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against an appeal, and, of course, positively declined | Penn St. 298; De Rutte's Case, 1 Daly, 547, and to furnish any security therefor. The client, upon Carew's Case, 15 Mich. 526, are direct authorities in this decision being announced to him, drew a pistol | favor of a right of action by the receiver of a mesand undertook to shoot his counsel. The attempt, sage, while in a number of other cases the right has by chance, did not succeed. The man is said to been unquestioned. We shall publish the judgment be insane, but this is a kind of insanity that should of the Court of Appeal as soon as we receive an be checked by severe measures.

authentic copy.

The half dozen or so women who are anxious to The legal profession are, as a rule, more honest than those in other callings, but during a year or

become lawyers are in ecstacies over a bill recently two there have been a number of lawyers who proved

introduced in Congress giving females the same unfaithful to their trusts.

rights as males in respect to practicing as attorneys The latest breach of

and counselors before the various Federal courts. trust of importance came to light in New York last

It is possible, indeed probable, that the bill will pass, week, where a well-known attorney is charged with misappropriating $130,000 placed in his hands for

as it will be urged on the ground that, under the

present system, the discrimination against females investment. These occurrences show that lawyers, like other men, are exposed and sometimes yield to

is both unjust and ungallant, while the main reason temptation. If, however, we take into account

for its existence, namely, that the interests of suitthe large number of persons connected with the pro

ors are better served by men, will be diligently confession who are intrusted with the funds of others,

cealed. Congress should leave the matter with the

courts, where it has heretofore been left. The bar, it is a matter of surprise, as well as congratulation, that so few fall. One can count on the fingers of a

when the whole subject of admission and govern

ment is within the control of the courts, is made single hand the names of those who in the city of New York and its neighborhood, during the past

up of better material, occupies a better position,

and does its work better than when legislative reguten years, have proved unfaithful to the confidence

lation is undertaken. The experiment of taking reposed in them. Could as much be said with re

from the courts their ancient powers in this matter spect to those following any other calling?

has been tried in this State with very poor success,

and people, bar and bench have welcomed back the The English Court of Appeal has affirmed the

old system. We trust Congress will not enter upon decision of the Common Pleas Division in the case

a like experiment. of Dickson v. Reuter's Telegram Co., L. R., 2 C. P. D. 62, that the receiver of a message has no right of

The Geneva award gave our government a large action against a telegraph company for a mis

sum of money which it has found difficulty in disdelivery of or an error in the telegram. The judg

posing of, at least in a way that satisfied any conment of the Court of Appeal has not been made

siderable number of those claiming to be interested public save through the newspapers, but it seems to

in the disposition. The Fishery Commission have, rest upon the footing that the contract is between

however, determined where part of the money shall the sender and the company, and that the receiver's

go, by giving $5,000,000 to Canada as compensation right of action can only be put on the ground of the

for the right of our people to fish in Canadian doctrine of false representations. Substantially the

waters. same conclusion was reached by the Queen's Bench in Playford v. United Kingdom Telegraph Co., L. R., 4 Q. B. 706; S. C., 2 Alb. L. J. 236. The hardship

NOTES OF CASES. of such a rule is well illustrated by Dickson's case. In the case of Simonton v. First Nat. Bank of MinThe plaintiffs were merchants in Valparaiso, being a | + neapolis, 2 N. W. Rep. 11, decided by the Subranch of a house in Liverpool. Through the error preme Court of Minnesota on the 19th of October of the company's clerk, confounding the cipher last, one Paine, who was indebted to a society, deused by them with that used by another house, the posited in a bank certain money for the purpose of plaintiffs received a telegram ordering them to ship paying the debt, and took a certificate of deposit barley at a certain price. The plaintiffs bought payable to the order of a third party therefor. This heavily to fill the supposed order, and as a result of was not done in pursuance of any previous arrangethe mistake lost nearly £3,000. The American de- ment with the society, or any one in its behalf, and cisions are the other way, and rightly so, whether it was not known to the society until several days put upon the ground that the companies are the thereafter. On the day of making the deposit, and common agents of both sender and receiver; or that after it was made, Paine made a general assignment they are public agents, and owe a duty to the pub- for the benefit of his creditors, and the question lic, or that they are liable to any one injured by that arose was, whether the society or the assignee their negligence or misfeasance. Dryburg's Case, 35 l of Paine was entitled to the money in the bank.

