of the Gothic Universities are the Readings,' still established in the English Inn of Court; and of which an early sample in Bacon's 'Readings on the Statute of Uses.' But these were readings to the pupils by either a teacher or, as with the Romans, by one in turn of the pupils themselves; whereas, the reading must be by themselves for both the Motings and the Declamation. The rationale of the degradation is now plain. A people of the personal purview find it difficult to conceive how a man can be developed mentally by his own exercise or meditation; or otherwise than by collision with external things or persons. To read to others or be lectured at is their main notion of study, though this alone can give the habits and the discipline of generality. The result is, that with the English, these fundamentals are ignored, or only groped for preposterously back through the crowd of particulars; and so that their Examination is much as if, in navigation, one would try to sail a vessel by inverting places between hull and rigging.

Still there are great excuses and compensations for the perversity. In the first place the thing is necessary to the particular place in history, and to the mental purview of the races in question. And, in the next place, one excess, such as here, the schools of Declamation run out to superficial knowledge, and an ossifying uniformity, could be subverted only by an opposite excess, which disengages the materials for a higher stage of progress. This is what the Gothic peoples have done throughout by the Roman empire in its population, religion, government and jurisprudence. And in the relatively small matter of Legal education, this analytic mission by the great race of personality, makes its appearance in the process of Competitive Examination. So, what our project would have to look for from this procedure also, as from the schools of Declamation, is not yet a method, but its mere materials, the materials of particularity, as from the ancients those of generality.

A double proof of this economy is furnished by the fact that, as our Law has known nothing of the declamation proper, and only as shrunk successively to the Motings and the Readings, so the ancients, to the last, scarce attained a gleam of Examination. I can remember at this moment nothing formally of the kind. Quinctilian, who, himself, left a large collection of Declamations, may be taken as a consummate criterion on the question. In speaking of the real examination of witnesses, he separates the aggregate matter into two parts, or according as the topics are within the cause or else extraneous to it. The former portion of the process was, he says, unknown in the schools: Ejus rei sine dubis nec disciplina ulla in scholis, nec exercitatis traditur. But as examples of it he refers to the Platonic dialogues. With even these, however, all was kept within the cause,' or had a special end. Of the other branch of the division, which as extraneous, was without an end, there was thus even no example, not to speak of exercise or discipline; but to this category would belong the Competitive Examination. The same authority has also described the schools of Declamation in strict coincidence with the conception which I sent you of the Motings, or as being an image of the general business of the Profession-forentium actionum meditatio.

Another observation to guide your readers in this second system. As the Motings might, I said, through their ground of permanence and generality, be committed for control or even constitution to the Legisla

ture, so the Competitive Examination may be organized by the Judiciary. Like the judges, it has to do, we saw, with persons, particulars, causes, while the lawmakers deal mainly with things, their attributes and conditions. Not that your judges would possess the higher requisites for such a task as the philosophic principles and dialectic training. But they could best supply the want of these among our lawyers from their experience, in awaiting the publication of the Institutes which I announced to you. Some broad suggestions will meanwhile be reflected also from the ensuing Letter, in which I shall attempt to sketch the crowning stage of the general project. I will here add but a clearer notion of the Competitive Examination.

In fact I know of no attempt made to determine its exact nature, or any distinct recognition of its place in method or instruction. We saw it fall above into the general order of dialectic, as opposed to the Motings in which the practice should be rather logical. But within dialectic or analysis in general, it will be still desirable to assign it a special character. Examination then, or interrogation, must lie wholly among persons. But it may be either, first, by each person of himself; and which is properly for exercise or rather investigation. Or it may, secondly, be of another, and by this other reciprocally; as with the parties to a dispute or a suit at law, and which is contention. Or, finally, it may be of many, and among them all in concert; which appears to be the correct nature of Competitive Examination.

The interrogator for mere exercise must conclude for his own proposition. He whose object is victory must conclude, on the contrary, against his own thesis or question, as put insidiously. But where the object is indoctrination, the enquiry is directed according as the thesis, or the conclusion is the lesser known. Again, in the stage of exercise the parties all may succeed or fail; and so it forms the passage from the Motings and the primary class of Examination. In the second, or contentious species, the one must gain and the other lose. But in the third, the parties, both or all, may gain without loss to any, by embracing more comprehensively the object of research. This is, then, the Examination proper or Competitive, which becomes at last social, from being merely personal or merely general.

