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OBITER DICTA.

Serjeant Wilde, afterward Lord Truro, was an early riser. Frequently he would drive to his chambers, in his carriage, by five o'clock, on a winter's morning, prior to his going to Westminster Hall.

Witnesses in divorce suits are apt to "take up" with one side or the other, and stretch their testimony accordingly. In a late case, one witness was persistent in saying that the wife had a very retaliating disposition-that she retaliated for every little thing. "Did you ever see her husband kiss her?" asked the wife's counsel. "Yes, sir; often." "Well, what did she do on such occasions?" "She always retaliated, sir!"

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We have often laughed at the brilliant exclamation of somebody, in addressing a jury: "Gentlemen, the chimney took fire; it poured forth volumes of smokevolumes, did I say? Whole encyclopædias!' But we never before had heard it attributed to any particular individual. It seems the gentleman was a Mr. Marryatt, a former practitioner at the Old Bailey sessions, and afterward queen's counsel. He was called a great case lawyer. He declared that he never opened any book, after he left school, but a law book. Very likely. Not a dictionary, certainly!

A man was arrested in Louisville, Ky., a short time ago, charged with the novel, yet heinous, offense of stealing the tails of two cows. The articles in question were found in the premises of the accused, and, as they were in a detached state, with no animated milk factories upon the premises, to which they might be useful, he was taken into custody and brought before a magistrate. The justice was a man of the world-of the agricultural and rural world-knew a trifle about farming -was acquainted with a thing or two in the way of live stock, besides law calf. With consummate shrewdness, he therefore ordered the "fly brushes" to be taken to the cows, "to see if they fitted." Circumstantial evidence was too much for the prisoner, and he was committed on the charge of larceny.

At a jury trial, recently, in Minnesota, the judge asked the usual questions before proceeding with a case, whether any gentleman of the panel was disqualified by interest, or otherwise, from sitting as a juror. No one replied that he was. Plaintiff's counsel, who was a thin, hatchet-faced, dyspeptic-looking individual, rather tartly challenged one man, and had him removed. This obstacle to perfect justice having been surmounted, things were beginning to proceed pleasantly, when a tall, broad-shouldered fellow, with a look of infinite good humor in his face, got up slowly and asked to be excused.

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COURT OF APPEALS ABSTRACT.

NEGLIGENCE.

1. Duty of city officials: when city liable for overflow of sewers.-The plaintiffs were damaged by the overflow into their premises of a sewer, maintained by the city of Syracuse. The overflow was caused by an obstruction in the sewer, composed of fallen bricks and street dirt. By the charter of the city it is the duty of the mayor and common council to open and repair sewers. Held, that the finding of a neglect of duty on the part of the city officials is essential to plaintiffs' case. That no case has gone so far as to hold that there is an absolute undertaking on the part of the corporation, that their constructions shall at all times be in proper conditions, or to hold the city responsible without some wrongful act or negligent omission on its part. McCarthy v. City of Syracuse. Opinion by Rapallo, J.

2. But the mere absence of notice to the city officials of the obstruction of a sewer does not absolve the city from the charge of negligence. It is its duty to keep the sewers in repair, and this involves a degree of watchfulness in ascertaining their condition, from time to time, and preventing them from becoming obstructed, and the omission to make examinations and to keep the sewers clear is a neglect of duty which renders the city liable. Ib.

3. The excavation by the plaintiffs of the area under their sidewalk was lawful, and they were not bound to leave the earth there as a protection against a possible overflow of the same. Ib.

PRACTICE.

1. Partition suit: not allowable when defendant holds lands adversely. To maintain an action for the partition of lands, the plaintiff must, at the time of the commencement of the action, have an actual or constructive possession in common with the defendants of the land sought to be partitioned. Florence v. Hopkins. Opinion by Rapallo, J.

2. A subsisting adverse possession is a bar to the action. It is intended for the partition of lands in the possession of part owners, and not for the recovery of lands held adversely. Ib.

