£28,849; 1871-2, £32,000; 1872-3, £28,807; 1873-4, £31,698; 1874-5, £30,954; 1875-6, £26,544; 1876-7, | £30,780 18s. 6d. Now, if it costs so much to ascertain the costs, what must the costs themselves be?

IN

NOTES OF CASES.

1

'N State v. Northup, 13 West. Jurist, 306, the Supreme Court of Iowa decided that on a criminal trial evidence of the good character of the accused is always for the consideration of the jury, and that it is for them to determine its weight without any instructions from the court, and if such evidence creates a reasonable doubt in their minds of the guilt of the accused it is their duty to acquit. It was formerly the rule that evidence of good character was admissible only in capital cases; but the rule is now settled that such evidence is admissible in all criminal cases. 3 Greenl. Ev., § 25. But the authorities are not agreed as to the effect of such evidence, that is whether it should be considered in all cases or only in doubtful cases. In Starkie on Ev. 73, 10th Am. ed., it is said that good character ought never to have any weight, except in doubtful cases, and this opinion is repeated in the note of the learned editor. The same view was expressed in 1 Phillips on Ev. 469. On the other hand, Greenleaf takes the ground that the jury should consider such evidence in every case, and give to it its due weight. 3 Greenl. on Ev., § 25; and this view accords with that expressed in 2 Russ. on Crimes, 785-786. Bishop's Criminal Procedure, § 488, and Bennett and Heard's Notes to 2 Leading Criminal Cases, 351. Neither Roscoe nor Wharton has given his individual views, but they have apparently adopted those expressed by Sir William Russell. Roscoe's Crim. Ev. 76; American Crim. Law, §§ 643-644. The leading adjudicated case, in favor of the rule that such evidence cannot avail the defendant, except in a doubtful case, is the Commonwealth v. Webster, 5 Cush. 295. See, also, as being in accord therewith, The State v. Wells, 1 Coxe, 424; United States v. Roudenbush, Baldwin, 514; The People v. Hammel, 2 Parker, 223; The People v. Cole, 4 id. 35; United States v. Smith, 2 Bond, 323. In Stephens v. The People, 4 Parker, 396, and Lowenberg v. The People, 5 id. 414, the jury was instructed that good character might raise the doubt entitling the persons to an acquittal, and the weight to be given thereto was for the jury in each case. The defendants having been found guilty in each case, no point was raised, as we understand, in the appellate court as to the validity of the instructions. The doctrine announced in the Webster case has been disapproved and condemned in Cancemi v. The People, 16 N. Y. 501; The People v. Ashe, 44 Cal. 288; The People v. Garbett, 17 Mich. 9; Harmington v. The State, 19 Ohio St. 264. The rule of these cases is sustained by The State v. Henry, 5 Jones (N. C.), 665; Jupety v. The People, 34 Ill. 516; The State v. McMurphey, 52 Mo. 251; United States v. Whitaker, 6 McLean, 342; Commonwealth v. Casey, 3 Brewster, 414; Epps

v. The State, 19 Ga. 102; Filed v. The State, 18 Ala. 720; Carson v. The State, 50 id. 134; Ryan v. The People, 18 Abb. Pr. 232.

In State v. Pennsylvania R. R. Co., 2 N. J. Law Jour. 207, the Supreme Court of New Jersey held that a writ of mandamus directed to a railroad company ordering it to construct a bridge was not properly served by delivering it to a division superintendent, but that it ought to have been served on an officer or director of the company; also that the original writ of mandamus, and not a copy, ought to be left with the person on whom the writ was served; although the service by leaving a copy would not be set aside. And, further, that the statute providing for the service of process on corporations did not apply to a case of mandamus or other prerogative writ enforceable by attachment. The reason for requiring the original writ to be left with the person served is that a return may be made to it. The rule has been adopted in several cases that the court will refuse to set aside the service because of the failure to leave the original with the person to whom it is directed, if a correct copy is delivered. A return may be made to a copy as well as to the original, and in the absence of a statutory prescription of the mode of service, the court will not permit its process to be evaded or disregarded on mere technical grounds. Reg. v. Birmingham and Oxford R. R. Co., 1 E. & B. 292; People v. The Judges, 1 Johns. 64; People v. The Judges, 4 Cow. 73; Endicott v. Matthews, 1 Stockt. 110; State v. Dwyer, 12 Vroom. The court, if necessary, will permit the original to be taken from the files for the purpose of a return to it. But a failure to serve on the proper person is necessarily fatal. If the duty commanded is incumbent upon a corporation the writ may either be directed to the corporation or to the select body within the corporation, whose province and duty it is to perform the particular act, or to put the necessary machinery in motion to secure its performance, for it is not in the powers of others to put the command of the writ in execution. High on Ex. Rem., § 442; Tapping on Mandamus, 409; The Mayor v. Lord, 9 Wall. 409; People v. The Common Council, 3 Keyes, 81. The return must be made by those to whom the writ was directed. Com. Dig. Mandamus, D.; Tapping on Mandamus, 341. If it be made by any other person without the privity or consent of those to whom the writ is directed, an action on the case lies against him who makes such return, and it is also an offense punishable by the court by attachment. Bacon's Abr., Mandamus, G. The only means in the power of the court to compel a return to the writ or obedience to its commands is by attachment, and an attachment will only go against such persons as have been served with the writ. The Queen v. Ledgard, 1.Q. B. 616. To make the writ at all efficacious it must, therefore, be served upon the officers of the corporation who have the power and whose duty it is to execute it, and against whom an attachment to enforce obedience may issue. Dillon on Corp., §§ 701–704.

