CURRENT TOPICS. The fascinations and allurements of the most fashionable and thronged watering place inf America may not be the most conducive to sober, close and assiduous mental toil in the department of jurisprudence; the atmosphere of such a place may not be favorable to the severe and critical trial of a great cause; the libraries and repositories of such a place may consist more of novels, philosophical treatises on art, and poems, than of works on jurisprudence, reports of adjudged cases and records of important documents; the heat of the summer, even in such a place, may not be favorable to the full, free and vigorous exercise of the mental functions of either court or counsel in the hearing and conduct of a great cause; but it is to be hoped that the counsel and the judges in the case of the impeached Judge Barnard, who meet next Wednesday at Saratoga to try the accused for mal and corrupt conduct, while in the office of judge of the supreme court, may be not as other men, may be able to resist all seductive fascinations and overcome all unfavorable influences, of temperature, of place, of environment, and remember how the stalwart and unconquerable soldiers of Hannibal, weakened by the voluptuousness which the citizens of Cannæ induced them to participate in, lost a great battle and were never afterward able to take Rome. ✓ 1 sic The proposed changes in the jury system of England are worthy of a successful enactment there, and, some of them, of an adoption here. One of the most important changes is the reduction in all cases, civil and criminal, except in trials for murder, of the number of jurors from twelve to seven, of whom two shall be special and five common jurors. Unanimity in the verdict is still to be required which is not so good as the majority rule, although this difficulty is diminished with the diminution of the number. There are a number of special juries provided for in the new kill, which proceeds, doubtless, from a growing desire, on the part of the profession, to have before them a more intelligent and specially prepared set of men than is ordinarily drawn from the promiscuous crowd. The jury, de ventre inspiciendo, is properly enough abolished, as it is a well-known fact that medical persons alone are qualified to ascertain the fact of pregnancy. The age of exemption is sixtyfive; members of the profession are exempt, but clergymen are not. If the jury is to be continued, as we suppose it must, let it be conformed, as nearly as possible, to the bench. A curious, and at the same time, eminently benevolent rule of law was laid down recently in the court of queen's bench, England, which illustrates the subserviency to the public interest in which the railways of that country are held by the law in contrast to the antithetical condition of things in this country, where the public interests are held in subserviency by the railway companies. In the case in which the The Stokes trial is progressing rapidly, and a ver- NOTES OF CASES. It is so seldom that an attorney's name is stricken from the roll for dishonorable conduct that adjudications relative to the grounds of expulsion or suspension from the bar are rare. In Dickens' Case, 67 Penn. St. 169 (to appear in 5 Am. Rep.), it was held, that participation by an attorney in making pretended gifts as a means of giving notoriety to an exhibition or show, innocent in itself, is not sufficient ground to authorize his name to be stricken from the roll. With this point in the Case of Dickens we can find no fault; for although such conduct (as Judge Agnew, who delivered the opinion of the court, says) may “lose a member of the bar the favor and countenance of the high-minded men of the profession," yet it "cannot of itself give jurisdiction to the court to take judicial cognizance of it and expel him from office. To admit such a power would expose the members of the bar to the whims, caprice, peculiar views and prejudices of the judges. The office of an attorney is too important to him, to those dependent on his efforts, and to the public, to be thus at the mercy of any one." But although Dickens escaped expulsion on this charge, he was not so fortunate upon another, viz.: that he had conspired to get an opposing attorney drunk in order to gain an advantage in a cause about to come on. This the court held to be sufficient ground for striking Dickens' name from the roll. The judge, upon this part of the case, eloquently and forcibly said: "This was a wicked act, as well as one which struck directly at the due administration of justice. In its effect and criminal purpose it differs none from tampering with a juror, corrupting a witness or bribing a judge. It strikes directly at the interests of the opposite party, with as great force as if he lost his cause from the misconduct of juror, witness or judge. The man who can do this thing is unfit to practice in a court where justice is administered, and should be expelled from its bar, or at least should be suspended from the practice until he has shown, by sincere amendment, that his offense is thoroughly purged. The office of an attorney at law is a highly honorable one, as well as one of great importance to society. The necessities of men, in a state of high civilization, require the profession of the law as a distinct calling; one to be exercised by men trained to it by a long course of study, and qualified by skill and learning to understand, protect and assert the rights of others, who, by reason of the state of society, or their own inability, cannot act for themselves. As property increases and new forms of it are developed, new institutions are created for its management; and as the business of society multiplies, interweaves and expands, and wealth and luxury follow in the train of commerce and the arts, the relations