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The court held that, as the society had not assented Heard v. City of Brooklyn, 60 N. Y. 242. Here land to the deposit with the bank, and acquired a right was acquired for a railroad, and the legislature auto the money before the assignment, Paine's intent thorized a conveyance of the same to the city of to appropriate it to the payment of his debt to the Brooklyn for the purpose of a street, and it was society was at that time revocable, and could be held that by such conveyance the railroad company revoked by any disposition of the money inconsist- only relinquished its right, and the owners of the fee ent with the appropriation first intended, and that were thereupon entitled to enter and take possession. the assignment for the benefit of creditors was a See, also, upon the general subject, Wager v. Troy,

The case of Kelly v. Roberts, 40 N. Y. etc., R. R. Co., 25 N. Y. 626; State v. Maine, 27 432, involved a similar question, and the decision Conn. 641; H. & Q. B. & T. Co. v. Norfolk, 6 Ala. was in harmony with that in the principal case. A 353; Heath v. Barnum, 49 Barb. 496. debtor who had sold a stock of goods made an agreement with the vendee, whereby the vendee was The effect of alterations made in a will by a testo pay to designated creditors the purchase-price of tator after execution, and the presumption, in the the stock in satisfaction of the debts due them. absence of evidence, as to the time when such alterBefore the creditors accepted this arrangement, the ations were made, was the question under considersheriff served an attachment upon the vendee,ation in the case of Duffy v. Duffy, 11 Ir. L. T. claiming the purchase-price of the goods as property | Rep. 127, recently decided by the Irish Court of of the debtor, and his claim was sustained. See, as Appeal, where, in a will offered for probate, there sustaining a similar doctrine, Warren v. Bacheler, 15 were a number of interlineations in the handwritN. H. 129; Wharton v. Walker, 4 B. & C. 163; Scott | ing of the testator, and erasures evidently made by v. Porcher, 3 Merrivale, 651; Wallwyn v. Couts, id. him. The court lay down the rule that in order to 707; Dole v. Bodman, 3 Metc. 139; Butterfield v. | justify the admission of an alteration to probate, Hartshorn, 7 N. H. 345.

there must be evidence that it was made before the execution of the will, though such evidence may be

either internal, that is, appearing from the will itself In the case of Malone v. City of Toledo, 28 Ohio | or external, and it may be direct or circumstantial; St. 643, certain real estate was appropriated in fee that is to say, the presumption is against the alteraby the State, through its commissioners, for the pur- tion being made before execution. In Doe v. Palmer, poses of a canal. Statutes subsequently passed gave L. R., 16 Q. B. 746, it is held that the presumption the city of Toledo, within whose limits the land is that alterations are made subsequent to execution, was situated, power to enter thereupon and occupy and they should be rejected from probate. See, the same for the purposes of a highway or street, also, Moore v. Moore, 6 Ir. R. Eq. 166; In goods of and lay water-pipes and build sewers, and also re | Duffy, 5 id. 506; Simmons v. Rudall, 1 Sim. (N. S.) leased to the city all the right of the State in such 115; Williams v. Ashton, 1 Johns. & Hem. 115. The land. The court held that it was within the power result of all the cases seems to be that, in the absence of the legislature to authorize a change from one of all evidence on the subject, interlineations and public use to another of a like kind, and that the erasures are to be rejected from probate, either beformer owner of the land taken could not contest cause, as it is generally held, the law presumes such the right of the city on the ground that the change alterations in a will as distinguished from a deed to of the use was authorized, and had terminated the be made after execution, or because the law throws public interest in the property. See, as upholding on the person who claims the benefit of such alteraa similar doctrine, People v. Kerr, 27 N. Y. 188, tion the burden of proving that it was made before where it is said that “a strong inclination is appa- execution. See cases supra, and Cooper v. Beckett, rent to hold that, when the fee in the public way is 4 Moo. P. C. C. 419. The case of Quinn v. Quinn, taken from the former owner, it is taken for any 1 T. & C. 437, is an interesting case on this subject. public use whatever to which the public authorities, There the testator made extensive alterations in his with the legislative assent, may see fit afterward to will after he had executed it, changing legacies and devote it in furtherance of the general purpose of the one of the executors. It was claimed that if these original appropriation.” So, also, in Lex. & Ohio R. alterations were invalid to accomplish the purpose R.v. Applegate, 8 Dana, 289, the principle is laid down designed by them, they at least operated as a parthat, although highways may not be applied to pub tial revocation of the will. The court held that the lic or private use, incompatible with the ends for will as originally executed should be admitted to which they were established, yet they may be ap- probate. See, also, Jackson v. Holloway, 7 Johns. plied to other public purposes than those originally 394; McPherson v. Clark, 3 Bradf. 92; Onions v. contemplated. But a different rule appears to apply Tyre, 1 P. Wms. 343; Short v. Smith, 4 East, where only the use of the lands for a certain pur- 419; Will of Penneman, 18 Am. Rep. 368, and note pose is acquired, the fee remaining in the owner. at p. 376.

