ence to the proof of handwriting in criminal cases at that time, the real objection, according to present views, would certainly be, that the paper itself furnished no evidence against the prisoner, with reference to the charge on which he was tried. It was a mere discussion on an abstract question concerning government, being a criticism on Sir Robert Filmer's absurd treatise which carried back to the first man, in order of primogeniture, the absolute right of kings over their subjects. The writer of the paper, as Locke afterward did, vindicated the right of subjects to resist a sovereign who had betrayed the trust committed to him, but there was not one word with reference to any design against the government of Charles II. This was well put by Sidney when he said-"They have proved a paper found in my study of Caligula and Nero, that is compassing the death of the king, is it?" Even when Lord Howard was recalled after the paper had been read, upon this being asked by the attorney-general, whether there were in the debates at the meetings any reflections upon the king, that he had broken his duty, the witness was obliged to say that he did not remember. The evidence, therefore, on the part of the crown, to connect the paper with the treason charged in the indictment entirely failed. The true view of the law on this subject is stated by Mr. Justice Foster, in his discourse of high treason. "How far words or writings of a seditious nature may be considered overt acts under this branch of the statute [that relating to compassing the death of the king] hath been the subject of several debates. In Mr. Sidney's case it was said scribere est agere. This is undoubtedly true under proper limitations, but it was not applicable to his case. Writing, being a deliberate act and capable of satisfactory proof, may, under some circumstances, with publication, be an overt act of treason. And I freely admit, that, had the papers found in Mr. Sidney's closet been plainly relative to the other treasons charged in the indictment, they might have been read in evidence against him." Foster's Reports, 198.

The record of the conviction of Lord Russell was then put in, though this was clearly not evidence against the prisoner on the indictment. When in Hampden's trial the attorney-general proposed putting in the record of Sidney's conviction, Williams objected to it as not evidence, and it was withdrawn. Sidney after this stated his objections in point of law to the evidence that had been brought forward by the crown. He objected, in substance, that conspiracy to levy war was not treason, within the 25 Edw. III; that there were not two witnesses to prove one overt act; that similitude of handwriting was not evidence of his having written the paper; and that the paper itself had no reference to any conspiracy, but was a mere polemical discourse. It was when speaking to the second point, that Sidney brought forward the celebrated case of Susanna and the

elders, which is still sometimes used effectively in defenses. On the last point, referring to Filmer's work, he said with great force and truth, "Cromwell, when one White, a priest, wrote a book wherein he undertook to prove that possession was the only right to power, though he was a tyrant, and a violent one (you need not wonder I call him tyrant, I did so every day in his life, and acted against him too), it would be so odious a principle, he would not endure it, and he used him very slightly for it. Now this Filmer, that no man must write against, is the man that does assert it, that it is no matter how they came by their power, and gives the same power to the worst usurpers, as they that have rightly come to the crown. By the same argument, if the arrantest rascal of Israel had killed Moses, David, etc., and seized upon the power, he had been possessed of that power, and been father of the people. If this be doctrine, my lord, that is just and good, then I confess it may be dangerous for any thing to be found in a man's house, contrary to it, but if a commoner of England write his present thoughts, and another man looking on his work writes his present thoughts of it, what great hurt is there in it?"

Sidney then called as witnesses Lord Anglesey, Lord Clare and others, to invalidate the credibility of Lord Howard, by showing that he had made statements to them contradictory to, or inconsistent with, the evidence he had given in court, and to prove him to be interested and biased. Sidney then addressed the jury in an able and masterly speech, but without going minutely into the facts. He exposed, however, with much force, the unsatisfactory character of Lord Howard's evidence. The witness had stated that he had gone first into the country and then to Bath, after Smith had been sent to Scotland. Sidney observed, "Mr. Attorney says the plot was broken to the Scots (God knows we were neither broken nor joined), and that the Campbells came to town about the time I was taken; and in the mean time my Lord Howard, the great contriver of all this plot, who was most active, and advised the business that consisted of so much finesse, he goes there and agrees of nothing, and then goes into Essex upon great important business, greater than the war of England and Scotland, to what purpose? To look after a little pimping manor,- and what then? Why then it must be laid aside, and he must be idle five weeks at the Bath, and there is no inquiring after it. Now, I desire your lordship to consider whether there be a possibility for any men, that have the sense of porters and grooms, to do such things as he would put upon us."