3. The defendant in her answer set up a claim to the whole of the lands sought to be partitioned, and proved a subsisting adverse provision at the time of the commencement of the action for partition. Held, that the action could not be maintained. Ib.

4. Appeal from general term: not allowed when judgment has been reversed on questions of fact.- In a case tried before a jury where the judgment has been reversed, and a new trial granted upon questions of fact, and the proceedings have been regular, an appeal will not lie to this court. Wright v. Hunter. Opinion by Rapallo, J.

5. This case which had been tried by a jury was regularly before the general term for review as well upon the facts as the law. The evidence was such as to justify a reversal upon the facts. The opinion of the court, after reviewing the evidence and expressly approving of the rulings of the judge at the trial, stated, that the error was not of the judge but of the jury, and a new trial was granted. Held, that the failure of the defendant to obtain an entry of the grounds of decision on the judgment of reversal is no reason for depriving him of a new trial, and that an appeal to this court should be dismissed. Ib.

6. Appeal from order of general term. - An order

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made at general term reversing the order of a special term absolutely, granting no new trial cannot regularly be appealed from as an order. The proper mode of reviewing it is to cause judgment of reversal to be perfected and to appeal from that judgment. Mehl v. Vander Walbeke. Opinion by Rapallo, J.

SHERIFF.

1. When liable for escape: releasing prisoner under void order. In order to justify a sheriff in releasing a person imprisoned for debt, upon the orders of a county court, it must be shown that the court had jurisdiction of the parties to the controversy upon whom the orders were to operate, or that the orders were on their face such as the court could make for his guidance. Bullymore v. Cooper. Opinion by Folger, J.

2. But if the orders do not state facts, which if existing gave general and special jurisdiction, they will not per se protect the sheriff. Ib.

3. In order to give the county court jurisdiction under 2 R. S. 32, §§ 1, 2, 3, 4, 5, 6 the requirements of the statute must be fully complied with, and the failure to indorse the affidavit required by section five will debar the court of jurisdiction. Not only a petition but a verified petition is necessary. Ib.

4. An allegation in the petition of the debtor that he has been declared a bankrupt, under the United States bankrupt law, and that an assignee has been appointed, etc., does not satisfy the requirement of the statute that there shall be an account of the estate of the petitioner. Ib.

5. The defendant, a sheriff, released one F. A., debtor in his custody, upon an order of the county court. Held, that the order not showing jurisdiction, and the court having failed to obtain jurisdiction of the proceedings for F.'s discharge, the defendant was liable for an escape. Ib.

STATUTES.

1. Construction of: legislative power as to public works. -The act of April 12, 1865, prohibiting the construction of any drain or sewer in the city of New York, unless such sewer or drain shall be in accordance with a general plan, etc., applies where proposals for the work had been advertised, and bids opened before the passage of such act. Petition of Protestant Episcopal Opinion by Rapallo, J.

Public School et al. 2. Even if the opening of the bids gave a vested right such contract would not deprive the legislature of the power to prohibit the construction of the sewer. The power of the legislature to regulate the manner of doing public works cannot be foreclosed by the contract of a municipal corporation. Ib.

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WILL.

1. Power of corporation to take under; effect of void bequest. The testator, residing in Connecticut, disposed by will, of real and personal property, situate in this State. After giving certain legacies, the seventh clause gave the residue, real and personal, wherever situate, to trustees in fee-simple, upon trusts in favor of testator's daughter and her children, should she have any surviving, etc., and, in case of the death of daughter leaving no relative who could take under the will, to pay certain legacies, and then to divide the remainder between six societies named. The personal estate was more than sufficient to pay all the specific legacies. Held, that the validity of the bequests of personal property must be determined by the law of the domicile of the testator, and the validity of the devise of

real estate in New York, by the law of this State. White v. American Colonization Society and others. Opinion by Grover, J.

2. That one of the societies (The Southern Aid Society), being a voluntary unincorporated association until the time of the testator's death, could not take a devise under the law of this State. Ib.

