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against an appeal, and, of course, positively declined to furnish any security therefor. The client, upon this decision being announced to him, drew a pistol and undertook to shoot his counsel. The attempt, by chance, did not succeed. The man is said to be insane, but this is a kind of insanity that should be checked by severe measures.

The legal profession are, as a rule, more honest than those in other callings, but during a year or two there have been a number of lawyers who proved

unfaithful to their trusts. The latest breach of trust of importance came to light in New York last week, where a well-known attorney is charged with misappropriating $130,000 placed in his hands for investment. These occurrences show that lawyers, like other men, are exposed and sometimes yield to temptation. If, however, we take into account the large number of persons connected with the profession who are intrusted with the funds of others,

it is a matter of surprise, as well as congratulation, that so few fall. One can count on the fingers of a single hand the names of those who in the city of New York and its neighborhood, during the past ten years, have proved unfaithful to the confidence reposed in them. Could as much be said with respect to those following any other calling?

The English Court of Appeal has affirmed the decision of the Common Pleas Division- in the case of Dickson v. Reuter's Telegram Co., L. R., 2 C. P. D. 62, that the receiver of a message has no right of action against a telegraph company for a misdelivery of or an error in the telegram. The judgment of the Court of Appeal has not been made public save through the newspapers, but it seems to rest upon the footing that the contract is between the sender and the company, and that the receiver's right of action can only be put on the ground of the doctrine of false representations. Substantially the 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 of such a rule is well illustrated by Dickson's case. The plaintiffs were merchants in Valparaiso, being a branch of a house in Liverpool. Through the error of the company's clerk, confounding the cipher used by them with that used by another house, the plaintiffs received a telegram ordering them to ship barley at a certain price. The plaintiffs bought heavily to fill the supposed order, and as a result of the mistake lost nearly £3,000. The American decisions are the other way, and rightly so, whether put upon the ground that the companies are the common agents of both sender and receiver; or that they are public agents, and owe a duty to the public, or that they are liable to any one injured by their negligence or misfeasance. Dryburg's Case, 35

Penn St. 298; De Rutte's Case, 1 Daly, 547, and Carew's Case, 15 Mich. 526, are direct authorities in favor of a right of action by the receiver of a message, while in a number of other cases the right has been unquestioned. We shall publish the judgment of the Court of Appeal as soon as we receive an authentic copy.

The half dozen or so women who are anxious to become lawyers are in ecstacies over a bill recently introduced in Congress giving females the same rights as males in respect to practicing as attorneys and counselors before the various Federal courts. It is possible, indeed probable, that the bill will pass, as it will be urged on the ground that, under the present system, the discrimination against females is both unjust and ungallant, while the main reason for its existence, namely, that the interests of suitors are better served by men, will be diligently concealed. Congress should leave the matter with the courts, where it has heretofore been left. The bar, when the whole subject of admission and government is within the control of the courts, is made up of better material, occupies a better position, and does its work better than when legislative regulation is undertaken. The experiment of taking from the courts their ancient powers in this matter has been tried in this State with very poor success, and people, bar and bench have welcomed back the old system. We trust Congress will not enter upon

a like experiment.

The Geneva award gave our government a large sum of money which it has found difficulty in disposing of, at least in a way that satisfied any considerable number of those claiming to be interested in the disposition. The Fishery Commission have, however, determined where part of the money shall go, by giving $5,000,000 to Canada as compensation for the right of our people to fish in Canadian

waters.

NOTES OF CASES.

N the case of Simonton v. First Nat. Bank of Minneapolis, 2 N. W. Rep. 11, decided by the Supreme Court of Minnesota on the 19th of October last, one Paine, who was indebted to a society, deposited in a bank certain money for the purpose of paying the debt, and took a certificate of deposit payable to the order of a third party therefor. This was not done in pursuance of any previous arrangement with the society, or any one in its behalf, and it was not known to the society until several days thereafter. On the day of making the deposit, and after it was made, Paine made a general assignment for the benefit of his creditors, and the question that arose was, whether the society or the assignee of Paine was entitled to the money in the bank.