of men become more and more complicated, and render the profession of the lawyer indispensable and important. Integrity, as well as skill and learning, is essential to the charac ter of the profession, and it becomes the duty of the bench, as well as of the bar itself, to preserve that character in its highest state, as a means of usefulness, and of answering the true end of a profession so honorable and at the same time so needful. Notwithstanding the prejudices of some, the ignorance of others, and even the discredit occasionally brought upon the office by unworthy members, we are glad to know that the bar is filled with many worthy men, and that a trust and confidence almost unlimited is justly reposed in it by the public.' For his offense, Dickens was, therefore, expelled from the bar, with leave to make application to the judges of the court for re-admission after six years. We have also to record two other recent cases of expulsion from the bar, happily not in this country, but (if such things needs be) in England. In the matter of John Bennett Ayre, an attorney, 16 S. J. & R. 633, a rule was moved to the queen's bench to strike the attorney off the roll, on the charge that he had personated an articled clerk, at a recent examination of the incorporated law society, for the admission of such clerks. The object of this examination was to obtain fitting persons to occupy a position of very high responsibility. Lush, J., in delivering the opinion of the court, after commenting upon the high character of the attorney, the nature of the offense, and the efforts of counsel to save him from expulsion, gives vent to the following expressions of regret: "It is with great pain-with the greatest pain that we have come to the conclusion that this gentleman cannot be permitted to remain upon the rolls." And the learned judge adds his consolation and inspires hope in the about-to-be-" stricken" one in the following language: "It does not follow that he will be perpetual y excluded. We do not say that he may not apply for re-admission, or that, after a period of future good behavior, the court will not re-instate him, but at present we feel that we have no option but to order that he be struck off the rolls." Not so mild in their judgment were the court in the matter of William Pope, an attorney, 16 S. J. & R. 633, to strike whom from the roll a rule was moved to the court of common pleas. The charge made against Pope was, that he had "allowed an unqualified person named Martin (who was, in fact, a corn chandler), to carry on the business in his name, in London, for a period of two years, and take the profits, paying him a percentage upon them, while the attorney himself was residing in a different part of England." There is an act of parliament against such a course, and the penalty prescribed is that the attorney or solicitor, so permitting an unqualified person to use his name or act as his agent in his business, shall be struck from the rolls, and forever disabled from practicing as an attorney in the future, and the act further imposes a penalty of imprisonment for one year upon the person so acting without qualification. The court said that "these provisions were enacted for the benefit of the public, and to secure them from being preyed upon by ignorant and unprincipled persons." The attorney was therefore struck off the rolls, and the court regretted "it was not in their power to inflict a punishment of imprisonment upon Martin." The American public are not so well protected from "ignorant" and "unprincipled " persons, yet the absence of such a statute is not seriously felt here. EUROPEAN CORRESPONDENCE. LONDON, June 21, 1872. It must not be forgotten that the main concern of this Correspondence is with the young of the Profession, the hope and spring of a fruitful future. For any radical or real advancement of the Bar and thence the Law, in America as elsewhere, the sole procedure is Education. This, like nature, takes up its subjects while they are still young and pliable.. It works by equable gradation, and aspires to high or general ends. Reform proper has but ends that are merely personal, partial, particular, and proceeds to them but by starts that go as often back as forth. It deals moreover with that aborted maturity of the law and the lawyers, when all progression and perfection take their measure from making money. In the preceding Letters we sought to draw attention to the ignorances of the Law that make default of even that low end, and have shown them in the highest departments of the profession and the science. This was requisite to bring out radically the importance of Education. I may now then attempt to sketch your students, young or otherwise, an outline of the mode of operation in this great procedure. I am not nicely aware of what may have been done therein by our own or the other sister States since my day; so that it will be best to keep at present to generalities. But I may safely assume, I fear, that the prevailing mode of doing it, is in this as in most other things, not by method, but by legislation. It is a malady entailed upon you by your English grandmother, the mania of doing all things by will and muscle, not by thought and reason. So I should warn against that ingrained and preposterous illusions, before submitting even in outline my plan of legal education. The logical sequence, or rather antecedence, seems in fact this- your Law can be reformed but through reform of the lawyers, and the lawyers can be themselves reformed but through the means of Education; and education can be instituted and conducted but by method. For education is a process, a thing of habit, structure, system; and not at all of legislation, which deals in principles, acts, prescription. This may say indeed that Education should exist