3. To constitute a conversion of real estate into personal, under a trust, in the absence of an actual sale, it must be made the duty of the trustees to sell it in any event. A mere discretion to sell produces no such result; and the Southern Aid Society could take no interest under a power to sell. Ib.

4. Another of the societies named (The American Colonization Society) was incorporated under the laws of Maryland, and had under these laws authority to take lands by devise. Held, that this did not give it the power to take lands by devise in this State. That the word statute in section 3 of the Statute of Wills (2 R. S. 57), refers to a statute of New York only. Ib.

5. That another of the societies (The American Tract Society), having no power to take lands by devise at the time of the testator's death, could not by subsequent legislative act be enabled to take under the void devise. The property not effectually disposed of by the will vested in the heirs, and cannot be taken from them by legislative act and bestowed on others.

6. That the property undisposed of by reason of the inability of the devisees to take, vested in the heir of the testator (who was his daughter) at his death, and upon such heir's death, went to her heirs, and those who would have been heirs of the testator, had he survived the daughter, had no right to it. Ib.

PROMISSORY NOTE FRAUDULENT IN ITS

INCEPTION.

HAMILTON v. VOUGHT.*

1. A note fraudulent in its inception cannot be invalidated in the hands of a party taking it for value, before maturity, unless actual fraud can be shown in such party so taking it.

2. That such note was taken under suspicious circumstances will not avail to defeat it, unless such circumstances are sufficient to prove mala fides in the holder of the paper.

3. Mere carelessness in taking such note will not, of itself, impair the title; bnt carelessness may be so gross that bad faith may be inferred from it.

Case certified from the Sussex circuit court.
Hamilton & McCarter for the plaintiff.
Coult & Pitney for the defendant.

BEASLEY, Ch. J. We have presented to our consideration, in this case, but a single question, viz.: Whether the title of a holder of negotiable paper, acquired before it was due, for valuable consideration, is affected by the fraud of a prior party, without proof of bad faith on the part of such holder.

At the trial of this cause the jury was instructed that if the holder of the note sued on— - the plaintiff in the action-acquired his title under circumstances which should have put a person of ordinary prudence on his guard, the note was invalid, if its inception had been fraudulent.

The verdict was in favor of the defense, and the plaintiff now insists that the judicial instruction should

* Supreme Court of New Jersey.

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have been that suspicious circumstances attending the acquisition of his title was not sufficient to defeat his claim, unless of a character to raise a conviction of actual fraud on his part.

Counsel who so ably argued this case in behalf of the defendant did not deny that the modern English authorities were hostile to their position, but they went upon the ground that the rule thus sanctioned was an innovation, and consequently would not be followed by this court. The ancient rule, it was maintained, is that declared in Gill v. Cubitt, 3 Barn. & Cress. 466. This decision was made in the year 1824, and, beyond all question, it sustains the principle now claimed by the defense, for, in the reported case referred to, the jury were explicitly told that "there were two questions for their consideration: first, whether the plaintiff had given value for the bill, of which there could be no doubt; and, secondly, whether he took it under circumstances which ought to have excited the suspicions of a prudent and careful man.' The authority is directly in point, and the only question which can arise is, whether it correctly states the ancient rule of the common law upon the subject.