To this brief sketch of the leading laws of the process for your present guidance, I may add that this general or primary extreme of it appeared in history in the written pleadings prepared for litigants by Isocrates. The personal or contentious extreme soon followed with the Sophists; whose conception or Examination seems revived in the English practice. Aristotle lays it bare in his own penetrating fashion. The master and disciple he describes as echoes to each other; and thus the latter became speedily as learned as their teachers. But these Sophists, he explains, delivered (like the English Boards of examiners) but merely tradition, and not art or institution. It was, he proceeds with a touch of the Socratic simile, as if having professed the art of curing sore or tender feet, they knew neither how to pare the corns, nor to procure implements to that end, but merely brought a stock of shoes from which to choose the more easy fitting. These, he adds, had no doubt their use; but to supply them was not science but commerce. And he accordingly defines the Sophists, a man who trafficks in pretended knowledge. But here the likeness would doubtless fail in the English examiners.

At all events they can be of small service to you in the construction of our third and the correct species of Examination, and of which we shall have more to show in the next week's letter. The present must be closed with a postscript on the Washington treaty, which has just undergone the most eccentric perhaps of its queer vicissitudes. I shall group a few remarks upon it under three heads, or in its bearings on the Law of nations, on the pleadings of the parties, and on the final issue between the two countries.

The announcement of the arbitrators is in terms as follows: "that these claims do not constitute, according to the principles of international law applicable to such cases, good ground for an award of compensation or computation of damages between nations." In the first place, this draftage is unmistakably English, and not unworthy of even the High-Joint Commission. For instance claims do not constitute at all a foundation, good or bad, or according to any thing or for any; but require on the contrary, to be supported with a foundation. So these claims were by the Americans urged for other ends than to get damages. Again, there may be damages that are commutable, though not computable. And finally, what are the principles of International law precluding them? These gentlemen were formally obliged to produce them. When even private individuals, not to speak of public bodies, assume to volunteer a judgment, they are bound to support it. If they be asked for the opinion, they may keep to merely giving it; but in obtruding it their reasons could alone excuse the insolence. These are school boy rules of the decorum of public discourse. But I would challenge these High arbitrators, 'individually and collectively,' to name a principle, a rule, or even an authority such as they intimate.

And even if they could, what would be the avail? They did not make the declaration officially, or as decision. They on the contrary disclaimed expressly all reference to the treaty; under which it was, however, that they could have power to pronounce on any thing. The obiter dicta of a public judge are not authority; and immeasurably less so could be those of a tribunal composed merely by the two parties themselves and for their single case. Moreover it is but one of the parties that has here accepted - England merely acquiesces in her own negative allegation, that the damages prescribed were not included in the Treaty; and therefore her assent can add no sanction to the dictum, even if this had not besides been uttered without respect to the treaty.

The American government alone has accepted, by both submitting to it, and as 'a great principle of public law.' And never (as the thing at present strikes me) did you commit a grosser blunder. From that moment you lost your previous mastery of the position. You submit to an opinion pronounced against you unofficially, without a semblance of proof, and by plain contrivance of the adversary; and thus own yourselves to have been hitherto trying to outrage this same great principle.' Your diplomatists were no doubt tempted, by the snappish and attorney spirit that disgraces this transaction throughout upon both sides, into supposing that England too was thus committed for the future. But England is committed to nothing of the kind; not even by her own individual engagement. Beside the reason above mentioned of accepting merely what she had contended for, there is the fact that she contended for it, not as a principle, but as a bargain. She bargained,

as she still insists, by the fact miscalled a treaty, for the exclusion of a certain sort of damages from this case. It was her strong point in the contest, as I pointed out some months ago in a letter on the subject in the Anglo-American Times, and where I proposed that the treaty should be rather styled the Washington Bargain.

But can England after all expect this blunder of our government to put an end to her tribulations, that she should go off into extacies? If instead of being the obiter dictum of a Board created by the two parties, this exclusion had been made by an award regular and reasoned, even then what could it add to International Law? In the absence of this jural and social sanction of the Law, what security could it furnish to England herself? What assurance did she receive that the Senate will accept it? Or even if they were to ratify it as they surely will not-would even that supplement foreclose the matter against our sovereign people? Would that 'wild democracy' have scruples about the sanction of a narrow compact, when a treaty formed solemnly among the leading powers of Europe, was the other day torn in the face of the same England, by the most absolute and conservative of the governments of the world?

