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to do on the spot, without being inclined, by his accuracy of statement and luminousness of view, 10 despise the judges whose eyes had been open all the while. I never heard this able, kind, and honest man mentioned by anybody but with respect and affection.”
Here is an account of a very different judicial character, who flourished somewhat earlier :
“ Bacon advises judges to draw their law 'out of your books, not out of your brain.' Hermand generally did neither. He was very apt to say, * My Laards, I feel my law — here, my Laards,' striking his heari. Hence he sometimes made liitle ceremony in disdaining the authority of an Act of Parliament, when he and it happened to differ. He once got rid of one which Lord Meadowbank (the first), whom he did not particularly like, was for enforcing, because ihe legislature had made it law, by saying, in his snorting, contemptuous way, and with an emphasis on every syllable,
-. But then we're told that there's a siatute against all this. A statute! What's a statule? Words! Mere words! And am I to be tied down by words ? No, my Laards; I go by the law of right reason.' Lord Holland noticed ihis in the House of Peers as a strange speech for a judge. Lord Gilles could not resist the pleasure of reading Holland's remark to Hermand, who was generally 100 impetuous to remember his own words. He entirely agreed with Lord Holland, and was indignant at the court suffering from the rashness of fools.' • Well, my Lord, but who could Lord Holland be alluding to?' •Alluding 10? who can it be but that creature Meadowbank?'
“ In giving his opinion on the validity of a qualification 10 vote for a member of Parliament, after it had been sustained both here and in the House of Lords, he declared that, nevertheless, it was not only bad, but so bad that · I defy omnipotence to make it good.' Then,' said the quiet philosophic Play fair, it must be very bad indeed ; for his Lordship assured me, in a conversation about Professor Leslie's case, that he had no difficulty at all in conceiving God to make a world where twice three was not six.
Here is part of the opinion of this worthy judge in a criminal case :
“ We are told that there was no malice, and that the prisoner must have been in liquor. In liquor! Why, he was drunk! And yet he murdered the very man who had been drinking with him! They had been carousing the whole night; and yet he stabbed him! afier drinking a whole botile of rum with him! Good God, my Laards, if he will do this when he's drunk, what will he not do when he's sober?"
Our author makes a quotation from a curious pamphlet by Boswell, published in 1780 :
• The Lords of Justiciary should not contract their travelling equipage into that of a couple of private gentlemen on a jaunt of pleasure, but should remember that it is the train of a court composed of different members. Formerly every one of the judges had his led horse – his sumpter, in the procession. The disuse of that piece of pageantry may be forgiven, though noi applauded. But the abolishing of a covered wagon for the baggage of the circuit, though a paltry saving, is a great grievance. How shall the official clothes of the trumpeiers ; nay, how shall the record of the court, and the essential papers, be carried? Not to mention the gowns and clothes of others who ought to be decently dressed. Without it, there must be such shifts and such pinching as is to be found only in a
company of strolling players. Shall the mace, the badge of authority, be crammed into the boot of a coach, amongst black-ball, shoe-brishes, and curry-combs? The trumpeters be forced to ride in their official cluihes, and look shabby? The embroidered G. R. upon the breast of their coats be turned out to the rain and the tempest as pour Lear was turned out by his own daughters? The record of the Court, the indictments, the criminal letters, precognitions, etc., must be at the mercy of the weather. The four pleas of the Crown may be blown about by the four winds of heaven.”
" Another Edinburgh character, of a different sort, ceased in 1819 to be gazed at by men. This was Adam Rolland, advocate; sometimes said to have sat to Scoti for his picture of Pleydell; a worthy, but fantastic personage. His professional practice had been very extensive, but only as a consulting and a writing counsel ; for he never spoke, nor honored the public by doing anything in its presence. Divested of buckram, he was a learned and sound lawyer, and a good man, much respected by his few friends. But there are many men to whom the buckram is everything, and he was one of them. It was by his outside that he was known to the world. He was old at last ; but his youth was marked by the same external absurdity that adhered to him through life, and I presume followed him into his coffin.