that the bridge is to be constructed in the manner above indicated, and that the expense thereof shall be defrayed by the two cities, and I find it further declared, that for such purpose they may be called on for yearly payments, but that the whole amount shall not exceed $8,000,000, I am unable to repel the conviction that the Legislature meant that the two cities should carry out such purpose' by the expenditure of not more than that sum; and that the amount named is a limit upon such purpose,' as well as upon the liability of the two cities to pay for such purpose.' I think that the language of the act, in its restrictive words, applies to all that goes before them in the section in which they occur, and that expense of construction,' etc., is as well limited by them as the amount to be paid by the

impossible, the Legislature should refuse to complete the bridge? How could the unnecessary expenditure of $1,000,000 be justified? It would seem a sounder exercise of discretion to suspend the work until the Legislature should manifest their intention. The position of the minority seems the stronger upon principles of construction and of pol- . icy, and we should have voted to let those towers settle until the question could be settled by the Legislature,

"THE CLOWN OF THE LAW."

The purpose is to construct the bridge; for that purpose the two cities may pay a fixed sum, and no more. As no one else may pay, how is more to be paid; and if no more can be paid, how can the work cost more? It cannot cost more, until the Legislature is again applied to and again gives power to raise and expend money."

Judge Folger meets the argument that the Legislature contemplated a finished and not an unfinished bridge, with the answer that even if so, it contemplated a bridge finished within the limited sum. He also argues, from a review of the legislation concerning the bridge, that it was the legislative intention to limit the cost. He characterizes the work as a local municipal enterprise, distinguishable from a purely public work, in respect to which a different intention might be inferred. He concludes that at any rate it is proper for a court to decline to issue its discretionary writ of mandamus to compel that which is, to say the least, of doubtful expediency.

The dissenting opinion is an excellent example of judicial reasoning, and seems to us to commend itself to the legal sense. In our view it would be difficult more strongly to express the intention to limit the cost. If such was not the intention what was the office of the proviso? The relator says it was a sort of conditional proviso, intended to limit the amount to be paid unless the work should cost more! Judge Earl says it was designed not to limit the cost but the amount which the two cities were

to be called upon to pay. But as no one but the two cities was to pay, were not the cost and the amount to be paid synonymous? Ordinarily they would be so, and the inference that they are is strengthened by the omission to provide for the event of a deficiency or in the most distant way to hint at such an event. Now when the Legislature have warranted municipal expenditure for a certain purpose to a specified amount, and provided that it shall not exceed that amount, it is dangerous to assume that they must have intended to warrant a larger expenditure in case the amount provided fails to accomplish the purpose. Such forecast of legislative intention and such discounting of legislative action are unprecedented. The magnitude, difficulty, and tediousness of the work, and the impracticability of foretelling its cost, seem to us slender reasons for disregarding the plain injunction, "thus far and no further." Suppose, as is by no means

terized the jury as "the clown of the law." It is constantly, he says, "inventing new and ingenious tricks for the evasion of duty." Accordingly, he proposes to do away with the jury, and to erect in its place a tribunal of "three or five judges, by a majority of whom questions of fact as well as of law are to be decided."

We perceive that he hails from Rochester, and we presume that he speaks from experience. If he should happen to be wrong as to his facts, we shall turn him over to those of his peers who compose the jury list of the county of Monroe to correct him, or otherwise deal with him, as they shall think proper; pausing only, for our own part, to say that down in this section of the State our juries are not of that kind.