The solicitor-general, Heneage Finch, replied, and the chief justice summed up. Jeffreys laid down the law correctly as to a conspiracy to levy war being an overt act admissible to prove the compassing of the king's death, and as to the sufficiency of two witnesses who proved two several overt acts separately. With respect to the proof of handwriting, what he states

is certainly correct according to modern notions; but was, it must be supposed, wrong according to the views which then prevailed. But he was clearly wrong in directing the jury that the paper which had been produced in evidence against Sidney was an overt act of treason. The remarks which he made on the paper itself, although not in the style of which he was capable, could only proceed from a judge who was resolved to give no quarter to the prisoner. We have already mentioned the manner in which he treated the evidence of West and Rumsey as bearing against Sidney. But the most astounding thing he said, was, perhaps, the following: "Next I must tell you, gentlemen, upon, I think, a less testimony, an indictment was preferred against the late Lord Russell, and he was thereupon convicted and executed, of which they have brought the record."

The jury retired to consider their verdict. Jeffreys, it is said, left the court under pretense of taking some refreshments, but in reality saw the jury in private and gave them more particular instructions, the tenor of which may be too readily divined. In half an hour the jury returned and brought in a verdict of guilty. The whole time occupied by the trial was from ten in the morning till six in the evening. This was indeed "justice speedily, without delay." In our own day the tendency may perhaps be to lengthen trials unnecessarily. But it was well observed by Sidney, when, at the conclusion of the address of the solicitor-general, he wished to offer some remarks, and was stopped by Jeffreys, "My lord, it was a wise man said there never could be too much delay when the life of a man is in question." Sidney was brought up for judgment on the 26th of November. When asked by the officer of the court why judgment should not be given against him and execution awarded according to law, he raised various objections to the legality of his trial, to the indictment, and to the evidence. But it was all in vain. Sentence in the usual form in cases of high treason was pronounced by the chief justice. Sidney received the sentence with a noble protest against its injustice.

On the 7th December, Sidney was beheaded on Tower Hill. The rest of his sentence was remitted on account of his family. The bold and heroic manner in which he met his doom was illustrative of his character and his convictions. Professor Smyth, in his lectures on Modern History, eloquently observes: "Sidney marched to the scaffold as to a victory, displaying at his execution, as on his trial, all the bold and sublime traits of the republican character. The steady step, the serene eye, the untroubled pulse, the unabated resolve, 'the unconquerable mind and freedom's holy flame;' the memory that still lingered with delight on the good old cause, as he termed it, for which he was to shed his blood; the imagination, that, even in the moment of death, disdainful alike of the government, its judges, its indictments, and its

executioners, soared away to some loftier code of justice, and hung enamored on its own more splendid visions of equality and freedom." Vol. II, p. 31. Professor Smyth contrasts the heroic end of Sidney with the last moments of Lord Russell-"the husband with whom the bitterness of death was past, when the partner of his bosom had looked her last farewell; the patriot who was filled with no images of liberty drawn from the imperfect models of Greece or Rome, but intent on a monarchy restrained by popular freedom, and on popular freedom civilized by a monarchy." We confess our sympathy with the latter rather than the former, although perhaps John Hampden would be with us the great model of an English patriot. But we willingly acknowledge the service which the lovers of freedom in the abstract have done to the good cause in this country, while we must ascribe our progress in government and law mainly to the moderation and the prudence of the supporters of constitutional liberty.

In our account of the trial of Sidney we have been obliged to pass over many interesting and important matters connected with it. The report itself and the documents relating to it would furnish materials for a volume. But any account of it, however imperfect, will not be without value, if it only shows how justice may be perverted in evil times. The evidence against Sidney would have merely warranted, as in the case of the younger Hampden, an indictment for a misdemeanor, and even then it is doubtful whether it was evidence which ought to have led to a conviction. In the quotation we have made above from Lord Denman, we have seen the impression produced on the mind of that great judge and sound-hearted Englishman by the trial of Sidney. We shall conclude by quoting what Erskine said of it and the other state trials of the same period, the records of which, by the acts for reversing the different attainders, passed after the revolution, were ordered to be taken off the file and obliterated referring to this in his great speech in defense of Hardy, he says: "The order was dictated, no doubt, by a pious tenderness for national honor, and meant as a charitable covering for the crimes of our fathers. But it was a sin against posterity; it was treason against society; for instead of ordering them to be burnt, they should have directed them to be blazoned in large letters, upon the walls of our courts of justice, that, like the characters deciphered by the Prophet of God to the Eastern tyrant, they might enlarge and blacken in your sight, to terrify you from acts of injustice." This is, no doubt, expressed in a somewhat rhetorical and impassioned manner, but it conveys an important lesson. Much as posterity may feel ashamed of such trials as those of Russell and Sidney, it is unwise to consign them to oblivion. They can only be referred to, indeed, to be held up as warnings; warnings against injustice can never be without use as long as men continue to be imperfect and fallible beings.