A

The court held that, as the society had not assented to the deposit with the bank, and acquired a right to the money before the assignment, Paine's intent to appropriate it to the payment of his debt to the society was at that time revocable, and could be revoked by any disposition of the money inconsistent with the appropriation first intended, and that the assignment for the benefit of creditors was a revocation. The case of Kelly v. Roberts, 40 N. Y. 432, involved a similar question, and the decision was in harmony with that in the principal case. debtor who had sold a stock of goods made an agreement with the vendee, whereby the vendee was to pay to designated creditors the purchase-price of the stock in satisfaction of the debts due them. Before the creditors accepted this arrangement, the sheriff served an attachment upon the vendee, claiming the purchase-price of the goods as property of the debtor, and his claim was sustained. See, as sustaining a similar doctrine, Warren v. Bacheler, 15 N. H. 129; Wharton v. Walker, 4 B. & C. 163; Scott v. Porcher, 3 Merrivale, 651; Wallwyn v. Couts, id. 707; Dole v. Bodman, 3 Metc. 139; Butterfield v. Hartshorn, 7 N. H. 345.

In the case of Malone v. City of Toledo, 28 Ohio St. 643, certain real estate was appropriated in fee by the State, through its commissioners, for the purposes of a canal. Statutes subsequently passed gave the city of Toledo, within whose limits the land was situated, power to enter thereupon and occupy the same for the purposes of a highway or street, and lay water-pipes and build sewers, and also released to the city all the right of the State in such land. The court held that it was within the power of the legislature to authorize a change from one public use to another of a like kind, and that the former owner of the land taken could not contest the right of the city on the ground that the change of the use was authorized, and had terminated the public interest in the property. See, as upholding a similar doctrine, People v. Kerr, 27 N. Y. 188, where it is said that "a strong inclination is apparent to hold that, when the fee in the public way is taken from the former owner, it is taken for any public use whatever to which the public authorities, with the legislative assent, may see fit afterward to devote it in furtherance of the general purpose of the original appropriation." So, also, in Lex. & Ohio R. R.v. Applegate, 8 Dana, 289, the principle is laid down that, although highways may not be applied to public or private use, incompatible with the ends for which they were established, yet they may be applied to other public purposes than those originally contemplated. But a different rule appears to apply❘ where only the use of the lands for a certain purpose is acquired, the fee remaining in the owner.

Heard v. City of Brooklyn, 60 N. Y. 242. Here land was acquired for a railroad, and the legislature authorized a conveyance of the same to the city of Brooklyn for the purpose of a street, and it was held that by such conveyance the railroad company only relinquished its right, and the owners of the fee were thereupon entitled to enter and take possession. See, also, upon the general subject, Wager v. Troy, etc., R. R. Co., 25 N. Y. 626; State v. Maine, 27 Conn. 641; H. & Q. B. & T. Co. v. Norfolk, 6 Ala. 353; Heath v. Barnum, 49 Barb. 496.