and under what conditions. But how it is to operate, or by what means, or to what ends, a crowd of law-makers are no more competent to dictate than their constituents, and more especially in the case of a learned Profession. They but degrade the institution to the level of their own ignorance, and pass their passions and perversions on the public for serious progress. In short, the part of legislation on Legal education should be as that of land surveying is to the cultivation of the subject soil. Moreover, legislation can have no practical ends. It declares the law of nature generally, or the local limits to the generality. Thence the maxim that the statute law does not comprise its ends-finem legis non cadere sub legem. But the department of legislation is unknown utterly in our jurisprudence along with also that of administration at the other and supreme end. Thence the Private Bills of Parliament and the Lobby-jobbing of your legislatures. Those defects I have already noted, and have promised to elucidate in preparation for my regular Treatise, which engages to supply them. So that in deprecating the pretentions of our legislation to reform the Bar, and thus evincing the necessity of a formal scheme of Education, we may also con jointly reinforce my other positions, as to its absence in our Law and its ignorance in the Profession. But as these views must still be strange to our American brethern of the Bar, it will be requisite, as usual with us, to illustrate by example. And luckily there lies before me a case combining the features mentioned, and which must lately have reverberated to you also, from classic Ireland. I mean classic for anomalies-ferax monstrorum. In England the monstrosities of the Law and Bar are, so to say, at home. They are masked, or really mitigated by the sympathies race, and the compensations naturally incident thereto. The aggregate heap of things is so inert, heavy, humdrum, so devoid of elasticity, though the lowest grade of organization—that absurdity or extravagance may run to riot with little notice, and even be taken for 'working well' to the very verge of a total crash. In America you can already see or jostle with them on the way. But the Celtic Irish, if they cannot see them, like their French and Spanish brethern, can at least feel, and thus expose them by resistance however impotent. There was an instance in the Kelly trial, commented on in my previous letter. But the present which is the trial of the late Galway election for the crime of discomfiting the landlords, and through them England, is still more pregnant with legal errors and with the principles that should prevent them. The judge (Keogh) is one of the most scandalous of those adventurers who, in Ireland, are wrapt by England in wig, ermine, and an ample salary, to play at once the triple part characteristic of her tricky policy, to wit: In the first place, as the coy ducks to the Irish Bar, who should be watch-dogs to the national fold, but with whom the infamy is the highest ambition; then as samples to foreign countries of how the Irish were let rule themselves; but, thirdly, to hold the people individually by the throat, as does officially the judge, whereas the law-maker can reach but classes, and keep the wretches to the ground like sheep, while she is silently fleecing them. This Keogh, being a nominal Catholic, and having himself used the priests, was selected as the person fittest to abuse in turn their popular influence. For there is nothing to cow a people like constantly confronting them with the perfidy and the pomp of the traitors who have deceived them. It undermines all confidence, which is the root of courage. The decision of Judge Keogh was a hustings harangue, like his old speeches. But the principles involved, and which here concern us, are such as follow. First, a statute law annulling Parliamentary elections obtained through the means of bribery, treating or undue influence;' second, that the Galway election was so obtained, and by consequence the popular candidate to be unseated; but, thirdly, the modest judge reserved two questions for the full court, to wit: If the electors of the majority did not all to a man know their candidate to be disqualified, and so disqualify themselves, or destroy their votes, by a legal consequence. And furthermore, if the petitioner and his minority of some one to five were not thus hoisted into the majority by the consequence of a consequence? Before coming to these curious questions, I will say a word upon the points decided. The statute may be right in purpose, and certainly was requisite. But in this case there was no bribery or treating, nor could such be needed. The influence which he ruled as undue' was the basis of the decision. This, however, he was master of by interpreting well entire equity, as the statute left the phrase as loose as the due diligence' of the Washington treaty. I do not speak then of the clumsy statute, of which the letter is not before me, and whose spirit was directly formally against both priesthood and people; nor am I thought to have much learning for clerical dictation. I speak but for the correct principles of jurisprudence and legislation. The clergy, as a general rule, are the national leaders of the people. They have been in fact the guides of their mental or spiritual influence, at once primordially in history, perpetually in the family system, and popularly in the State, by the same analogy of immaturity. They have no interest in deceiving them unless it be for their supposed good; and they have always been the agents when not the inspirers of legislation. Indeed, they hold in the very classification of social government the same fundamental place that legislation does in jurisprudence. Fundamental, however, in the proper sense of being lowest, not