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My first remark in this connection is, that, from the opinion of the judges in the case of Gill v. Cubitt, it appears that the doctrine adopted was intended to be an innovation upon the antecedent practice, and that it was avowedly opposed to a decision of the greatest weight. Twenty-three years before, in the year 1801, Lord Kenyon, in Lawson v. Weston, 4 Esp. 56, had expressly repudiated the idea that suspicious circumstances, in the absence of actual fraud, would avoid a note in the hands of a holder for value. But this doctrine did not harmonize with the views of the judge in the case of Gill v. Cubitt, and it was accordingly overruled. Thus, Chief Justice Abbott says, in his opinion: "I think the sooner it is known that the case of Lawson v. Weston is doubted, at least by this court, the better. I wish doubts had been cast on that case at an earlier time." And he concludes: "For these reasons, notwithstanding all the unfeigned reverence I feel for every thing that fell from Lord Kenyon, by whom Lawson v. Weston was decided, I cannot think that the view taken by that learned lord was a correct one." Nor is this rejection of this antecedent decision attempted, in the slightest degree, to be put upon the foundation of pre-existing authority; not a case is referred to for its justification, and although in Lawson v. Weston the authority of Lord Mansfield, in Miller v. Race, was mooted, no remark is made on that circumstance. I think a perusal of the opinions in Gill v. Cubitt will satisfy any one that it was a well understood intention to deviate from the legal rule upon this subject which had previously existed; or, if any doubt should remain, such doubt will certainly be dispelled by a reference to the case of Slater v. West, 3 Carr. & Payne, 325, decided in the year 1828, in which Chief Justice Abbott (then Lord Tenterden), in laying down the doctrine that a person is not entitled to recover who takes a bill of exchange "under circumstances which ought to excite suspicion in the mind of a reasonable man, says: "This doctrine is of modern origin. I believe I was the first judge who decided this point at nisi prius. The court to which I belong confirmed my decision, and the other courts have, I believe, acted on the same principle." And Chief Justice Bayley, in his opinion in Gill v. Cubitt, is equally explicit. "But it is said"-such is his language

"that the question usually submitted for the consideration of the jury, in cases of this description, up to the period of time at which my lord chief justice's direction was given, has been whether the bill was taken bona fide, and whether a valuable consideration was given for it. I admit that has generally been the case." From these citations, I think it is manifest that the judges who participated in the decision of the case of Gill v. Cubitt were aware that, by the views expressed by them, they introduced a novelty, and departed from the older practice of the courts. That the principle adopted in that case was an innovation seems to me unquestionable. I have shown that it is irreconcilable with Lawson v. Weston. So it plainly occupies the same relation to the case of Peacock v. Rhodes, Doug. 632, decided by Lord Mansfield in 1781. The rule which it endeavors to overthrow will be found sustained in Miller v. Race, 1 Burr. 452; Price v. Neal, 3 id. 1355; Grant v. Vaughan, id. 1516; Anonymous, 1 Ld. Raym. 738; Morris v. Lee, 2 id. 1396. There was not a case cited upon the argument, nor have my researches led me to one, anterior to the decision of Gill v. Cubitt, which sustains the doctrine there propounded. I confidently conclude, therefore, that the case above criticised cannot stand on the ground of ancient authority. In my apprehension, the original rule, as it existed in the time of Lords Kenyon and Mansfield, was that nothing short of mala fides would vitiate the title of the holder of negotiable paper, taking it for value before maturity. It is entirely out of the question, therefore, for this court to regard Gill v. Cubitt as imperative authority. It is true that that case was followed for a time, to a considerable extent, by the English courts. But, as I have already said, in England the original rule has been re-instated. In Backhouse v. Harrison, 5 B. & Ad. 1098, Mr. Justice Patterson says: "I have no hesitation in saying that the doctrine first laid down in Gill v. Cubitt, and acted upon in other cases, has gone too far, and ought to be restricted." And in Goodman v. Harvey, 4 Ad. & El. 870, Lord Denman thus forcibly expresses the rule at present prevailing in the courts at Westminster: "The question I offered to submit to the jury was, whether the plaintiff had been guilty of gross negligence or not. I believe we are all of opinion that gross negligence only would not be a sufficient answer where the party has given consideration for the bill. Gross negligence may be evidence of mala fides, but it is not the same thing. We have shaken off the last remnant of the contrary doctrine. Where the bill has passed to the plaintiff without any proof of bad faith in him, there is no objection to his title. The following cases recognize and enforce the same rule: Uther v. Rich, 10 Ad. & El. 784; Artbouin v. Anderson, 1 Ad. & El. (N. S.) 498; Stephens v. Foster, 1 Cromp., Mees. & Ros. 894; Palmer v. Richards, 1 Eng. L. & Eq. 529; Marston v. Allen, 8 Mees. & Wels. 494; Raphael v. Bank of England, 17 C. B. 161.