But our immediate objection is to the substitute which Brother Hopkins offers. That tribunal of "three or five judges, by a majority of whom questions of fact as well as of law are to be decided," does not entirely satisfy our cravings.

We trust we are not unduly sensible of the infirmities of human nature; nor do we object to vieing, if necessary, with some of our brethren of the bar in the esteem and reverence we feel for the occupants of the bench. On some questions of law the judges are very apt to be right; on others they set one another right after awhile, although it takes a course of years and costs something to do it. On the whole they are a very useful body of men-as expounders of the law, which, by the way, is now so hedged in by statutes and precedents, that our judges can decide about right-on a question of law-pretty nearly every time, if they will only read and study enough, and not bother themselves too much about the "facts" or the parties in the litigation, a performance sometimes designated as deciding according to the "equities" of the case.

But we object to having any man elected over us to decide "facts" for us for a term of years. We object to a board of three or five such men. "Facts" have proved the ruin and overthrow of more judges than were ever slaughtered by hard work or ill-ventilated court rooms. Lord Bacon was great enough so long as he confined himself to expounding the law. It was not until he succumbed to the temptations which beset him in the shape of facts" that he became the "meanest of mankind." Jeffries was a good judge till he discovered that the necessities of his king required him to differ with his juries in their views of the facts of certain cases he tried. Nobody ever accused the late lamented Barnard of ignorance of the law; and but for the extreme interest he took in the "facts" of certain important litigations before. him, he might have been alive and administering the law to-day. And finally, even so august a tribunal as the late Electoral Commission found the evidence before it arrayed exactly in the ratio of its own political proclivities! The character of that tribunal is thought by some to have gone utterly to pieces on a question of fact; while the reputation even of the Supreme

Court has not been improved by the severe and unusual strain put upon some of its members on that occasion.

The contributor from Rochester now proposes to subject all of our judges to the same kind of strain. We respectfully object. We would keep the bench as high as possible, in an atmosphere of pure law and out of reach of those influences unconscious, some of them which emanate from too intimate an acquaintance with the parties or the "facts" of a controversy, their bearings and their results. Possibly it was some such crude notion as this of ours that gave origin to the mythological bandage over the eyes of Justice. At all events we rather fancy the old conceit.

Law, like art, is long and somewhat fixed; while "facts are fleeting, not to say "mixed." Law is more or less permanent · not so permanent, of course, as we hope it will be when our Legislature can content itself with biennial sittings, but sufficiently so to be worth studying and mastering as a science. "Facts," in the sense in which our Rochester contributor uses that word, are as evanescent and protean as the permutations of human infirmity. We wish a jury could be allowed in every case to determine the facts, so that the court should have absolutely nothing to do but to apply to them as determined the law as it is laid down. Even then the judges would be busy enough.

Now, without "appealing to the past" for arguments in support of trial by jury-an appeal which the member from Rochester cautions us " will not answer" - we respectfully submit the following further considerations, drawn from strictly modern experience:

1. The jury gives a prompt decision. It is a notorious fact that judges who take causes home for decision rarely bring them back until an interval of weeks or even months has cooled the controversy and perhaps robbed it of its fruits. The Legislature has found this out, for it has enacted (Code, § 1010) that a judge must decide a cause within twenty days after its final submission; but as it has omitted to provide any adequate remedy for his neglect to do so, we presume it was only intended as an expression of the legislative opinion upon a question of judicial propriety. In the justices' courts we fare better; but in the courts of record we are absolutely helpless. To waive or be denied a jury is simply to begin a journey the end of which no man can discern. Every lawyer in active practice can point to half a dozen or more cases in his own office in which he and his clients are awaiting decision, and have been awaiting it (who knows with what sleepless anxiety?), for weary weeks or months, while the papers submitted lie gathering dust in the judge's desk. The latter may not always be off junketing for his health; he may be a faithful and overworked officer, who is forced to discharge for the present the more immediate duties of the Circuit or Chambers, and is waiting for the leisure of a quiet day in which to read over again the conflicting testimony before deciding what seems to his conscientious mind a close and perplexing question of fact.

The evil lies sometimes in the judge, but always in the system. If every case were tried before a jury and all questions of fact eliminated on the spot, no judge could ask a long delay for the consideration of the points submitted by counsel. Our judges are supposed to know something before mounting the bench, and very few of them, we apprehend, would desire inordinate lengths of time in which to decide mere questions of law.