highest, save in the primitive stages where the two degrees are still confounded. ness. They were dethroned by the Politicians, who in all those attributes are their antithesis, and under pretext of progress, liberty, pursue but ends of vulgar selfishThis class, too, has its side of use, but outdoes the priests, perhaps, in its excesses; as ought nowhere to be more observable than in your State and the Republic generally. On the continent of Europe the antagonists are better balanced, and thus leave play to the formation of the Class of Statesmen which should sway them both. But in Ireland the priesthood are still the sole protector of which the people have on earth to withstand England and her 'undue influences,' that is to say, the politicians, as well Irish as English. In such a position an upright judge must have found it hard to say where influence proper or spiritual could have become well, undue'; he would rate it by "the emergency and importance of the consequences," as the Americans, according to Lord Cairns, do the 'due diligence.' This judge, however, had no difficulty in both annulling and insulting it. But suppose it to have deserved both, by what magic of law or logic were the vitiated votes to be computed for the adverse side? Even Keogh did not dare to say, without the support of his worthy brethren. Two of these fellow judges of the Irish common pleas (the Chief Justice, Monaghan, alone dissenting) made the improvement upon Keogh's feat, of deciding both points in the affirmative. The respondent or successful candidate was held disqualified from the outset, and before one of the votes was cast which was to prove that status legally; and thus the candidate of the minority was left elected by a majority! It was admitted that the statute had said nothing of the kind. But then this monkey Irish judge had the habitual refuge of the common law, which somewhere says that illegal votes are given as if for a dead man.' Thus the judge assumes his question, or that the votes were here illegal. Besides, the statute was enacted to supply a void in the Common law; and now this judge recurs to the Common law to supply the statute. It is the constant see-saw which excludes all order from English judicature. But lest your readers should think I travesty him, hear the words of this Justice Lawson: "If the sec"tions of the Act defining bribery, treating and undue influence and making them misdemeanors do not disqualify the candidate who is guilty of them from being elected, upon what ground is the judge to unseat him? He cannot unseat a man because he has committed a misdemeanor; and it would therefore follow that the judge cannot unseat him unless he had been already found guilty. This is an absurd consequence,” etc. Yes, verily; but the absurdity is in the form and with the judge. He meant to say, perhaps: "unless the man had been found guilty already," that is to say, before he was elected and seated. But guilty of what, if not of the alleged misdemeanor? and then the judge both could unseat him and yet could not for a misdemeanor. Moreover, he could unseat him before he had the seat, or was at all elected, or had a vote cast for him! For this is really the position for which the judge is fumbling. From his reduction to absurdity by a further absurdity, he in fact proceeds to say so in giving his alternative: "The true construction of the statute," he thinks to be, "that the commission of any of the offenses specified ipso facto disqualifies the candidate from being elected." So the candidate must be unseated, not because he got the seat illegally, but because he had lost the qualifications to get it legally! And these judges had to do officially, not with accomplished and positive facts, but with abstract qualifications, or even their negation! And the legislature, also, was supposed to deal with the same abstractions, and not with their effects in obtaining a seat in parliament! Thus, these judges are crassly ignorant, not merely of the Law they minister, but, too, of the functional conditions at once of ministering and of making it. The entire jumble of these judgments proceeded on the schoolboy fallacy of à dicto secundum quid, ad dictum simpliciter. Here the quiddity is the seat in Parliament, and which completes the illegality, and the fallacy was to mistake it for complete already in the acts that tended to it. Thence in turn the other supplemental monstrosities, as that the voters must have known that their candidate was disqualified; that some two thousand peasants must have each determined a legal question which a court and train of lawyers took after seven weeks in judging! Must have known it better also than the candidate and priests who led them! And so known it, because notified to the extent of a 'few hundreds of them, and by the adverse candidate in whom they rather should have trusted! Nothing, perhaps, of this crude perversity is often heard to fall from the ermined ignoramuses of even the British bench. But these men are in general looked up to in America, and thus suggest what the American brethren can effect for Legal education. I will, therefore, proceed with my sketch of it in the next letter. J. O'CONNELL. DIGEST OF RECENT AMERICAN DECISIONS.* PROMISSORY NOTE. 1. A promissory note, made between citizens of Alabama, for the purchase-money of slaves sold after the date of the emancipation proclamation of the president of the United States, is valid, notwithstanding State ordinances to the contrary. McElvain v. Mudd, 106. * From vol. 4 of the American Reports, and including the latest reported cases of any general interest in the following States: Arkansas, Connecticut, Alabama, Iowa, Maine, Missouri, Michigan, Massachusetts, Illinois, New York. 2. The loan of confederate treasury notes is not a valid consideration for a promissory note made between parties resident of Alabama during the civil war, and without any legal intent. Hale v. Huston, 124. 