The effect of alterations made in a will by a testator after execution, and the presumption, in the absence of evidence, as to the time when such alterations were made, was the question under consideration in the case of Duffy v. Duffy, 11 Ir. L. T. Rep. 127, recently decided by the Irish Court of Appeal, where, in a will offered for probate, there were a number of interlineations in the handwriting of the testator, and erasures evidently made by him. The court lay down the rule that in order to justify the admission of an alteration to probate, 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 or external, and it may be direct or circumstantial; that is to say, the presumption is against the alteration being made before execution. In Doe v. Palmer, L. R., 16 Q. B. 746, it is held that the presumption is that alterations are made subsequent to execution, and they should be rejected from probate. See, also, Moore v. Moore, 6 Ir. R. Eq. 166; In goods of Duffy, 5 id. 506; - Simmons v. Rudall, 1 Sim. (N. S.) 115; Williams v. Ashton, 1 Johns. & Hem. 115. The result of all the cases seems to be that, in the absence of all evidence on the subject, interlineations and erasures are to be rejected from probate, either because, as it is generally held, the law presumes such alterations in a will as distinguished from a deed to be made after execution, or because the law throws on the person who claims the benefit of such alteration the burden of proving that it was made before execution. See cases supra, and Cooper v. Beckett, 4 Moo. P. C. C. 419. The case of Quinn v. Quinn, 1 T. & C. 437, is an interesting case on this subject. There the testator made extensive alterations in his will after he had executed it, changing legacies and one of the executors. It was claimed that if these alterations were invalid to accomplish the purpose designed by them, they at least operated as a partial revocation of the will. The court held that the will as originally executed should be admitted to probate. See, also, Jackson v. Holloway, 7 Johns. 394; McPherson v. Clark, 3 Bradf. 92; Onions v. Tyre, 1 P. Wms. 343; Short v. Smith, 4 East, 419; Will of Penneman, 18 Am. Rep. 368, and note at p. 376.

CHARLES SUMNER.

never

THE HE recent publication of the Memoirs and Letters of Charles Sumner, by Edward L. Pierce, one of his executors, has revived public interest in one of the most gifted, cultivated and influential of American statesmen. Although Sumner ranked, and perhaps never would have ranked, as a great lawyer, even if he had not early devoted himself exclusively to politics, yet the story of his youthful legal career may be studied not only with interest, but with profit. It may be remarked here,

that his letters collected in these volumes, and filled with reminiscences of English and American judges and lawyers, afford a delightful recreation for our profession; indeed, we do not now recall any legal reminiscences so interesting. We hope at a future day to make an excursion through these letters for the benefit of our readers, but at present we must content ourselves with a few remarks upon Sumner's characteristics as a lawyer, derived mainly from these volumes.

It is evident, in the first place, that Sumner had no original love for the law, except as a science, but that his leaning was toward literature. Choosing the law, however, as the more available profession, he cultivated the theoretical and speculative side of it rather than the practical. The bent of his mind and the course of his studies fitted him rather for a

legal professor and writer than for a champion of causes in the real strife of courts, for a jurist rather than an advocate. His disposition to engraft literature on law was early exhibited. At the age of twenty, while still in college, he writes thus:

"I look upon a mere lawyer, a reader of cases, and cases alone, as one of the veriest wretches in the world. Dry items and facts, argumentative reports and details of pleadings must incrust the mind with somewhat of their own rust. A lawyer must be a man of polish, with an omnium gatherum of knowledge. There is no branch of study or thought

but what he can betimes summon to his aid, if his resources allow it. What is the retailer of law facts

by the side of the man who invests his legal acquisitions in the fair garments of an elegantly informed mind? Every argument of the latter is heightened by the threads of illustration and allusion which he weaves with it."

So early was developed that love of letters which made of Sumner one of the most accomplished scholars in general literature which our country has owned. A little later, after he had entered Harvard Law School, he gives more fully his ideas of the law and the lawyer:

"I had rather be a toad, and live upon a dungeon's vapors, than one of those lumps of flesh that are christened lawyers, and who know only how to wring from obscurities and quibbles that justice which else they never could reach; who have no idea of law beyond its letter, nor of literature beyond their term reports and statutes. If I am a lawyer, I wish to be one who can dwell upon the