2. These remarks apply of course to equity causes and all other proceedings, as well as to actions at law; and to this extent we go with Brother Hopkins. "Why should not the surrogate," he asks, "be assisted by twelve good men and true?" Yea, verily, why not? The numerous auditors and referees who now "assist"

that officer might find some fault, but to our mind the heirs or devisees would soon become reconciled to the change; while it is just possible that certain estates which have long fed the lawyers with fees and the weeping relatives with hope-deferred, might suddenly be "yanked" out of chancery, to the great comfort of the latter. In that case certainly the jury would save expense, as well as time, and thus refute directly one assertion of our Rochester contributor. On principle it would be difficult to find a solitary reason for the trial of so-called equity causes without juries. Take the ordinary case of a creditor's bill to set aside an alleged fraudulent transfer of property. Usually the judgment debtor, his grantee, and his creditor are directly at loggerheads, if not in their testimony, at least in their inferences as to the character of the "intent" or consideration of the transfer. If the question were one of contributory negligence in an action for damages, no court would presume to invade the province of the jury in determining it. But because the form of relief desired is not strictly in the nature of damages, the controversy is deemed to lie beyond the scope of twelve ordinary minds!

3. Another advantage of juries over judges for the trial of questions of fact, is that-in large cities at least they do not usually know either the parties or their counsel. Something near to strict impartiality may, therefore, occasionally be attained. Every young lawyer has felt this when called upon to cope with some older antagonist long entrenched in the confidence and esteem of the court, their friendship cemented perhaps by social or family or political ties. Such influences as these are the most dangerous because the most subtle and the most penetrating. The best of judges are affected by them without knowing it. The Rochester writer takes a lower view of human nature than is necessary. He thinks "most men are bad." We are of the opinion that most men are good, if temptation can only be kept out of their way. He would multiply the temptations that surround the bench. We would reduce them to their lowest terms. He says that a juror can be "bought for a few dollars," while a judge "at least sells himself dearly." On this point, as a question of fact, we must again commend him to the mercies of the citizens of Rochester, but as for Southern New York we dispute his premise. We do not believe that either our judges or our jurors are "for sale; " but we do believe that the latter are a great protection to the former. As for buying a juror for a "few dollars," we believe the purchaser would meet with difficulties in that enterprise. First, he would find here a panel so large that he would have to buy nearly every man on it in order to make sure that the "right sort of men" would be drawn on the particular jury to try his case. Next, if he omitted this precaution and waited until his jury were actually impanelled and sworn, the chances are ten to one that he could never communicate with one of them until after the verdict. If by stretch of good luck he should secure his man, he would discover that, what with the expense of opening up the avenues of approach to him, and the high prices New Yorkers are apt to set on things generally, his hazardous experiment has cost him a good deal more than a "few dollars." And finally, the guilty juror would find eleven other jurors watching him, and that the utmost power of his venality lay in securing a disagreement. The final result would be only postponed. On the other hand, before a jury of twelve impartial men, as the ordinary jury is, strangers to the parties not only, but to the counsel and witnesses as well, something near the truth is very likely to be, and in practice usually, is ascertained. It is a tribunal that "levels

acquaintance and common sense.

In the country circuits of course this is not so largely true, but it is relatively as true; for there the intimacy and acquaintance between the bench and the bar, and even between the bench and the clientage is usually much greater than in the cities.

But neither in city nor in country do we intimate or believe that our judges sell themselves, whether "dearly" or otherwise. What they occasionally do, and what they are in constant danger of doing, is to give themselves away-to their friends and that usually without knowing it or intending to do so. It is sufficient proof of the soundness of the foregoing position that no upright judge who loves the good opinion of his fellow men, ever tries a question of fact without reluctance. A jury is a grateful relief to him. To force a judge for fourteen years to decide all questions of fact between his neighbors, such as are now determined by juries, would be to raise about his ears a hornet's nest that would make his life a burden to him. To divide this responsibility among three or five judges would be but palliating the miseries of each. The essential beauty of the jury system is that the jury is an ever-changing body; the same twelve are seldom twice together; the responsibility for a verdict is not only divided among all, but is limited to the particular case on trial. The game being played, the pack is shuffled, and we have a new deal. In no other way can absolute independence and purity be preserved. 4. We have learned in this country that it is well to divide power instead of concentrating it.

The ravages of place and power upon character are insidious.