1. In this action plaintiffs and defendants are members of a voluntary unincorporated association, known as the "Mutual Pleasure Club." The club contracted with defendant, Rauhr, who was its commodore, for a pleasure boat, which Rauhr agreed to build for $1,000. The boat was built, and $500 paid by the club to Rauhr on account thereof. After the boat was launched it was found defective, and Rauhr, on being informed of this, agreed to build the club a new boat. He did not build the new boat. This action was brought in the marine court of the city of New York, to recover back the $500, in the names of the present plaintiffs, as members of the club, and as assignees of all its other members except the four defendants, Rauhr, McGrady, Richardson and Haviland, the last three of whom were made defendants because they refused to join in the assignment to the plaintiffs, or in the suit as plaintiffs. The jury found a verdict for the plaintiffs, for $500, and this was affirmed by default in the marine court, general term; and the defendant, Rauhr, appealed to the New York common pleas, general term, where the judgment was reversed. Held, that plaintiff could not maintain an action in his own name upon a contract made with the association, nor has he an interest therein, which he can so transfer that his assignee can maintain an action against the contractor with the association; nor can one member maintain an action at law, in behalf of the association, against another member upon any agreement made with the association. Opinion by Folger, J. McMahon et al. v. Rauhr et al. 2. Also, held, under the provisions of section 352 of the Code, the general term of the common pleas of the city of New York has no jurisdiction to review, upon appeal, a judgment of affirmance by default of the general term of the marine court. As a judgment of affirmance by default is not an actual determination, and that jurisdiction cannot be conferred upon an appellate court by consent or stipulation of the parties. Ib.

AQUARIAN RIGHTS.

H. and L., being the owners of certain premises upon which was a mill, known as "the old mill," erected a dam and reservoir, and constructed a flume to convey the water from the reservoir to the mill. H., having acquired title to the whole premises, conveyed "the old mill" property to B. The deed contained a grant of the rights and privilege to use the water of the reservoir for the use of the mill, and a condition that, in case the mill should not be kept in use, the water privileges and right of flowage should cease and revert to H. H. subsequently contracted to sell to B. a portion of the premises lying between "the old mill" and the reservoir. B. erected thereon a mill and took the water from the reservoir for its use, abandoning "the old mill," and thereafter assigned the contract to S., to whom H. conveyed in pursuance of the contract. Neither the contract nor deed made mention of the water privileges conveyed to plaintiff. Subsequently H. conveyed the lands upon which was the reservoir to defendant C., who proceeded to fill up the reservoir and remove the flume. Held, that the presumption of law that when the owner of a whole tenement divides the same and conveys a portion, the parties contract with reference to the visible physical condition of the property at the time, is not applicable to a case where there is proof of actual knowledge on the part of the contracting parties of facts which negative any deduction to be drawn from the apparent condition, but they are presumed to have contracted with reference to its condition as it was known to be by the parties, not as it would appear to a stranger, and that in this case the deed to S. related back to the date of the contract of sale, and was not a contracting between the parties in reference to the condition of the property at the date of the deed; that the right to the use of the reservoir and flume did not pass as an incident or appurtenance to the premises so conveyed, and that by the abandoment of the use of "the old mill" the rights of water and flowage reverted, and H. and his grantee had the right to fill the reservoir and take up the flume. Opinion by Folger, J. Simmons et al. v. Cloonan et al.

COMMON CARRIER.

Plaintiffs were copartners in business. On the 9th day of December, 1867, shipped by the defendant from Le Roy, Genesee county, to their consignees in New York, seventy-eight dressed pigs, weighing 9,182 pounds, the property of plaintiffs, which, in the ordinary and usual course of transportation, should have reached New York in forty-eight hours. Such property was unnecessarily detained by the defendant and did not reach the city of New York until the 26th day of December, 1867. In the mean time the market price had fallen an average of one and one-half cents per pound. This action was brought to recover damages for the neglect to transport the same within a reasonable time; it was tried before a referee, who held that the plaintiffs were not entitled to recover for the decline in market value, and ordered judgment for defendant. Held, that the law implies an agreement upon the part of a common carrier, in the absence of a special contract, to transport merchandise within a reasonable time. If he negligently omits so to do, and the market value of the merchandise falls, the measure of damages is the difference in its value at the time and place it ought to have been delivered and at the time of its actual delivery. Opinion by Peckham, J. Ward et al. v. N. Y. C. R. R. Co.