vast heaps of law matter as the temple in which the CHARLES SUMNER.

majesty of right has taken its abode; who will aim, THE recent publication of the Memoirs and Letters beyond the mere letter, at the spirit — the broad

spirit of the law, and who will bring to his aid a 1 of Charles Sumner, by Edward L. Pierce, one

| liberal and cultivated mind. Is not this an honest of his executors, has revived public interest in one ambition? If not, reprove me for it. A lawyer is of the most gifted, cultivated and influential of one of the best or worst of men, according as he American statesmen. Although Sumner never

shapes his course. He may breed strife, and he may

settle dissensions of years. But when I look before ranked, and perhaps never would have ranked, as

me and above me, and see the impendent weight,a great lawyer, even if he had not early devoted molem ingentem et perpetuis humeris sustinendam, -I himself exclusively to politics, yet the story of his incontinently shrink back. Book peers above book; youthful legal career may be studied not only with

and one labor of investigation is gone through only

to show a greater one. The greatest lawyers, after interest, but with profit. It may be remarked here,

fifty years of enfolding study, have confessed with that his letters collected in these volumes, and filled | the Wise Man that they only knew that they knew with reminiscences of English and American judges nothing.” “And here is the place for hope, and lawyers, afford a delightful recreation for our

though we cannot mount to the skies, or elevate our

selves from mother earth, yet we can reach far above profession; indeed, we do not now recall any legal

those around us, and look with a far keener gaze." reminiscences so interesting. We hope at a future “A lawyer must know every thing. He must know day to make an excursion through these letters for law, history, philosophy, human nature; and if he the benefit of our readers, but at present we must

covets the fame of an advocate, he must drink of content ourselves with a few remarks upon Sumner's

all the springs of literature, giving ease and elegance

to the mind, and illustration to whatever subject it characteristics as a lawyer, derived mainly from

touches.” these volumes. It is evident, in the first place, that Sumner had

Really, young Sumner sets himself a high mark, no original love for the law, except as a science, but

and has his full share of conceit. These brave that his leaning was toward literature. Choosing

words of a boy of twenty remind us of a conversathe law, however, as the more available profession,

tion that once took place in our hearing. A young he cultivated the theoretical and speculative side of

law student had been delivering himself very much it rather than the practical. The bent of his mind

after this same fashion, when an old lawyer, who and the course of his studies fitted him rather for a

heard him, observed, “So you're studying for a legal professor and writer than for a champion of

| lawyer, eh?” The youth answered yes. "Ab!" causes in the real strife of courts, for a jurist rather

said the old man, solemnly wagging his head, than an advocate. His disposition to engraft litera

“you're making a great mistake; a young man of ture on law was early exhibited. At the age of

your parts ought not to study for any less than a twenty, while still in college, he writes thus:

judge.” Young Sumner was “studying for a judge."

