminal Law Magazine on "Dynamiting and ExtraTerritorial Crime," has been reprinted in several successive numbers of the Irish Law Times. UNCERTAINTY OF THE LAW.-It is never to be forgotten, that what is called the uncertainty of the law is in great part really the uncertainty of facts; and the uncertainty of facts increases in geometrical ratio with the lapse of time, owing to the opportunity for forgetfulness on the part of witnesses, and the entanglement of their interest and feeling in one side or the other of the controversy.-Daily Register. WORK OF THE TEXAS APPELLATE COURTS.-The following tabulated statement of the amount of work transacted by the Higher Courts during their late sessions at Galveston gives an idea of the amount of labor done by them, the status of their dockets, and the great error committed by the Legislature in the passage of a bill which will render the Commission of Appeals a creature of the past after the present Austin term: Number of cases disposed of Dismissed Reversed and dismissed 200 96 22 65 15 24 3 Of these, eighty-five were reports of the Commission of Appeals, which were adopted by this court.-Texas Law Review. WILD WESTERN JUSTICE.-A Chicago judge recently rebuked a person who was sitting in the courtroom with his feet placed upon the table, by sending him, through a bailiff, a piece of paper on which he had written the following query: "What size boots do you wear?" The feet were at once withdrawn; but the gingerly manner in which the judge acted does not seem in keeping with "wild Western justice."-Boston Advertiser. FEDERAL DECISIONS.-The Daily Register says of this publication: "This enterprise of the Gilbert Publishing Company of St. Louis, Mo., we suppose to be the first practical effort to realize the ideal-which, if we remember correctly, originated with Lord Bacon and has been held up to expectation by jurists and law reformers during the intervening generations-of a collation of the substance of the reports at large, according to their topic and with a view to presenting, in a manageable compass, the existing law in its original and authoritative form, but without its original extent and time-consuming adjuncts." The Central Law Journa. ST. LOUIS, JUNE 5, 1885. CURRENT EVENTS. It CHARLES O'CONOR'S LIBRARY. Charles O'Conor's library was lately sold at auction by the Messrs. Leavitt, of New York. They issued a sumptuous catalogue of one hundred pages, and we were favored with a copy. affords a curious study, and we suppose that it illustrates the growth and decline of the law library of every practicing lawyer who attempts to accumulate a large number of books. There is a period of prosperity in the history of every such practitioner, when money comes in rapidly, when he feels every day an eager love for his profession and a desire to know more and more of its literature. new During this period book-buying goes on in a lavish manner. Then comes a period of satiety; he begins to tire of the mere accumulation of books. In fact he tires of reading books. He has learned by thorough experience, that new books do not necessarily embody new ideas, and that while some things come along with new books, such books are, for the most part, mere compilations, mere repetitions of old things, the mere ringing of new changes upon old and worn out ideas. He even finds that this is true to some extent with judicial reports. His experienced eye will run over the head notes of a whole volume of reports without detecting one thing that is really new. And then the reflection takes hold of him, "What is the good of this unending repetition? In what manner is learning increased by this piling of instance upon instance and dictum upon dictum?" Once in a while a grain of gold is discovered in this mass of drifting sand-a kernel of wheat in this bin of chaff. And he clings to the idea that he will keep up his sets of reports, because these furnish the original evidences of the law; and besides, the money will not be thrown away, because reports in full sets are always valuable property. And so he goes on for a while keeping up his sets of reports, even after their contents have ceased to have much interest for him. Finally he retires from practice. His professional Vol. 20-No. 23. income has ceased, and he finds himself obliged to live upon his investments. At this stage of his career he seriously inquires whether he can afford the strain necessary to keep up his sets of reports, and he is apt to conclude that he can not. The denoument often is, that, after he finds himself pressed for the means of living, his whole accumulation of books goes to sale during his lifetime. Although they have become useless to him, he clings to them with an affectionate tenacity; and so they go by piece-meal into the hands of the second-hand dealer to meet particular financial exigencies. If, however, he retires on a good income, as