" His dresses, which were changed at least twice every day, were always of the same old beau cut; the vicissitudes of fashion being contemptible in the sight of a person who had made up his own mind as 10 the perfection of a gentleman's outward covering. The favorite hues were black and mulberry: the stuffs velvet, fine kerseymere, and satin. When all got up, no artificial rose could be brighier, or suiffer. He was like one of the creatures come to life again in a collection of dried butterflies. I think I see him. There he moves, a few yards backwards and forwards in front of his house in Queen-street; crisp in his mulberry-colored kersey mere coat, single-breasted ; a waistcoat of the same, with large old-fashioned pockets ; black salin breeches, with blue steel buitons; bright morocco shoes, with silver or blue steel buckles; white or quaker gray silk stockings; a copious frill and ruffles; a dark brown, gold-headed slim cane, or a slender green silk umbrella : everything pure and uncreased. The countenance befitted the garl); for the blue eyes were nearly motionless, and the cheeks, especially when slighily touched by vermilion, as clear and as ruddy as a wax doll's; and they were neatly flanked by two delicately pomatumed and powdered side curls, from behind which ihere flowed, or rather stuck out, a thin pigtail in a shining black ribbon. And there he moves, slowly and nicely, picking his steps as if a stain would kill hin, and looking timidly, but somewhat slyly, from side to side, as if conscious that he was an object, and smiling in self-satisfaction. The whole figure and manner suggested the idea of a costly brittle toy, new out of its box. It trembled in company, and shuddered at the viciniiy of a petticoat. But when well set, as I often saw him, with not above two or three old friends, he could be correctly merry, and had no objection whatever to a quiet buttle of good claret. But a stranger, or a word out of joint, made him dunib and wretched."
Notices of New Publications.
BRADFORD's Reports. Reports of Cases argued and determined in the
Surrogate's Court of the County of New York. By ALEXANDER H. BRADFORD, LL. D., Surrogate. Vol. III. New York: John H. Voorhies. 1856.
Of the numerous courts throughout the United States, which have the important original jurisdiction of the probate of wills and settlement of estates of persons deceased, whether these courts be called by the name of Surrogate's, Register's or Probate, that of New York is the only one, so far as we are aware, whose decisions are reported. We are glad of the exception, for there are many interesting decisions given to us in the volume above cited and its predecessors. We will mention a few of those in the volume now before us.
Vernam v. Spencer, p. 16. A testator had caused a codici) to his will to be drawn up, and had requested the witnesses to attend its execution and attest it ; after signing his name at the front, he died in the act of signing in the margin, the latter signature not being necessary by statuie. It was held that the testamentary act was not complete, and could not be made so by the signing of the witnesses after the death of the testator, for the witnesses must sign under an existing request, which cannot continue after deaih.
Leaycraft v. Simons, p. 35. A father had made a will which especially favored his son, and wishing to change it, by enlarging his daughter's share, was prevented by the neglect of his son to comply with his request, to bring him the will. Held, that the will must be pronounced for.
Taylor v. Taylor, p. 51. Contracts outstanding at the testator's death, for the improveinent of real estate by the erection of tenements, are a charge on ihe personal estate.
Vaughan v. Burford, p. 78. The will was thus: “ New York, September 15, 1851. John Burford has $ 230 in the Manhatian Savings Bink, Broadway. I do bequeath $ 230 to Sarah Burford at my death." This paper was drawn up at the decedent's request, in a separate room, and signed by the witnesses, then read aloud to the decedent in the presence of the witnesses and including their names, it was then signed by the decedent. Held, a valid execution. (The Statute of New York does not require the witnesses to rise in the testator's presence )
McPherson v. Clark, p. 92. A testator afier executing his will, wished to revoke certain gifts 10 a daughter, and struck his pen through the clause relating to her, he also changed the residuary clause by striking out my children" and substituting * my two sons." The will was not republished. Held, that alihough the gift to the daughter might be revoked by striking out the clauses containing them, yet a devise over could not be made, without re execution of the will, and, therefore, the entire intent not being properly carried out, the whole failed and the devise 10 the daughter must stand. In the important and elaborate judgment in Hunt v. Martine, p. 322, the learned Surrogate decides a question which appears to be new in our jurisprudence. His opinion is that a will, made according to the forms established in the law of the testator's domicil, is valid, as a will of personalty, although the testator should afterwards
change his domicil to a place where different forms are required, and should there die, having executed no disposition according to these latier forms. This opinion agrees with those of the most distinguished foreign jurists, who are better authority upon the conflict of laws than the Eng. lish judges, and we have no doubt of its correctness. We commend the case itself to the perusal of our readers.
There are many other interesting cases reported in this volume, and the more interesting, from the circumstance that the Surrogate being judge of fact as well as law, in the cases brought before bim. We have a much fuller statement of facts than is found in the works of the common law, and facis, too, touching the most important of human relations. It is well known that the reporis of the adıniralty and consistory courts are, for this reason, the pleasantest law reading in the world. But we have not space to notice those cases furiher.
In conclusion, we feel bound to say that while the decisions of the learned Surrogate are very well reasoned, learned and able, they ar
are occasionally injured in the reading by an occasional inaccuracy of style, which to ihose who believe, with us, that sound thoughts in sound language is an essential motto for authors, even of law books, is painful. In the artistic part of the book, if we may so call it, there is a want of care, which is more important The cases do not begin with a condensed statement of the facts. This is very well when the opinion of the judge gives (as these do very fully as we have said) the circumstances, provided there be no report of arguments; but where the arguments of counsel are given, the true mode is to give the facts first, then the argume ts, and to avoid repetition by condensing somewhat, if necessary, ihe opinion of the court. Our readers are well aware that we like to see the arguments of counsel reported, when able and learned, but we think the learned author has, in this volume, given counsel somewhat more room than is necessary, and with a luule mure labor, might have condensed some of their remarks. He has erred, however, on ihe safe side. On the whole, the book is very interesting and useful, and we hope the learned author will be encouraged 10 continue the series.