CONSIGNOR AND CONSIGNEE.

This action was brought by plaintiff, a merchant in New York, to recover the value of a barrel of spirits shellac delivered to defendants, who were common carriers upon the canal, consigned to Newell & Turpin of Rochester. The shellac was sent by a boat of defendants pursuant to the following order: "Send us, via canal, one barrel imitation shellac, such as you sent us last.

"NEWELL & TURPIN, Rochester."

The goods were lost en route. Held, that upon the delivery to the carrier, the title passed absolutely to the consignees, subject only to the right of stoppage in transitu, and that plaintiff, the consignor, could not maintain an action for their loss. Opinion by Peckham, J. Krulder v. Ellison et al.

DIVORCE AND ALIMONY.

In an action for a limited divorce, an order was made and entered on the 8th day of March, 1871, requiring defendant to pay to plaintiff, forthwith, upon service of the order on his attorney, the sum of $1,000, for her expenses in conducting the suit, and the sum of $25 per week as alimony, commencing on the 20th day of October, 1870, the date of issue, up to the date of entry of the order; also that he thereafter pay her $25 a week alimony, until the final determination of the action, and that, within thirty days from the said date of entry, he give her a bond in $5,000 to secure such subsequent payment. The order was served upon defendant's attorney March 9, 1871, and payment of the sums directed to be paid duly demanded of him, and he declined to pay the same. On the 22d day of March, 1871, a certified copy of the order was personally served upon the defendant, at the city of Memphis, Tennessee, and payment of said sums of money duly demanded of him, and he also refused payment. On the 17th day of March, 1871, the defendant, without having complied, or offered to comply, with its terms, served a notice of appeal from said order.

The plaintiff obtained an order requiring defendant or his attorney to show cause why he should not be punished for disobedience of the order directing the payment of alimony, as for a contempt.

The motion was heard at special term, and an order was granted adjudging defendant in contempt, and further ordering that, unless the said defendant, within ten days from the entry of this order and the service of a copy thereof on his attorney, shall in all respects, except as to time, comply with said order of March 8, 1871, and pay $10 costs of this motion, the answer filed and served by him in this action be stricken out, and that this action proceed as if no answer therein had been interposed, etc., and that in the mean time, and until defendant comply with said order, all proceedings be stayed. Defendant allowed the time to elapse without complying, and took an appeal to the general term.

Held, that the orders were made in a special proceeding and affect a substantial right, and, so far as they direct a stay of the proceedings by appeal or otherwise of the appellant to rid himself of the contempt alleged, must be reversed, and if final, are appealable to this court. But that so much of the order as directs the striking out of the answer and the reference, to take proof, etc., is conditional, and the punishment is not inflicted absolutely, but it is in the power of defendant to avert it, it is not, therefore, a final order, and is not appealable. Also held, that the supreme court has

no power to stay the party in contempt in his proceedings by motion or appeal, where the object is to rid himself of the alleged contempt, or show that the order which he did not obey was erroneous. Opinion by Folger, J. Brinkley v. Brinkley.

JUDGMENT.

Plaintiff recovered a judgment in a court of a justice of the peace for $84. The defendant appealed to the county court, under the 371st section of the Code, and stated in his notice of appeal that the judgment ought to have been for $6 instead of $84. Plaintiff served an offer that the judgment be reduced to $50. This offer the defendant did not accept. Held, that in determining whether the judgment in the county court is more favorable to the appellant than the offer of respondent, interest added by a jury or by the court, to the damages, cannot be estimated, and defendant is entitled to costs if the damages, not including the interest, would warrant a judgment more favorable to the defendant by more than $10, than the unaccepted offer of plaintiff. Opinion, per Curiam. Pike v. Johnson.

LIFE INSURANCE.