CODES.

By the constitution of 1846 the people of the State of New York intended to reduce to a definite form, either absolutely or potentially, the ideas of that time concerning the common and statute law. That instrument, by its provisions, overturned many ancient principles, and established in their place those which were believed to be more fully in accordance with modern notions. Some of the changes made we have never approved, and hope in time to see them modified. But the provisions looking toward codifying our whole law, though very imperfectly carried out by the legislature, have been productive of results advantageous to the citizens of New York, and in a much greater degree to those of other States where the work designed for use here has been wholly or partially appropriated.

the style of the civil code of New York." From the few sheets we have received, we can, of course, imperfectly judge what will be the completed work. If the compilation is well made, we do not believe the Pacific commonwealth will go back to her common law. We have yet to hear of a State that has repealed the code.

Men talk about the flexibility and adaptation of our present law, and hesitate to reduce it to a definite form, for fear that it would become rigid and unfitted to meet our changing circumstances and ideas. Every nation on the continent of Europe has a written law; and England, while she delays about a code for herself, has prepared one, and put it in force in her most populous and important province. The truth is, that unwritten law is the concomitant of barbarism, written an essential of civilization. Indeed, we have a written law already, and the only dispute now is, whether it is better for the most of us to look through three or four thousand books to find it, or let the work be done by those who are better able to do it than we.

Five codes were prepared in pursuance of this legislation, within which it was supposed was embraced, as nearly as possible, the whole common and statute law of general application. They were named respectively, the Civil Code, Penal Code, Political Code, Code of Civil Procedure, and Code of Criminal Procedure.

Not one of these codes have yet been adopted in New❘ York. What we use under the name of the Code of Civil Procedure is only a temporary act, hastily drawn up, and intended for use until the more elaborate law should be prepared and enacted. Most of its provisions are of course incorporated into the after-work, but it is meagre and deficient in comparison with that production.

Other States, whether wiser than we or not, have taken the benefit of our codes commissioners' labors. Some have chosen the compilation relating to civil procedure alone, some the civil and criminal, and one or two the whole set. One of the Canadian provinces, some years since, adopted the code of civil procedure, and in England a short time ago, a royal commission composed of able judges and lawyers, reported an act which contains its main features. This act will, before many years, despite the opposition of certain members of the legal profession, receive the sanction of parliament. And we understand the code will, at an early date, be adopted in the Sandwich Islands.

In California, where the procedure codes have long been in force, a commission is preparing a civil code, as the commissioners announce in their preface, "after

CURRENT TOPICS.

The "injunction" suit in New York progresses as rapidly as could be expected. As the board of supervisors refuse to do any thing toward raising money to run the county government, we suppose the next thing in order will be a mandamus. Considering the complicated condition of the city financial accounts, we presume that the tax payers would be pleased to have a scire facias or a certiorari. In the mean time, for the sake of amusement, and to give the courts something to do, suits are being brought against various persons alleged to have in their possession more than they ought of public money.

We have received a letter from J. M. McClure, Esq., late assistant attorney-general of Pennsylvania, in reference to a paragraph appearing in the ALBANY LAW JOURNAL some weeks since, under the head of Legal News, for the publication of which we have been threatened with a libel suit by his attorney. As Mr. McClure asks us in a gentlemanly way to do him justice in the matter, we gladly comply with his desire. The paragraph in question was taken from a daily newspaper, and was placed in our legal news column without intention of injuring the gentleman named, and we believe did him no essential harm. So far as the same is an erroneous statement, we are as anxious as any one to set it right, and should have more cheerfully done it if we had, in the first place, heard from Mr. McClure and not from his attorney.

The proceedings in the New York city litigations are continually becoming more entertaining. Mr. Justice Barnard has let up his injunction order a little so that certain departments can borrow money to meet their daily wants. The power of the civil courts having been sufficiently exercised, that of the criminal is now invoked. The prosecutors began at the top by procuring a warrant for misdemeanor against the mayor himself. The justice who issued it stated that he did not think it just the thing to arrest the chief magistrate of the city, but, if Mr. Hall did not appear and answer the charge at a fixed time, which was designated, an arrest would be made.