vast heaps of law matter as the temple in which the majesty of right has taken its abode; who will aim, beyond the mere letter, at the spirit - the broad spirit of the law, and who will bring to his aid a liberal and cultivated mind. Is not this an honest ambition? If not, reprove me for it. A lawyer is one of the best or worst of men, according as he shapes his course. He may breed strife, and he may settle dissensions of years. But when I look before me and above me, and see the impendent weight,— molem ingentem et perpetuis humeris sustinendam,— I incontinently shrink back. Book peers above book; and one labor of investigation is gone through only to show a greater one. fifty years of enfolding study, have confessed with The greatest lawyers, after the Wise Man that they only knew that they knew nothing." "And here is the place for hope,though we cannot mount to the skies, or elevate ourselves from mother earth, yet we can reach far above those around us, and look with a far keener gaze." "A lawyer must know every thing. He must know law, history, philosophy, human nature; and if he covets the fame of an advocate, he must drink of all the springs of literature, giving ease and elegance to the mind, and illustration to whatever subject it touches."

Really, young Sumner sets himself a high mark, and has his full share of conceit. These brave

"Ah!"

words of a boy of twenty remind us of a conversation that once took place in our hearing. A young law student had been delivering himself very much after this same fashion, when an old lawyer, who heard him, observed, "So you're studying for a lawyer, eh?" The youth answered yes. said the old man, solemnly wagging his head, "you're making a great mistake; a young man of your parts ought not to study for any less than a judge." Young Sumner was "studying for a judge.” Doubtless a few falls in the justices' courts would have taken some of this conceit out of him, and indeed, later in life he desponded of his success at the bar. At the age of twenty-six, however, we find him giving the following advice to a younger lawyer, which we venture to say cannot be excelled in

wisdom:

tate to propose to yourself the highest standard of "Let me suggest, then, that you should not hesiprofessional study and acquirement. Be not deterred by its apparent impracticability, but strive zealously, and you will be astonished at the progress you make. If you place a low standard at which to aim, you will not surely rise above it, even if you reach it; whereas failing to reach a higher mark may be full of honor. In plain language, determine to master the whole compass of law, and do not shrink from the crabbed page of black-letter, the multitudinous volumes of reports, or even the gigantic abridgments. Keep the high standard in your mind's eye, and you will certainly reach some desirable point. I am led to make these suggestions from knowing, from my experience with law students, that the whisperings of their indolence and the suggestions of practitioners with more business than knowledge, lead them to consider that all proper professional attainments may be stored up with very slight study. I know from observation that great learning is not necessary to make money at the bar,

and that, indeed, the most ignorant are often among the wealthiest lawyers; but I would not dignify their pursuit with the name of a profession,-it is in nothing better than a trade. And I feel persuaded, from the honorable ambition which characterizes you, that you would not be content to tread in their humble track. Pursue the law, then, as a science; study it in books, and let the results of your studies ripen from meditation and conversation in your own mind. Make it a rule never to pass a phrase, or sentence, or proposition which you do not understand. If it is not intelligible,- so, indeed, that a clear idea is stamped upon your own mind,consult the references in the margin and other works which treat of the same subject; and do not hesitate, moreover, to confess your ignorance or inability to understand it, and seek assistance from some one more advanced in the pursuit. In this way you will gradually per intervalla ac spiramenta temporis make advances and clear the way. You may seem to move slowly at first; but it is like the tardy labor of fixing the smooth rails on which the future steam car is to bowl through the country. I would not have you understand that I am a devotee of authorities. There are few, I flatter myself, who are more disposed than I am to view the law as a coherent collection of principles rather than a bundle of cases. With me, cases are the exponents of principles, and I would have you read them in order to understand the principles of law and the grounds of them. The best way, therefore, of reading them is in connection with some text-book, following the different references in the margin to their sources, and thus informing yourself of the reasons by which the principles are supported. The most mportant cases in which some principle has been first evolved, or first received a novel application, are called 'leading cases,' and all these should be read with great attention. These are the caskets of the law, containing the great fundamental principles which are applied in numerous subsequent cases of less impression."