Mr. O'Connor did, he clings to them to the last, and they go to sale in the hands of his executor. The These reflections are singularly verified by this catalogue of Mr. O'Conor's library. It contains very few recent works or recent editions. The Alabama Reports, for instance, end with volume 13. Of the American Reports there are but 33 volumes. The Arkansas and the California Reports each end with volume 19; the Connecticut Reports end with volume 32; and so on through the State reports. same is true of text books. Indeed, Mr. O'Conor seems to have desisted from the general policy of book-buying about the year 1866. It is worthy of mention, however, that his appetite for law journals and law reviews lived to the last. He was a subscriber to the Albany Law Journal, published in his own State, until his death. He took the Southern Law Review during the entire existence of that periodical. He held on to the American Law Review until the year 1880, and bound his volumes of it in half calf. The writer of this article, while editing the Southern Law Review, had one or two courteous letters from Mr. O'Conor. Something had been said in favor of a stand which he had taken on some important public question, and he wrote to express gratitude for what the editor had said, and said he valued highly the good opinions of his professional brethren. On another occasion we wrote to ask him to send us an article on an important question, partly legal and partly political. His reply was, in substance, that he was past the period of active work, and he told us facetiously, that we might put him in the necrology. He had just passed through a period of illness so severe that He spent FIELD'S NEW YORK CODE.-On the 9th of April this celebrated instrument was again debated at length in the New York Assembly, and was passed to its third reading by a vote of sixty-two to thirty-five. More recently it was put upon its final passage and defeated. The contest which this instrument has excited in New York, and the division of opinion among the legal profession as to the practicability of making an outline code of the common law, is a matter of general interest. It will be remembered that this draft of a code was prepared by David Dudley Field some twenty years ago, he having been appointed a commissioner for that purpose. some of the best years and much of the best thought of his life upon it, and it has been pronounced by great lawyers a masterpiece of legal analysis. The opposition to it has assumed two forms: 1. Opposition to any attempt to codify the common law. 2. Criticisms upon this draft of a code. In the debate in the New York Assembly on the 9th of April, which is said to have been the ablest debate which this almost perennial question has ever elicited, it was stated by one speaker that, although this draft of a code contains less than 3000 sections, yet the criticisms which have been lavished upon it had not succeeded in pointing out objections to more than 300 of them, and that most of these objections were trivial. Some of these objections were certainly not trivial, but were very profound objections. For instance, Mr. Sedgwick, in a recent pamphlet, examining the provisions. of this code in respect of damages, found such a glaring error as this: in enumerating the wrongs for which exemplary damages might be given, gross negligence was wholly omitted, and was necessarily excluded by what was defined and expressed. Now, in point of fact, in the litigation of the country, exemplary damages are given for gross negligence far more frequently than for any other cause. The opinions developed in the debate in the New York Assembly were curiously conflicting. One member contended that Field's Code, which had been adopted years since in California, had produced no practical good in that State. This statement was strenuously combatted by another speaker. One speaker said, in substance, that the law was in such a state of confusion and chaos that wealthy and powerful corporatious were able constantly to get the advantage of other litigations in the Court of Appeals; another speaker claimed that, as Mr. Field was a corporation lawyer, the effort to secure the enactment of his Code was an effort in the interest of corporations. The speech of the day was made by the Hon. C. D. Baker, of Steuben County, a new member, who vigorously supported the Code. At the conclusion of his speech, the assembly broke into loud applause. COLONIAL BARRISTERS PRACTICING IN ENGLAND. The rule of the English courts, the Judicial Committee of the Privy Council excepted, which excludes colonial barristers from practicing in them, is, it seems, a rule which works both ways. The Canadians have applied it as against an English barrister. Mr. De Souza, who is an English barrister, claimed the right to practice before the Courts of Ontario without the intervention of the Law Society. The case came before the Common Pleas Division, which held that an English barrister, as such, is not entitled to practice in the Courts of Ontario, unless admitted through the Law Society of the Province. This rule of exclusion, we understand, will not extend to the Canadian militia, so far as to prevent them from doing garrison duty in England and Ireland in the event of a war breaking out between England and Russia. NOTES OF RECENT DECISIONS. STATUTE OF LIMITATIONS-LIABILITY OF STOCKHOLDERS IN A CORPORATION WHICH HAS MADE AN ASSIGNMENT.