An examination of the American reports will disclose a similar mutation of judicial opinion upon this subject. For a time, in several of the States, the rule broached in the case of Gill v. Cubitt has been acted upon; but now, in most of them, and in those of the most commercial importance, that rule has been entirely discarded. Magee v. Badger, 34 N. Y. 247; Bel. Bank of Ohio v. Hoge et al., 7 Bosw. 543; Worcester, etc., Bank v. Dorchester, etc., Bank, 10 Cush. 488; Matthews v. Poythress, 9 Ga. 387; Ellicott v. Martin, 6 Md. 509; Crosby v. Grant, 36 N. H. 273.

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The subject has also recently been settled, after an elaborate discussion and full consideration in the supreme court of the United States, in the case of Goodman v. Simonds, 20 How. 343, the result being an explicit repudiation of the doctrine that suspicious circumstances will, per se, vitiate the title to commercial paper.

From this brief review of the cases, I think it may be safely said, that the doctrine introduced by Lord Tenterden stands at the present moment marked with the disapproval of the highest judicial authority. Nor does such disapproval rest upon merely speculative grounds. That doctrine was put in practice for a course of years, and it was thus, from experience, found to be inconsistent with true commercial policy. Its defect -a great defect, as I think-was, that it provided nothing like a criterion on which a verdict was to be based. The rule was that, to defeat the note, circumstances must be shown of so suspicious a character that they would put a man of ordinary prudence on inquiry; and, by force of such a rule, it is obvious, every case possessed of unusual incidents would, of necessity, pass under the uncontrolled discretion of a jury. An incident of the transaction from which any suspicion could arise was sufficient to take the case out of the control of the court. There was no judicial standard by which suspicious circumstances could be measured before committing them to the jury. And it is precisely this want which the modern rule supplies. When mala fides is the point of inquiry, suspicious circumstances must be of a substantial character; and if such circumstances do not appear, the court can arrest the inquiry. Under the former practice, circumstances of slight suspicion would take the case to the jury; under the present rule, the circumstances must be strong, so that bad faith can be reasonably inferred. Thus the subject has passed from the indefinite to the comparatively definite; from the intangible to the comparatively tangible. From a mere matter of fact, the question, to some extent, has become one of law. I cannot doubt, when we recollect that inquiries of this nature always attend that class of cases where judgments are sought against innocent and unfortunate parties, that the change is most beneficial. All experience has shown how hard it is to prevent juries from seizing on the slightest circumstance, to avoid giving a verdict against the maker of a note which had been obtained by fraud or theft. To preserve the negotiability of commercial paper, and guard the interests of trade, it is absolutely necessary that large power should be placed in the judicial hand when the question arises as to what facts are sufficient to defeat the claim of the holder of a note or bill which has been taken before maturity, and for which value has been paid. It is only in this mode that the requisite stability in transactious of this kind can be retained. But I do not think the difference between the two rules above discussed is as great as some persons have supposed. In my apprehension, the entire variance consists in the degree of proof which the court will require in order to submit the inquiry to the jury. Mere carelessness in taking the paper will not, of itself, impair the title so acquired; but carelessness may be so gross that bad faith may be inferred from it. Nor is it necessary, in order to defeat the title of the holder, that he have actual knowledge of the facts and circumstances constituting the particular fraud; it is sufficient if he have knowledge that the paper is tainted with any fraud, although he may be ignorant of the nature of it. In

the case of May v. Chapman, 16 Mees. & W. 355, Baron Parke says: "I agree that 'notice and knowledge' means not merely express notice, but knowledge or the means of knowledge, to which the party willfully shuts his eyes." Reviewed in this sense, as I have already remarked, the principle seems to me to be a highly salutary one, and, in the language of Professor Parsons, is well "adapted to the free circulation of negotiable paper and the true interests of trade." 1 Pars. B. & N. 259.

I think a new trial should be granted.
Scudder and Van Syckel, JJ., concurred.

