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them die without issue, that portion to be divided among the survivors."
Held, (affirming the judgment below,) that this proviso governed all the devises and bequests, and that A. P. took an estate tail in the house, &c., devised to her.
Exchequer. June 5 and 7.
AIKEN v. Suort.
Assumpsit — Money paid under mistake. A. borrowed 2001. of the defendant, and gave him a bond and an equitable charge on certain real estate; the plaintiffs purchased A.'s interest in the property, subject to the charge, and on application by the defendant, paid off the charge. It turned out that A.'s title was defective, so that neither his charge, nor his conveyance to the plaintiffs, were good.
Held, the plaintiffs had paid in their own wrong, not being in any manner bound to pay this debt, and could not recover back the 2001.
Bramwell, B., referred to Pritchard v. Hitchcock, 6 Scott, N. R. 351.
June 6. De Wahl v. BRAUVE.
Alien enemy - Husband and wife. An English lady married to a Russian gentleman, but living apart from him and in England, made a contract before the war, in her own namne, with the defendant, and during the war brought an action thereon in her own name. T'he defendant pleaded in abatement the nonjoinder of the husband. The plaintiff replied that the contract was made by her while separate, &c., within the realm, and that her husband was an alien enemy. The defendant demurred.
Held, that the replication only showed a present disqualification and not a civil death of the husband, and that the plaintiff could not maintain her action.
April 28, and May 31. Smitu v. Reynolds.
Insurance — Gambling policy - Profit on goods. Statute 19 Geo. 2, c. 37, § 1, renders void assurances on any British ship or on goods, &c., laden on board of any such ship, “ without further proof of interest than the policy.” Where such a policy was made on profits of goods :
Held, to be substantially a policy on goods, and therefore void.
Queen's Bench. May 30.
ASHURST v. BANK OF AUSTRALIA.
Promissory note - Transfer after maturity - Bankruptcy of indorser before
transfer. The defendants were the assignees of A., a bankrupt, and to an action by B., on a promissory note, indorsed to him by A., pleaded that the note was overdue and A. bankrupt at the time of the transfer.
Held, a good plea.
Rolls' Court. April 22, and May 5.
DRYSDALE v. PIGGOTT.
Debtor and creditor Insurance on debtor's life. A creditor insured his debtor's life, under agreement between them and a surety, that the first year's premium should be added to the debt; and the creditor paid the premiums for several years after the first, and the surety refused to repay him the second premium, and the debtor paid the debt, but did not repay the subsequent premiums, there being no evidence whether or not he had been requested to do so, and died, and the creditor received the insurance:
Held, that the plaintiff, who was the surety and also ad. ministrator of the debtor, could not recover the amount of the insurance from the creditor, for the latter could not be considered the agent of the debtor in keeping alive the policy.
Queen's Bench. June 5.
Marvin v. Wallis.
Statute of Frauds Acceptance and receipt. A bargain for the purchase and sale of a horse was made orally, and the vendor (the plaintiff) then said to the ven
dee, that he wished to make some journeys, and the vendee lent him the horse ; there was never any manual transfer of possession, but the horse remained with the plaintiff about two weeks, when he was sent to the defendant, who refused to receive him.
Held, there had been a sufficient receipt of the goods to satisfy the Statute of Frauds, as the character in which the plaintiff held the horse had changed from that of owner to that of bailee.
Common Bench. May 31.
HARMAN v. REEVE.
Statute of Frauds - Entire contract — Partly within the statute. Where a contract is entire, and the principal part is for the sale of goods above the value of 101.
, and the Statute of Frauds is not complied with, no action can be maintained on the contract.
It seems, that if the part not within the statute had been performed, the party may recover on an implied assumpsit the value of what he has performed.
May 27. GREEN v. Kopke.
Principal and agent -- Liability of agent for foreign principal. An agent for a foreign principal contracted by bought and sold notes for the shipment and delivery of goods by his principal, and signed as agent:
Held, he was not personally responsible.
Queen's Bench. June 9.
EDWARDS V. WAKEFIELD.
Practice — Interrogatories - Plaintiff's title. In an action of trover by assignees of a bankrupt, the defendants cannot file interrogatories to the plaintiffs calling upon them to show “what title they intend to set up to enable themselves to recover," or "what act or acts of bankruptcy they intend to rely upon in support of their title as assignees.
VOL. IX, -NO, IV.NEW SERIES.