Maine REPORTS. Vol. 38. (Heath. Vol. 3.)
This is a more interesting volume of the Maine Reports than any of the series that we remember to have examined for some time past. In fact, Maine law (excepting her famous liquor law) has been rather at a discuunt for several years. As compared with the days when Mr. Greenleaf left off reporting, or even so lately as when Mr. Appleton, now of the Supreme bench, filled the office of reporter, we think there can be no doubt that the later decisions of the Supreme Court of that State have declined in weight and authority with the profession. Whether this is Jargely owing to the fault of the reporters in spreading before the protession unimportant matter, with unnec-ssary prolixity. — which we wiil not undertake to say, because we suppose imey are bound to publish every case argued and decided, whether goud, bad, or indifferent, -- or to the lack of ability and industry on the pari of the judges, - which also we cannot affirm, considering the exient and variety of their duties, and the wellearned reputation which some of them have enjoyed, - or to what other cause or combination of causes, we leave to those better informed to decide.
The present volume, we are glad to say, revives some of our old interest in the Maine cases. Not perhaps so much from any improvement in the
style of reporting, as we may take occasion hereafter somewhat to illustrate, as from the springing up of interesting matter of decision, and from awakened ambition, as we lancy, on the pari of some if not all the meinbers of the bench to give emphasis and significance to their opinions.
We think our readers will be obliged to us for a hasty notice of sume of the points which have of late been agitated in that jurisdiction.
Williams v. Morlo1, p. 47, is to the point, that a guardian's sale of real estate under license from the Probate Court, will convey no title, it ihere is an omission of the guardian to furnish the statute bond. The case is an affirmance of Williams v. Reed, 5 Pick. 480, and is worthy ihe attention of all Massachusetts practitioners, perhaps of those in nearly all the other New England States.
Parsons v. Huff, p. 137, is a somewhat sharp decision on rejecting a deposition, where the certificate of the magistrale set forth ihat ihe deponent before testilying was sworn 6-10 testify ihe iruth, the whole truth, and nothing but the iruth ; " without adding, in the words of the statute, “ relating to the cause or matter for which the deposition is taken ;” and where this defect was held not 10 be remedied, by the magistrate, adding that “after giving the aforesaid deposition he was duly sworn according to la:v." Mr. Justice Appleton, in giving the opinion of the court, very clearly and forcibly points out that the safeguard of the law of perjury does not apply to an informal oath, and that ihe statute requisition of an oai h bfore commencing ille deposition, cannot be satisfied by a re-administration of an outh wiih proper formalities after the deposition is completed The case is precisely in point to Massachuseils practice ; the words of the Maine statute being substantially the same with those of the Revised Statutes of Massachusetts, ch. 94, $ 20. We apprehend that our own court,
however, would not have come up to the same degree of strictness.
Bucknam v. Thompson, p. 171, contains an important construction of the exception in the Statute of Limitations, now very generally prevailing in the legislation of the Northern States, regarding absence from the State not making up a part of the statute prescription. Thus the language, “ if after any cause of action shall have accrued, the person against whom it shall have accrued, shall be absent froin and reside without the State," means such a residence as amounts to an established residence or home.
In Stale v. Lighthody, p. 200, an indictment was quashed after a prisoner was arraigned, on objection that the renire for the grand jury was not under seal. We presume that all the indiciments of the term fell with it.
In Slate v. Taggarl, p. 298, the court hold that the signature of the foreman of the grand jury by i he initials only of his Christian name is sufficient. The case deserves noting under Mr. Heard's full and valuable note to State v. Freeman, 13 N. H. 488, 1 Benneit & Heard's Leading Criminal Cases, p. 204. The Altorney-General (Hon. George Evans), and the Court (Mr Justice Appleton), have fallen into a curious mistake in this case, in citing from an imperfect report of the Webster irial. Webster's case was cited by the counsel for the government, as an authority that the foreman's name inight as well be attached to an indictment in an abbreviated shape as in full: thus, “ Dan'l Rhoades, foreman ; " and Mr. Evans quotes Dr. Stone's pamphlet edition for authority. Both the Altorney-General and the Court seem to think the precedent one of considerable importance, because, as they say, “ though the indictment in this case was contested by his (Professor Webster's) counsel on every point, no objection was taken that the foreinan's name was abbreviated.” Now, if the learned Court and Attorney-General will take pains to look at the