ENGLISH JUDGES.

The judges can tell odd stories of going circuits. The functionaries, and sometimes even the prisoners, are much disgusted if instead of a Westminster judge they have to deal with some counsel whose name has been included in the commission. A prisoner for murder was greatly annoyed because he had to be tried by a "journeyman judge." A sheriff once told a judge that they had been "often jobbed off with sergeants instead of judges in those parts, and was he really a bona fide judge?" Having had his mind satisfied on this point, the sheriff gracefully took his place by the side of the judge on the back seat, but was politely informed by the judge that etiquette required that he should sit opposite. Once a judge complimentary told a mayor that he presided over an ancient city. my lord," was the answer, "it always was an ancient city." We expect that it was the same gentleman who expressed a hope that Mrs. Judge and all the little Judges were well. A sheriff asked a judge at a circuit dinner whether he had gone to see the elephant in the last place. "Why no, Mr. High Sheriff," he replied, "I cannot say that I did, for a little difficulty occurred; we both came into the town in form, with the trumpet sounding before us, and there was a point of ceremony to be settled which should visit first."

"Yes,

There have been judges who have acquired certain little tricks and peculiarities of manner. This is rather a drawback to a judge. It is always especially necessary that there should be no trick of temper; that he be not a "roarer." A peculiarity which is said to have belonged to several judges is that of speaking aloud. There are two very awkward habits against which absent-minded men should guard-soliloquizing aloud when they walk, and walking when they are asleep.

Some absurd stories have been told of judges thinking aloud. The following story is told by one of the registrars of the court of chancery of a great chancellor: "A barrister, whom he had not previously heard, was retained to argue before him. The counsel was a man of ability, but began in a very confused, blundering manner. Lord Chancellor: "What a fool the man is!" After a while he got more cool and collected. Lord Chancellor: "Ah! not such a fool as I thought." Finally, he quite recovered himself, and proceeded admirably. Lord Chancellor: "Egad! it is I that was the fool." It is a worse fault of a judge when he is supposed to be too much under the influence of some counsel. Thus, Sir Fletcher Norton was notoriously a terror to the bench in his day. Lord Mansfield was thought to favor unduly men who, like himself, had been to Westminster and Christ Church. The great Lord Tenterden was supposed to be fascinated, like the juries, by Scarlett-the Mr. Subtle of "Ten Thousand a Year,"-to whom he had often

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been a junior. Lord Westbury, when Mr. Bethell of the bar, had an extraordinary influence with some judges, and also awoke extraordinary antagonisms.

But the worst faults a judge can have is a short temper. We have in our mind's eye a learned judge and most excellent man, whose court was sometimes no better than a bear garden, through his unfortunate defect of temper and judgment. There was one judge who had a trick of checking witnesses when they got on too fast for his notes by saying, "Stay, stay." He was called the old staymaker. Ofttimes they show admirable temper and discretion. A judge who was summing up a case was greatly disturbed by a young counsel who was talking aloud. With great benignity he said, "Mr. Gray, if you ever arrive here, which some of these days I hope you will do, you will know the inconvenience of counsel talking while you are summing up.' A curious story is told illustrating the legal precision of a great judge. He asked a magistrate on a circuit dinner whether he would take some venison. The gentleman aswered, "Thank you, my lord, I am going to take boiled chicken. Lord Tenterden retorted, that, sir, is no answer to my question; I ask you again if you will take venison, and I will thank you to answer yes or no, without further prevarication." The story was originally told in the Quarterly Review, but it is challenged by Lord Campbell.