OratorY OF THE BAR. - In the volume recently published, containing the lectures of Professor Channing, as prepared by him for the press, but issued since his lamented decease, we find some excellent observations on the eloquence of the bar, from which, while commending the book to all lovers of elegant and judicious criticism, we make some extracts from his remarks on eloquence, as applied to arguments addressed to the court. The author is contending that true eloquence may find a place even in the discussion of questions of law. He says:
“ How is it that lawyers of equal learning and prudence differ so much in the impression they make? Men go from a court of justice, after witnessing a severe contest, and in reporting their opinion of the arguments, they will say that one of the advocates had no fault that they can precisely define, and yet there was a prevailing heaviness or want of impressiveness. He did not take in the case as a whole, which he had at command, but appeared to be forever occupied with separate details. He certainly said eve yıhing that could be said, with the utmost fidelity, and might even have spared much. He was intelligible and unexceptionable, and probably will gain the cause. But you should have heard the other. The moment he rose, in reply, it seemed as if he were commissioned to revive a fatigued audience. In a few words he made his opponent's argument clearer than he himself had done : and then, with the utmost simplicity, directness, and strengih, he stated his own grounds. The hearer was disposed, at first, to pily him for the perplexed and boundless range of argument or examination which he must iravel over in his reply merely. But the field was soon brought within very moderaie limits : easy paths were opened through all that was obstructed, and a warm light sell upon the ground as the clouds were scattered from over it.
“ If such illumination had been poured upon us in a work of elegant literature, we should not have scrupled to ascribe it to the magic of poetry. We should have admired the facility with which a man of genius could bring directly before our eyes a distinct picture of what seemed too vast, or involved, or abstract, for human comprehension. We should not have heard a word about the hostility between the logic of a reasoner and the inspiration of genius.
"And there is no such hostility. I have been describing nothing but the triumph of genuine argumentative eluquence, an eloquence of a high order and influence, but onassisied by a single outbreak of passion. That a great orator of this class has in him the elements that constitute the most impassioned speaker; that he is capable of the highest eloquence in the popular sense of the word, I am well convinced. I have only shown how skilfully he could adapt his discourse to the halls of justice. He had no occasion then for that popular argumentative eloquence which, besides working conviction, is to give a tone to an assembly; which is to instruct the ignorant, kindle the indifferent, convert the prejudiced, conciliate the inimical, and impel the friendly. He needed only the succinct, elastic, transparent eloquence which makes bright the severest and least inspiring truth, and does it justice.
“ any who still think that something is wanting to the orator who is merely addressing the court, we may urge that there is a fountain of eloquence in the very purpose and bearing of every legal argument. A contest upon a simple point of law must involve to some extent the question of
right and wrong; the duty of respecting our neighbor's claims ; the necessity of subordination. It must involve vindication and protection. The judge himself must be eloquent, when he speaks in behalf of public morals, liberty and order. The hearty lover of his profession must be eloquent when he sets forth the harmonious system of the law, its oversight of human affairs for the quieting of disputes, and the kind equality with which it extends security to all. Every cause in which a lawyer is engaged is of more or less importance to every one of us. And if he feels deeply that he is bound to do not only a duty to his client, but also an office in behalf of the public well-being, he will come to every legal discussion as to a contest for right, which the law has provided for, and which he is to bring under its protection. What power of an orator may not go forth to such a battle?"
Caveat. – A. B., Esq., who, as a member of the Suffolk Bar, must be considered as one " learned in the law," lately had occasion to file a caveat. He walked into the clerk's office, and asked for a writ; indorsed on the back of it "Caveat emptor — A. B. ;'' and returned it to the astonished clerk to be filed ; and filed it was, and is still.
STATUTE OF Frauds. - In giving judgment in a recent case, Lord Campbell is reported to have said, “ So long as the St:tute of Frauds continues in force, we must give full effect to it; but I shall rejoice when it is repealed, because, in my opinion, it promotes, instead of preventing, fraud.” His lordship made a similar statement in his place in l'arliament.
LORD COCKBURN, better known in this country by his life of his friend, Lord Jeffrey, than for his learning and social talents, which have given him a high reputation in Scotland, has recently published a book which he calls “ Memorials of his Time," and which contains a great many good anecdutes, especially of law and lawyers of old time, in Scotland. From the American reprint we make some extracts :
“ The Whigs had only one opportunity of making a Scotch judge ; and they made Charles llay, a man famous for law, paunch, whist, claret and worth. His judicial title was Newton, but in private life he was chiefly known as The Mighty. He was a bulky man, with short legs, twinkling eyes, and a large, purple visage ; no speaker, but an excellent legal writer and adviser ; deep and accurate in his law, in which he had had extensive employment."
After describing his habits of drinking :
“ Newton's potations and bulk made him slumberous both in society and in court; and his management of ihis judicial inconvenience was very curious In court his head generally rested either on his heaving chest, or on his hands crossed on the bench, while, after getting a grip of the case, his eyes were locked in genuine sleep. Yet, from practice and a remarkably quick ear and intellect, nobody could say anything worih hear. ing without his instantly raising his huge eyelid, and keeping it open, and directing his powerful knowing eye, like a mortar, at the speaker, till he got what was necessary ; after which, when the babbling began, down sunk the eyelid again, till lighted up by the next shot. The only way to waken him was to say something good, and this never failed. Accordingly no judge ever knew his cases better. Strangers wondered, but they seldom saw hiin rouse himself and deliver his opinion, which he was always ready