Everybody who has had any thing to do with fire insurance policies must have noticed the peculiar stipulations uniformly inserted in them, and designed to limit the liability of the insurers. Not only is the insured forbidden to have about his premises dangerous inflammable materials which would be a proper restriction, but he cannot recover for certain losses uniformly incident to a fire, such as from pilfering, etc. Then a new statute of limitations is usually inserted, whereby the insured is debarred from suing on his policy if he does not commence action within a short time, generally six months, from the happening of the loss. How far many of these one-sided stipulations are valid may be a question of doubt, but we believe that the statute law should provide how far and in what way a general insurer may excuse himself from liability under his contract.

And like provisions should be extended to common carriers especially those who possess a quasi monopoly like railroad, express and telegraph companies. Of course many of the notices printed on tickets, receipts, etc., have been declared by the courts not binding, yet the law should go further and say that they should not be there. There is no excuse for placing upon a railway ticket, for which the regular rates are charged, a statement that it is "good for this day only" or words of like effect. While the notice is untrue it frequently misleads and annoys, and sometimes injures those who are ignorant of their rights.

OBITER DICTA.

Mrs. Apollonia Threedouble is the name of a Louisville litigant.

Punch occasionally injects a joke with a legal bearing. It lately tells of a man who was so particular that he would n't accept the usual lease for 999 years, because they would n't throw in the odd year.

No doubt 'tis a mistake to be so very particular. The following is a case in point. All puns are poor, but it would be too wretched to call the following an exemplification of the " cy pres doctrine:"

A sailor complained of the power of the captains, and spoke bitterly of the character of the skippers of the day. "Why," said he, "not long ago, on the coast of Afriker, a cap'n was going to throw one o' the crew that was dying overboard, before he was dead. So the man says: "You ain't a going to bury me alive, are you?' 'Oh,' says the captain, 'you needn't be so jolly particular to a few minutes.'"

A man can't beat his wife in Allegheny, Pa., and go scot free. The old dictum, wrongly ascribed to Mr. Justice Buller, to the effect that a husband may chastise his spouse, provided he use a stick no bigger than his thumb, finds no welcome in the mayor's court at Allegheny. John Bailey is the name of the wretched man whose conduct has been traveling the rounds of the press; and it is consoling to know that the mayor met John in a proper spirit, and arranged things for John, so he can contemplate in the solitude of his confinement at what disadvantage a man is who undertakes to wallop his better half, and then “talk back" to the court about it.

It was alleged that John was given to strong potations, and while under their influence was not only an unpleasant customer in the family circle, but occasioned considerable annoyance to unoffending neighbors. Mayor Callow had some previous knowledge of

the defendant.

The same was not favorable, and the complaint being pretty strongly supported, the mayor imposed a sentence on Bailey of thirty days' imprisonment at the workhouse, with the usual agricultural employment implied.

"Mr. Callow," said Mr. Bailey, arising from his seat, "I want to tell you something."

"What is it?" inquired the mayor.

"Mr. Callow, I'll put a head on you as soon as I can get out," was the response; and with it the prisoner applied to him a series of strong-flavored epithets of exceedingly irritating purport.

"Mr. Bailey," replied the mayor, "I made a mistake in your sentence."

"You did, and a big mistake at that."

"Yes, Mr. Bailey; instead of sending you for thirty

days to Claremont, I will now send you for ninety."

This codicil aroused the prisoner's ire to an extreme pitch, and he launched into a series of invectives more bitter than the first.

The mayor now for the third and last time sentenced him, this time making the term six months, and the defendant was forthwith removed, in the custody of an officer, vowing that instead of putting one "head" on his honor, he would construct "three" on his judicial shoulders at his earliest convenience, after being released from the workhouse.

If farmers will own unruly rams, and these playful creatures will persist in getting into a neighbor's premises, thereby causing damage to property, as well as frightening the women-folks, what is that neighbor to do? Clearly, it is his duty to bring an action against the proprietor of the destructive quadruped. All this happened not long ago in Vermont. A young student, who had listened patiently to a detailed statement of the facts, rather electrified his preceptor with the suggestion that the law of the case would be found to be that of "a-butter upon another man's land."

DIGEST OF RECENT AMERICAN DECISIONS.

NEW YORK COURT OF APPEALS.*

1. Where certain property (rents accruing from perpetual leases) had, in 1864, been in fact assessed, but to a person not the owner of the rents, and upon petition duly made to the assessors, the same property was put on the roll of 1865, and assessed to the true owner, and a tax levied upon it for 1864,-Held, that such re-assessment was legal and valid. Held, further, that it might be made by the assessors after the time fixed by law for completing their roll for public inspection. Overing V. Foote.