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Another unfortunate characteristic of some judges is the extreme promptness with which they make up their minds and take a side on a case. There is a subtle atmosphere which soon tells the advocate whether the court is with him or whether he has to fight the up-hill game of a losing cause. Counsel often watch, with extreme anxiety, even trivial utterances of the judges which may indicate the direction of their mind. The most upright and impartial judges who endeavor to keep their judgment perfectly balanced, are liable, human nature being what it is, certainly, and perhaps insensibly, to take a side. I believe they have left it on record that when a case has been fairly opened, and the testimony was given clearly, honestly and in a pleasing way, they made up their minds on one side before they heard the other. Mr. Grote discusses this subject in one of the admirable notes to his immortal history. Wise judges watch against this tendency, and are able to conquer it. Still, in the case of any protracted trial it is easy to see on which side the judge's opinions rest, and even his sympathies. With some judges the habit of advocacy has grown so inveterate that they are quite unable to lay it aside. If ever they have seriously tried they have not succeeded in the attempt. The case has even been known of a judge on the bench thundering like an advocate at Nisi Prius. A judge once said that he had only lost two verdicts since he had been raised to the bench. What one likes to see in a judge is a quiet, vigilant watchfulness; the alert eye, the unwearying hand, the thoughtful, composed manner. I have seen cases where, except to the initiated, the judge seemed little more than a passive spectator for a considerable portion of the case-but he would have interfered at any moment-and when his proper time came he showed how complete had been his proper grasp of the case, and how acute his attention to all details. An able judge once said, "Nobody knows how much energy it requires in a judge to hold his tongue." The most conspicuous example of an intellectual failure in fairness was Sir John Leach. He delighted to gallop through his cases. He was so fast that a stage coach

was named after him-"The Vice-Chancellor." Almost as soon as a case was opened he decided against a plaintiff or a defendant, and never thoroughly heard it through. It was wondered what he would find to do after he had cleared his list off. "Do! why, he will hear the other side." was the acute answer. This was, indeed, an egregious example-if the facts stated of him are true, and they are stated by Lord Kingsdown; such a judge himself deserved the penalty of a criminal. It is always worth while for barristers carefully to attend to the slightest indication of judicial opinion. I remember a case in an equity court in which the buying and selling of some living was concerned. When the case had made some progress the judge quietly observed, "Does Simon Magnus appear at all in the action?" The counsel at once told the solicitor that the judge evidently looked upon the transaction as one of simony, and the case was forthwith withdrawn.

But sometimes it is impossible to say in which way the opinion of the judge leans. My own opinion is that they have not been at the trouble of forming an opinion. Charles Dickens has hit this off-as he hits off every thing-capitally: "Mr. Justice Stoneleigh summed up in the old-established and most approved form. He read as much of his notes to the jury as he could decipher on so short a notice, and made running comments on the evidence as he went along. If Mrs. Bardell were right it was perfectly clear that Mr. Pickwick was wrong, and if they thought the evidence of Mrs. Cluppins worthy of credence, they would believe it, and if they didn't, why they wouldn't." If some judges are anxious to guide the jury, others are anxious to evade the responsibility. They must save themselves a great deal of wear and tear. Still, in many cases, provincial juries are so crassly stupid that they require to be guided unless there should be continual miscarriage of justice. One remedy would be that a large proportion of the cases now tried by juries should be summarily disposed of by judges. Another remedy would be that there should be a large infusion of the grand jury element in the petty jury. Cases are on record in which judges have confessed themselves mistaken. One judge, thinking that he had caused an injustice to be done which it was beyond his power to rectify, left the injured person a large sum of money in his will. It is said that the case of Lord Cochrane, afterward Earl of Dundonald, almost broke the heart and hastened the resignation and death of Lord Ellenborough. That great man and most upright magistrate had conceived a political prejudice against Lord Cochrane, and summed up violently against him. He afterward saw good reason to believe that he had been mistaken in his facts, and had been too harsh in his sentence. - London Society.

It is pleasing to know of Lord Mansfield, that after he had retired he delighted to talk over every important case of the day with a certain barrister, who, in turn, became a great judge. Lord Mansfield was very kind to the bar. When his court sat very late on one occasion, he addressed the counsel, "gentlemen, as you have lost your dinners you had better come and dine with me." Judges are very good in asking young barristers of their acquaintances to dinner, but such bonhommie as Lord Mansfield's it would be hard to find

now.

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