Doubtless a few falls in the justices' courts would “I look upon a mere lawyer, a reader of cases, and cases alone, as one of the veriest wretches in

have taken some of this conceit out of him, and inthe world. Dry items and facts, argumentative re deed, later in life he desponded of his success at the ports and details of pleadings must incrust the mind bar. At the age of twenty-six, however, we find with somewhat of their own rust. A lawyer must

him giving the following advice to a younger law. be a man of polish, with an omnium gatherum of knowledge. There is no branch of study or thought

yer, which we venture to say cannot be excelled in but what he can betimes summon to his aid, if his wisdom: resources allow it. What is the retailer of law facts

“Let me suggest, then, that you should not hesiby the side of the man who invests his legal acquisitions in the fair garments of an elegantly informed

tate to propose to yourself the highest standard of

professional study and acquirement. Be not demind? Every argument of the latter is heightened by the threads of illustration and allusion which he

terred by its apparent impracticability, but strive

zealously, and you will be astonished at the progress weaves with it.”

you make. If you place a low standard at which So early was developed that love of letters which to aim, you will not surely rise above it, even if you

reach it; whereas failing to reach a higher mark made of Sumner one of the most accomplished schol

may be full of honor. In plain language, determine ars in general literature which our country has to master the whole compass of law, and do not owned. A little later, after he had entered Harvard shrink from the crabbed page of black-letter, the Law School, he gives more fully his ideas of the law

multitudinous volumes of reports, or even the gigan

tic abridgments. Keep the high standard in your and the lawyer:

mind's eye, and you will certainly reach some desir"I bad rather be a toad, and live upon a dun able point. I am led to make these suggestions geon's vapors, than one of those lumps of flesh that from knowing, from my experience with law stuare christened lawyers, and who know only how to dents, that the whisperings of their indolence and wring from obscurities and quibbles that justice | the suggestions of practitioners with more business which else they never could reach; who have no than knowledge, lead them to consider that all proper idea of law beyond its letter, nor of literature be-/ professional attainments may be stored up with very yond their term reports and statutes. If I am a slight study. I know from observation that great lawyer, I wish to be one who can dwell upon the I learning is not necessary to make money at the bar,

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and that, indeed, the most ignorant are often among “The Number Seven," "a curious enumeration of the wealthiest lawyers; but I would not dignify the instances in which this charmed number reaptheir pursuit with the name of a profession, it is in nothing better than a trade. “And I feel per

pears in Scripture, history, mythology, astronomy, suaded, from the honorable ambition which charac

philosophy, law, and the periods of human life,” terizes you, that you would not be content to tread the upshot of all of which learning was the remarkin their humble track. Pursue the law, then, as a able fact that there were seven law journals in the science; study it in books, and let the results of

United States, which the writer proceeded to reyour studies ripen from meditation and conversation in your own mind. Make it a rule never to pass a

view! Vesey's Reports, mainly edited by Sumner, phrase, or sentence, or proposition which you do not are a highly respectable monument to his learning. understand. If it is not intelligible, — so, indeed, Not satisfied with the sources of law learning in that a clear idea is stamped upon your own mind,

this country, he went abroad at the age of twentyconsult the references in the margin and other works which treat of the same subject; and do not

six, and spent several years in study and travel, at

six, and spent several y hesitate, moreover, to confess your ignorance or in tending lectures on the civil law in Paris, and acability to understand it, and seek assistance from quiring an intimate acquaintance with the great some one more advanced in the pursuit. In this

English and French lawyers, judges and jurists. way you will gradually — per intervalla ac spiramenta temporis — make advances and clear the way. You

No other young American except Ticknor was ever may seem to move slowly at first; but it is like the received abroad with such distinction. tardy labor of fixing the smooth rails on which the

The question now arises: Did Sumner succeed at future steam car is to bowl through the country.