2. Where the assessors had opened their roll for inspection in pursuance of notice given by them, and opposite the name of the plaintiff had left a blank which was to be filled up with a description of lands leased by him as soon as they could discover whether any had been released within the year, and where, after the roll was opened, the plaintiff's agent examined the same, and was informed of the assessors' intention, and he afterward furnished the assessors with a list of plaintiff's property, which was inserted in the roll about the middle of July,-Held, that the assessment was regular, and a tax levied thereunder was valid. Ib.

BURDEN OF PROOF.

1. A party suing upon a negotiable note, purchased before maturity, is presumed in the first instance to be a bona fide holder; but when the maker has shown that this note was obtained from him under duress, or that he was defrauded of it, the plaintiff will then be required to show under what circumstances and for what value he became the holder. First National Bank v. Green.

2. If the evidence as to the plaintiff's title is wholly uncontroverted, and so clearly establishes the plaintiff's title as a bona fide holder for value, that even if the defendant could prove the defense of duress, there would be nothing to submit to the jury, then the defense is properly ruled out; but if otherwise, it should be received. Ib.

3. Where the plaintiff, a bank, discounted a note for one of its customers, and placed the amount to his credit, and there was conflicting evidence as to whether or not it was agreed that the amount should be kept on deposit by such customer until the note should be paid, Held, that evidence offered by the maker, to prove that the note was obtained from him by duress, was improperly rejected. Ib.

1. The common-law liability of common carriers cannot be limited by a notice, though such notice be brought to the knowledge of the persons whose property they carry; but such liability may be limited by express contract. Blossom v. Dodd.

2. Tokens given in exchange for baggage checks are not of such a nature as to put persons on their guard as to memoranda printed on them, and persons receiving them are not presumed to know their contents, or to assent to them. Ib.

3. Accordingly, where a railroad passenger in a car, dimly lighted at one end, delivers his baggage checks to an express messenger, and receives in return a card or receipt on which the number of the check is entered, Appearing in 4th Hand's (43 N. Y.) Reports.

and which also contains an agreement, limiting the liability of the express company, printed in much smaller type than the rest of the card, and so fine as to be illegible where the passenger is sitting, -Held, that the printed matter did not enter into or form a contract between the parties. Ib.

CAUSE OF ACTION.

1. Where an action is brought on a contract, all claims arising under the same, and then due, constitute an entire and indivisible cause of action, and a judgment therein is a bar to any further action founded on such claims. O'Beirne v. Lloyd.

2. A voluntary compromise or satisfaction of the claim made in an action which embraces only part of an entire demand does not necessarily merge the whole demand; it might sever the demand and compromise the part sued for, leaving the rest to stand. Ib.

3. The compromise under the facts of this case, held, not to have so severed the demands. Ib.

CHARITABLE DEVISE.

1. When there is an apparent discrepancy between two statutes, such exposition should be made as that, if possible, both may stand together; and the acts of 1840 and 1841, authorizing charitable and educational corporations to take property in trust, without any expressed limit, are not to be construed as extending the capacity to take, by their charters limited to a fixed sum. Chamberlin v. Chamberlin.

2. For the purpose of ascertaining the estate, only half of which can be devised to charitable or educational corporations, under the act of 1860, the widow's dower and the debts are to be first deducted. Ib.

3. A testator cannot give to two or more corporations, in the aggregate, more than he can give to a single object, viz.: one-half of his estate. Ib.

4. An academy incorporated for the promotion of literature, and authorized to educate males and females, may establish separate departments for each, and, under the general acts of 1840 and 1841, take and hold real estate in trust, to be used for the benefit of either department. Adams v. Perry.

5. Nor is a devise to the academy for such purpose void because it provides that the tuition of daughters of deceased officers, etc., who attend the academy, shall be free. This does not constitute a trust in favor of such officers' daughters, nor render them the beneficiaries, but if they attend they receive their tuition free, and if they do not the academy still takes the property for its own use. Ib.

CLOUD UPON TITLE.

Where the defect appears upon the face of the proceedings through which title is claimed, and such proceedings must necessarily be proved by the purchaser in any suit, to assert his right, there can be no legal cloud upon the owner's title. Overing v. Foote.

CONFLICT OF LAWS.

1. The law of the testator's domicil controls, as to the formal requisites essential to the validity of the will, the capacity of the testator, and the construction of the instrument. Chamberlain v. Chamberlain.

2. When, by the lex domicilii, a will has all the formal requisites to pass title to personalty, the validity of particular bequests will depend upon the law of the domicil of the legatee, except in cases where the law of the domicil of the testator, in terms, forbids bequests for any particular purpose; or in any particular