-In Glenn v. Dorshiemer, in the Circuit Court of the United States for this district it is held by Brewer and Treat, JJ. that where an insolvent corporation ceases to do business and makes an assignment of all its property, including the debts due from its stockholders, to trustees, and authorizes them to collect its debts, dispose of its property and pay its creditors, the liability of its stockholders at once becomes absolute, and the statute of limitations begins to run in their favor immediately. as a new term-something added by the legislature, carrying its own weight, but giving no different meaning to the word material from that which it possessed in prior statutes, and in fact changing the statute only in this respect, that it adds a certain specified matter for which a lien is given." LIENS ON RAILROADS FOR SUPPLIES-Mo. R. S. § 3200 CONSTRUED--OIL NOT A "MATERIAL.” In the Central Trust Co., v. Texas & St. Louis R. Co., Waters Pierce Oil Co., Intervenor, in the United States Circuit Court for the Eastern District of Missouri it is held by Brewer, J. that § 3200 of the Re vised Statutes of Missouri does not give a lien for either lubricating or illuminating oils supplied to railroad companies. "The language of the statute" says the learned judge, 'contains the word 'fuel' in addition to the words 'labor and material;' and it is claimed that the use of the word 'fuel' enlarges the meaning of the word 'material' and makes it broad enough to cover all supplies furnished. But for that word 'fuel' there would be no question. The idea which underlies these lien statutes is that, because the labor and the material have gone into the building of the road or structure and to that extent added to its value, therefore a lien for such labor and material should be given to him who does the one or furnishes the other. Now, fuel does not go into the structure of the railroad; neither does coal oil. It is something used in the running of the road; a part of the supplies necessary for the operation of the road but nothing which goes into the enduring structure. While we may be compelled to follow the language of the statute and give for the fuel furnished a lien, yet I think, in the construction of these statutes, that we should start from the underlying thought of giving security to him who adds to the value of the road, and that we should never carry the statute beyond that unless imperatively demanded by the language used, particularly, as brother Treat suggests, when it would operate to override prior mortgages. So that, while the word 'fuel' is in there, I take it it is not fair to give it the force of enlarging the meaning of the other words, 'material,' etc., but it should be considered * * WILL-DEVISE TO NEXT OF KIn "WHO MAY BE NEEDY."-In Fontaine v. Thompson,1 a will was challenged which contained the following clause: "I give to my brother, W, all the residue of my estate, to be held by him in trust, and to be distributed among my next of kin who may be needy, in such proportions and at such times as in his opinion may be best; and I do authorize him to so dispose of my estate either in kind, or to sell and convert into money." It was held that this devise was valid as to the designated class, the next of kin, but void for uncertainty as to the selected persons, those who might be needy. In Frazier v. Frazier,2 the same court held that the words "to be distributed by the brother among the next of kin, according to their deserts, as he should see at a future time what may turn up," to. pass no estate, and the testator was regarded intestate as to this subject. The Supreme Court of Errors of Connecticut, in the case of Bull v. Bull,3 took what seems to be an opposite view; holding that "it can be ascertained who are the most needy of the brothers and sisters and their children," sustaining a similar devise. The Virginia court now say that Frazier v. Frazier, supra, was not overruled by the subsequent case of Hill v. Bowman, which the court proceed to distinguish from the case before them. EJECTMENT TO SETTLE TITLE TO LAND BETWEEN ADVERSE CLAIMANTS, BOTH OUT OF POSSESSION.-The Code of Virginia contains the following provision: "No person shall bring such action [ejectment] unless he has at the time of commencing it a subsisting in 19 Va. L. J. 168. 2 2 Leigh, 642 (anno 1831). 88 Conn. 47 (anno 1830). 47 Leigh, 650. |