the bar according to his merits and wishes? The I would not have you understand that I am a devotee of authorities. There are few, I flatter myself, answer must be negative. Clients distrusted his who are more disposed than I am to view the law practical abilities. Mr. Pierce says: “According as a coherent collection of principles rather than a

to tradition, he weighted his arguments with learnbundle of cases. With me, cases are the exponents

ing where a skillful handling of testimony would of principles, and I would have you read them in order to understand the principles of law and the

have been most effective, and was not gifted with grounds of them. The best way, therefore, of read | the quickness of perception which is as essential in ing them is in connection with some text-book, fol- the court room as in the field.” So, from his return lowing the different references in the margin to their

from Europe until 1845, he maintained only a mesources, and thus informing yourself of the reasons by which the principles are supported. The most

| dium position at the bar. All this time he had a important cases in which some principle has been positive distaste for politics. On the 4th of July, virst evolved, or first received a novel application, 1845, an incident occurred which probably deterare called 'leading cases, and all these should be mined his future

mined his future career. Invited to deliver the oraread with great attention. These are the caskets of

tion at Boston, at the age of thirty-four – his first the law, containing the great fundamental principles which are applied in numerous subsequent cases of public effort — on the anniversary of a nation's inless impression."

dependence, achieved by arms, within the sound of He also advises his correspondent to study the the bell of the "Old South Church " and the cannon characters of reporters and judges, to study legal of the United States forts and navy yard, and in biography, legal bibliography, and the Norman or sight of Bunker Hill Monument, pointing to the law French. This was not mere empty advice. He skies from the field of the first great battle in the read law day and night, and especially at night, for war of independence, before an audience composed then he thought "the dry bones of our science in great part of regular and citizen soldiery, this sparkled with phosphorescent light." Mentor knew audacious, original and eloquent young man proall that be prescribed for Telemachus, and Charlesnounced that most magnificent of peace orations, Sumner was probably at thirty the most accom- "The True Grandeur of Nations." This was the plished lawyer, so far as law books and literature most famous of Fourth of July utterances. It evoked can make a lawyer, to be found at his age in the a perfect storm of applause and abuse. The world United States. His marvelous acquirements com- rang with the orator's words. From that moment mended him to the intimate and life-long friendship he was celebrated at home and abroad. From that of Story and Greenleaf. He was selected by the moment he ceased to be Charles Sumner, the proformer to report his decisions in the United States found, but unsuccessful lawyer, and became Charles Circuit Court. He gave instruction at the Harvard | Sumner, the statesman and reformer. From that Law School, at the age of twenty-three, in the place moment our profession recognized, as he himself of Story, when the latter was absent on official busi seemed to recognize, his true vocation. When we ness at Washington; and it was one of Story's contemplate the grand and historic figure of this fondest anticipations that Sumner should succeed champion of human freedom and civilization, may him in the law professorship at Harvard. He carly we not take pride in the fact that he was a lawyer, became a distinguished writer on legal topics, and and may we not claim that the principles for which his contributions to the American Jurist may still be he suffered social ostracism and a lingering death read with interest. The speculative turn of his were derived from his study of the most ennobling mind was evinced in one of these articles, entitled l of professions ?

| ume. There the defendant having testified to SOME RECENT DECISIONS — 218T AMERICAN.

certain matters, afterward stated that he had sworn W E look for the issues of this series with about as falsely, and on a re-examination testified to the con