This action is brought upon an accident policy of insurance issued upon the life of M., who, prior to procuring the policy, had been a canvasser for applications for insurance with defendant. He had been directed by the president to be cautious, as the company Idid not wish to insure insane persons, etc. Prior to the issuing the policy M. had been insane; had been sent to an asylum, and discharged cured, and from that time forward had been sane. He did not disclose the fact of his former insanity upon application for a policy, but stated there were no circumstances rendering him peculiarly liable to accident. By the terms of the policy the sum insured was to be paid, if the insured "shall have sustained personal injury caused by any accident, *** and such injuries shall occasion death," etc. Held, that it was not error in the court to charge, that the conversation with the president had no bearing upon the application, it had no tendency to show a fraudulent concealment of material facts. Also held, that if the deceased did not conceal any facts which in his own mind were material in making the application, the policy was not void. Also held, that the death was accidental, and defendant liable, if a wound received by deceased, being produced by an accident, did not cause death, but did cause him to fall into the water, where he was drowned. The presumption of law is against suicide, where, from the facts of the case, it appears that a violent death was either the result of accidental injuries or of a suicidal act of deceased. Opinion by Grover, J. Mallory v. Travelers' Ins. Co.

Plaintiff some years since brought an action against the defendant in the marine court, in the city of New York. Defendant recovered a verdict in that suit of $86. Without taking the case to the general term of that court, the plaintiff carried it for review to the court of common pleas of that city, and that court reversed the judgment with costs. Defendant paid these costs voluntarily without the entry of any judgment. Within a year thereafter the court of appeals decided, that the court of common pleas had no jurisdiction of a case from the marine

court, until it had been first heard and decided by the general term of that court. The common pleas had previously held the other way, viz., that it had jurisdiction in such case. Some nine years after this reversal in the common pleas, defendant issued an execution in the marine court, and plaintiff instituted this suit in equity to stay his proceedings, and a judgment is obtained for a perpetual stay, on the ground that the judgment in the marine court was erroneous, and that both parties in the review in the common pleas had acted under a mutual mistake of law. Held, that a court of equity cannot grant relief upon the sole ground of a mistake of law. Opinion by Peckham, J. Jacobs v. Morange.

PARTNERSHIP.

A person loaning money upon a promissory note of one member of a copartnership, and upon his individual credit, is not constituted a creditor of the firm by the fact that the money was applied to the payment of the partnership debts. It is only in cases where the name used, and to which credit is given, is that adopted by the firm, and used to designate the partnership, that it is held liable. Opinion by Allen, J. National Bank of Salem v. Thomas.

VENDOR AND VENDEE.

This action was brought by the purchaser against the vendor to recover damages for the non-delivery of 607 bales of cotton, specifically designated. Defendants delivered to the plaintiff 460 bales of the said cotton, the remaining 161 bales were accidently destroyed by fire without fault or negligence of the defendants. Cotton rose in value after the sale, and plaintiff claimed to recover the increase on the 161 bales. Held, that where a contract is made for the sale and delivery of specified articles of personal property, under such circumstances that the title does not vest in the vendee, if the property is destroyed by an accident, without the fault of the vendor, so that delivery becomes impossible, the latter is not liable to the vendee in damages for the non-delivery. Opinion by Church, Ch. J. Dexter v. Norton et al.

WILL.

Susan E. Ackerman made her will, dated February 6, 1867, and died in 1867, leaving five children, one of whom, the plaintiff, Oscar B. Collins, was an adult, and the other four were infants, and the defendants, one of whom, Annie D. McCoy, was the wife of appellant. By her will, Mrs. Ackerman directed her executors to sell one part of her farm at such time and in such way as to such executors should seem to be for the best interest of her estate, as soon after her decease as they could sell the same, and to invest the proceeds thereof at interest, until her youngest child should arrive at the age of twenty-five years. She directed her executors to keep another part of her farm as a homestead for her children until her youngest child should arrive at the age of twenty-five years, and to sell the same as soon thereafter as should seem best for the interest of her estate. The homestead property was sold under a judgment in partition. In an action brought for the construction of said will, it was adjudged that the title to a greater portion of the real estate of which the testatrix died seized, vested in her heirs upon her death, subject to the execution of a power of sale by the executors, and said executors were directed to sell and convey said real estate in pursuance of a contract made