He also advises his correspondent to study the characters of reporters and judges, to study legal biography, legal bibliography, and the Norman or law French. This was not mere empty advice. He read law day and night, and especially at night, for then he thought "the dry bones of our science sparkled with phosphorescent light." Mentor knew all that he prescribed for Telemachus, and Charles Sumner was probably at thirty the most accomplished lawyer, so far as law books and literature can make a lawyer, to be found at his age in the United States. His marvelous acquirements commended him to the intimate and life-long friendship of Story and Greenleaf. He was selected by the former to report his decisions in the United States Circuit Court. He gave instruction at the Harvard Law School, at the age of twenty-three, in the place of Story, when the latter was absent on official business at Washington; and it was one of Story's fondest anticipations that Sumner should succeed him in the law professorship at Harvard. He carly became a dístinguished writer on legal topics, and his contributions to the American Jurist may still be read with interest. The speculative turn of his mind was evinced in one of these articles, entitled

"The Number Seven," "a curious enumeration of the instances in which this charmed number reappears in Scripture, history, mythology, astronomy, philosophy, law, and the periods of human life," the upshot of all of which learning was the remarkable fact that there were seven law journals in the United States, which the writer proceeded to review! Vesey's Reports, mainly edited by Sumner, are a highly respectable monument to his learning. Not satisfied with the sources of law learning in this country, he went abroad at the age of twentysix, and spent several years in study and travel, attending lectures on the civil law in Paris, and acquiring an intimate acquaintance with the great English and French lawyers, judges and jurists. No other young American except Ticknor was ever received abroad with such distinction.

The question now arises: Did Sumner succeed at the bar according to his merits and wishes? The answer must be negative. Clients distrusted his practical abilities. Mr. Pierce says: "According to tradition, he weighted his arguments with learning where a skillful handling of testimony would have been most effective, and was not gifted with the quickness of perception which is as essential in the court room as in the field." So, from his return from Europe until 1845, he maintained only a medium position at the bar. All this time he had a positive distaste for politics. On the 4th of July, 1845, an incident occurred which probably determined his future career. Invited to deliver the oration at Boston, at the age of thirty-four — his first public effort on the anniversary of a nation's independence, achieved by arms, within the sound of the bell of the "Old South Church" and the cannon of the United States forts and navy yard, and in sight of Bunker Hill Monument, pointing to the skies from the field of the first great battle in the war of independence, before an audience composed in great part of regular and citizen soldiery, this audacious, original and eloquent young man pronounced that most magnificent of peace orations, "The True Grandeur of Nations." This was the most famous of Fourth of July utterances. It evoked a perfect storm of applause and abuse. The world rang with the orator's words. From that moment he was celebrated at home and abroad. From that moment he ceased to be Charles Sumner, the profound, but unsuccessful lawyer, and became Charles Sumner, the statesman and reformer. From that moment our profession recognized, as he himself seemed to recognize, his true vocation. When we contemplate the grand and historic figure of this champion of human freedom and civilization, may we not take pride in the fact that he was a lawyer, and may we not claim that the principles for which he suffered social ostracism and a lingering death were derived from his study of the most ennobling of professions?

SOME RECENT DECISIONS-21ST AMERICAN.

WE

E look for the issues of this series with about as much interest as our grandfathers used to expect a new Waverly. The present volume is culled from thirty-five volumes of reports of the States of Arkansas, California, Connecticut, Florida, Georgia, Indiana, Kentucky, Louisiana, Massachusetts, Minnesota, Missouri, Nevada, New York, North Carolina, Pennsylvania, Vermont and Virginia, an unusually large number of volumes, and forming one of average interest and usefulness. A good deal of the law here presented comes from what was only a few years ago a "wild-cat" region, but the law has but little of the crudity natural to a new country. On the contrary, some of the best opinions in the volume come from the new States. If there is any noticeable exception to this remark it will be found under the head of criminal law.