Few men can enjoy them and yet preserve their

sweetness of temper. Too great power, or power of any kind without checks and limitations, invariably becomes tyrannical, supercilious and mischievous. Even were our juries such dolts as friend Hopkins deems them, we should still be in favor of compelling our judges to share with them the power of deciding causes. Still another good effect of this division of power consists in teaching a certain class of lawyers to repress the fawning sycophancy with which they would otherwise beslaver the bench. Judges in all ages have learned to endure a deal of that sort of thing; but juries are apt to "sit down" on it hard. Thus juries indirectly educate the manliness of the bar.

The encroachments of the bench upon the prerogatives of the jury would form a sufficient subject for a separate article. It is sufficient here to call attention to the fact already alarmingly common, that a vigorous judge can and often does practically direct and control the verdict of a jury by his remarks and expressions. There is in such cases no remedy for the injured party, unless the judge has actually been betrayed into some positive instruction to the jury which the appellate court will deem bad law. His opinions and intimations, although equally operative to work mischief, are not deemed legally mischievous.

The only remedy lies in an extension and re-invigoration of the jury system, and a prohibition against judges from expressing any opinion whatever in the hearing of a jury upon the facts or merits of a cause.

And this brings us to the last point we deem it necessary to meet in the Rochester indictment of the American jury. We deny point blank that it is the "clown of the law." We deny the right of any person to sneer at it or satirize or lampoon or caricature it. On the other hand, we don't revere it as an ancient institution of our forefathers, nor do we drop into verse over it as the "palladium of our liberties." In fact we are generally particular what sort of men get into any jury of ours. But for downright common sense, unsophisticated by too much learning, and for that sort of shrewdness which discerns the truth hidden in the bowels of a complicated dispute, com

mend us to a jury of twelve plain men of affairs. It is typical of our democratic institutions, typical and also part and parcel of that larger jury before which every man is being constantly tried for all of his acts, and he may as well bring himself to it first as last. They will judge him in the end any how. He may humbug a tribunal of "three or five judges" for awhile into a false opinion of him, but it is the jury of his peers who in the last analysis will make or mar him. They will do it out of court, if not allowed to do it in court; and he had better have it done in an orderly manner and according to law whenever an occasion arises. It may enable him to see himself as others see him. There is no use in laughing at the jury. They are a fair sample of the community at large; and as a consequence of the general diffusion of intelligence nowadays they are constantly becoming better. Nor is any thing gained by deriding those lawyers who are supposed to know how to talk to juries and to persuade them. Our experience is that those fellows have good cases generally and deserve to win. We advise brother Hopkins the next time he has a real good case to take it before a jury. Unless he tries their patience with too many waves of talk," we predict he will win. Of course, if his case is desperate, he had better waive a jury and cultivate the judges, or, better still, see if he can't get a referee appointed. EDWARD P. WILDER.

NEW YORK, July 7, 1879.

POETICAL REPORTING.

IT is a good thing to be a poet; to have the divine afflatus. And it is not a bad thing for a lawyer, or at least, a law reporter, to be a poet. To illustrate our meaning we refer to State v. Lewis, 19 Kans. 260; S. C., 27 Am. Rep. 113, the syllabus of which is as follows:

Where one, being imprisoned and awaiting trial on a criminal charge, escapes, and being re-arrested is tried and acquitted of such charge, he cannot maintain such acquittal in bar of an information for such escape, under a statute providing for the punishment of any person escaping "before conviction."

Now, Mr. Eugene F. Ware, a lawyer, of Fort Scott, was so inspired by the case that he burst forth into song about it as follows; and any one can see how superior the poetical is to the prose report:

IN THE SUPREME COURT, STATE OF KANSAS. GEORGE LEWIS, appellant, ads. THE STATE OF KANSAS, appellee.

[Appeal from Atchison county.]

SYLLABUS:

Law-Paw; Guilt-Wilt. When upon thy frame the law-places its majestic paw-though in innocence, or guilt-thou art then required to wilt.

Statement of Case, by Reporter:

This defendant, while at large,
Was arrested on a charge

Of burglarious intent,
And direct to jail he went.
But he somehow felt misused,
And through prison walls he oozed,
Aud in some unheard-of shape
He effected,his escape.

Mark you, now: Again the law
On defendant placed its paw,
Like a hand of iron mail,
And resocked him into jail-
Which said jail, while so corraled,
He by sockage-tenure held.
Then the court met, and they tried
LEWIS up and down each side,
On the good old-fashioned plan;
But the jury cleared the man.