W much interest as our grandfathers used to trary of his first testimony. Upon indictment for expect a new Waverly. The present volume is perjury, held, that his own statement was not sufficulled from thirty-five volumes of reports of the cient to convict him.) Still more astonishing is the States of Arkansas, California, Connecticut, Flor decision in State v. Graham, 74 N. C. 646. There ida, Georgia, Indiana, Kentucky, Louisiana, Massa an officer, who had arrested a prisoner charged with chusetts, Minnesota, Missouri, Nevada, New York, larceny, compelled him to put his foot in a track North Carolina, Pennsylvania, Vermont and Vir near where the larceny was committed, and testified ginia, - an unusually large number of volumes, and as to the result of the comparison. Held, that the forming one of average interest and usefulness. A evidence was not procured by duress, and was comgood deal of the law here presented comes from petent. The court put the case of the question of what was only a few years ago a “wild-cat" region, identity of a person accused of murder, who apbut the law has but little of the crudity natural to a pears on the trial with a mask, and ask if the court new country. On the contrary, some of the best may not order its removal in order to enable a witness opinions in the volume come from the new States. to testify whether or not he is the criminal. That If there is any noticeable exception to this remark is a very illogical comparison, for there the accused it will be found under the head of criminal law. is adopting an artifice to evade justice, and of

Under the title of criminal law this volume con- course the law may counteract such a precaution. tains a good deal that is curious, astonishing and The court may as well compel him to show his face, amusing. A curious conflict occurs between the which he hides, as his whole body, if he secretes that. laws of Pennsylvania and that of Louisiana, upon But the case under discussion is more nearly like the question whether it is necessary to ask a person that which arose in this State, where a woman acconvicted of a crime, before sentence, if he has cused of suffering an abortion to be procured on any thing to say why sentence should not be pro- herself was compelled by the officers to submit to a nounced. In McCue v. Commonwealth, 78 Penn. St. surgical examination, and a conviction on such evi185, a capital case, this formality was held essential,dence was set aside. If the matter were not seriand its omission fatal; while in State v. Taylor, 27 ous, we might claim that if comparison of "hands" La. Ann, 393, a case not capital, the contrary was is illegal, comparison of feet ought to be, and held, the court saying that it was usual, but not we do think that in this case the court as well necessary. One would naturally suppose that if as the prisoner “put their foot in it." We now there is any particular virtue in the form it would come to an amusing case, State v. Neely, 74 N. C. 425. be as appropriate in case of a sentence of imprison- A negro, seeing a white woman passing alone ment for life as in a capital sentence. But criminal through a piece of woods, gave chase to her, crying law is a very capricious and unaccountable thing out to her several times to stop. She ran, until she Another curious case is Jenkins v. State, 53 Ga. 33. A was “out of the woods," and in sight of a dwellingprisoner burned a hole in the guard-house where he house, when the negro, not having overtaken her, was confined, for the purpose of escaping, and with ran back into the woods. Held, sufficient to sustain no intent to consume or generally injure the building. | a conviction for assault with intent to commit a Held, not guilty of an attempt to burn a house. rape. Counsel argued in vain that it did not appear This seems rather more humane than the contrary that the darkey had any guilty purpose, or that his doctrine, in Luke v. State, 49 Ala. 30; 20 Am. Rep. purpose might have been murder or robbery rather 269, on which we commented in our remarks on the than rape. His color was against him. We think latter volume. Another rather curious case is Stern the opinion of the court, from which, we are glad v. State, 53 Ga. 229. The keeper of a billiard table to say, two judges dissented, is one of the most was indicted for permitting an infant to play bil extraordinary on record. The court say: “ For my liards thereon without the consent of his parent or own part, I think the evidence plenary, and bad I guardian. Held, that if defendant honestly believed been on the jury, would not have hesitated one from the infant's appearance, and his answers to moment. I see a chicken cock drop his wings and questions, that he was of full age, there could be take after a hen; my experience (sic) and observation no conviction. An astonishing decision is that assure me that his purpose is sexual intercourse; no in Commonwealth v. Jackson, 11 Bush (Ky.), 679, other evidence is needed." We are happy to see, which declares that in a prosecution for bigamy, however, that the judge gives even the "rooster" proof of an actual marriage is not necessary, but the benefit of the doubt, for he continues: “Whether proof that the prisoner has admitted the double the cock supposes that the hen is running by female soft impeachment will fix him. (This seems | instinct to increase the estimate of her favor and rather in conflict with Schwartz v. Commonwealth, excite passion, or whether the cock intends to carry 27 Grattan (Va.), 1025, also reported in this vol- I his purpose by force and against her will, is a ques

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