Under the title of criminal law this volume contains a good deal that is curious, astonishing and amusing. A curious conflict occurs between the laws of Pennsylvania and that of Louisiana, upon the question whether it is necessary to ask a person convicted of a crime, before sentence, if he has any thing to say why sentence should not be pronounced. In McCue v. Commonwealth, 78 Penn. St. 185, a capital case, this formality was held essential, and its omission fatal; while in State v. Taylor, 27 La. Ann. 393, a case not capital, the contrary was held, the court saying that it was usual, but not necessary. One would naturally suppose that if there is any particular virtue in the form it would be as appropriate in case of a sentence of imprisonment for life as in a capital sentence. But criminal law is a very capricious and unaccountable thing. Another curious case is Jenkins v. State, 53 Ga. 33. A prisoner burned a hole in the guard-house where he was confined, for the purpose of escaping, and with no intent to consume or generally injure the building. Held, not guilty of an attempt to burn a house. This seems rather more humane than the contrary doctrine, in Luke v. State, 49 Ala. 30; 20 Am. Rep. 269, on which we commented in our remarks on the latter volume. Another rather curious case is Stern v. State, 53 Ga. 229. The keeper of a billiard table was indicted for permitting an infant to play billiards thereon without the consent of his parent or guardian. Held, that if defendant honestly believed from the infant's appearance, and his answers to questions, that he was of full age, there could be no conviction. An astonishing decision is that in Commonwealth v. Jackson, 11 Bush (Ky.), 679, which declares that in a prosecution for bigamy, proof of an actual marriage is not necessary, but proof that the prisoner has admitted the double soft impeachment will fix him. (This seems rather in conflict with Schwartz v. Commonwealth, 27 Grattan (Va.), 1025, also reported in this vol

ume.

There the defendant having testified to certain matters, afterward stated that he had sworn falsely, and on a re-examination testified to the contrary of his first testimony. Upon indictment for perjury, held, that his own statement was not sufficient to convict him.) Still more astonishing is the decision in State v. Graham, 74 N. C. 646. There an officer, who had arrested a prisoner charged with larceny, compelled him to put his foot in a track near where the larceny was committed, and testified as to the result of the comparison. Held, that the evidence was not procured by duress, and was competent. The court put the case of the question of identity of a person accused of murder, who ap pears on the trial with a mask, and ask if the court may not order its removal in order to enable a witness to testify whether or not he is the criminal. That is a very illogical comparison, for there the accused is adopting an artifice to evade justice, and of course the law may counteract such a precaution The court may as well compel him to show his face, which he hides, as his whole body, if he secretes that. But the case under discussion is more nearly like that which arose in this State, where a woman accused of suffering an abortion to be procured on herself was compelled by the officers to submit to a surgical examination, and a conviction on such evidence was set aside. If the matter were not serious, we might claim that if comparison of "hands" is illegal, comparison of feet ought to be, and we do think that in this case the court as well as the prisoner "put their foot in it." We now come to an amusing case, State v. Neely, 74 N. C. 425. A negro, seeing a white woman passing alone through a piece of woods, gave chase to her, crying out to her several times to stop. She ran, until she was "out of the woods," and in sight of a dwellinghouse, when the negro, not having overtaken her, ran back into the woods. Held, sufficient to sustain a conviction for assault with intent to commit a rape. Counsel argued in vain that it did not appear that the darkey had any guilty purpose, or that his purpose might have been murder or robbery rather than rape.

His color was against him. We think the opinion of the court, from which, we are glad to say, two judges dissented, is one of the most extraordinary on record. The court say: "For my own part, I think the evidence plenary, and had I been on the jury, would not have hesitated one moment. I see a chicken cock drop his wings and take after a hen; my experience (sic) and observation assure me that his purpose is sexual intercourse; no other evidence is needed." We are happy to see, however, that the judge gives even the "rooster" the benefit of the doubt, for he continues: "Whether the cock supposes that the hen is running by female instinct to increase the estimate of her favor and excite passion, or whether the cock intends to carry his purpose by force and against her will, is a ques

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