3. A promissory note, made during the rebellion between citizens of Alabama, in consideration of a loan of confederate treasury notes, is illegal and void; and a note in renewal thereof is likewise invalid. Lawson v. Miller, 147. 4. In an action on a negotiable promissory note, the defense was fraud in its inception, and the judge charged the jury that plaintiff could not recover if he had "notice of such facts and circumstances as would have put a reasonable man upon inquiry," in regard to the faith of the note. Held, erroneous, on the ground that the rule of law requires proof, direct or by circumstances, that a holder for value, who took the note before maturity in the ordinary course of business had actual notice of the fraud, in order to defeat his recovery. Luke v. Reed, 209. 5. A. wrote his name upon a piece of blank paper at the request of B., who afterward, without the knowledge or consent of A., wrote a promissory note over the signature. In an action on the note by an innocent holder, held, that the instrument was a forgery, and that A. was not liable thereon. Caulkins v. Whisler, 236. 6. A person who is induced to sign a promissory note, through the false and fraudulent misrepresentations of another, believing it to be a contract in relation to services, is, nevertheless, liable thereon to a bona fide holder who takes it before maturity. Douglas v. Matting, 238. 7. A promissory note made in New Hampshire, payable, with interest annually, to a payee resident of that State, is to be construed according to the law of that State; and compound interest on such a note is recoverable in an action in Main by an indorsee-that being the law of interest of New Hampshire in such cases provided. Stickney v. Jordan, 251. 8. By the statutes of Maine, a promissory note given by the husband to the wife for money borrowed of her, is valid; and a divorse, a vinculo, removes any disability to the subsequent maintenance of an action upon the note by her against him. Webster v. Webster, 253. 9. The destruction of a memorandum, written under a promissory note, and qualifying it, vitiates the note even in the hands of a bona fide holder, having no knowledge of the alteration. Wait v. Pomeroy, 395. 10. A. executed a promissory note payable to B., or order, but did not deliver it. Subsequently B. took the note from the possession of A., against his previous direction and without his knowledge, and put it into circulation. Held, that A. was not liable thereon even to a bona fide holder. An unstamped note is valid, and may be recovered upon in the State courts. Burson v. Huntington, 497. See Bill of Exchange; Certificate of Deposit Contracts, 2; Evidence, 1, 3, 5; Insolvent Laws; Stamps. PUBLIC SQUARE. See Municipal Corporation, 1. RAILROAD COMPANY. 1. By the first section of a city ordinance a railway company was authorized to build its road over and across certain streets of the city, provided, it should be built "on the grade of the city." By the second section the company was authorized to build a bridge across a river running through the city. Held, that the clause in the first section relative to grade did not prohibit the company from erecting suitable embankments, above grade, approaches to the river; and that the company was not liable to a lot owner for damages resulting from the erection of the embankment. Slatten v. Des Moines Valley Railroad Co., 205. 2. A passenger on a railway, who purchases a ticket for a distant station and gets off the train temporarily, and without objection or notice, while it is stopping at an intermediate station, does no illegal act, but for the time, he surrenders his place and rights as a passenger, but he may return and resume his place and rights as a passenger on the train before it starts, and the officers of the railway are bound to give reasonable notice of the starting of the train. State v. Grand Trunk Railway, 258. 3. When a railroad company is prosecuted in the form of an indictment, under a statute, for causing death, the same principles of law and rules of evidence are applicable, as in civil actions, for damages resulting in a similar manner. Ib. 4. A passenger was riding in the saloon-car of a freight-train, contrary to the rules of the railroad company, but the conductor made no objection, and collected fare of him for a first-class passage. Held, that he could recover for injuries received from the negligence of the railroad company. Dunn v. Grand Trunk Railway, 267. 5. In assessing the damages occasioned to the owner of a messuage by the taking of his lands for the construction of a railroad, the depreciation of value arising from the proximity of the road, and the running of trains should be considered only so far as is due to proximity, secured by means, and as a result of such taking. Walker v. Old Colony and Newport Railway Co., 509. 6. The effects of noise, smoke, soot and the like, are not distinct elements of damage, but, in estimating the depreciation in value of the entire tract, these causes may be considered, in so far as the annoyance and inconvenience arising therefrom are increased by reason of, and as an incident to, the taking of a part of the land. Ib. 7. The turning of surface water upon land, by the embankment of a railroad, is a proper element in estimating the damage to the landowner by the construction of a railroad. Ib. 8. It is evidence of negligence for a railroad company to run an engine without a screen on the smoke pipe, from which large sparks are emitted so as to set fire to an adjoining dwelling. Beddell v. The Long Island R. R. Co., 688. 9. A railroad company is not bound absolutely to furnish a vehicle-worthy road. McPadden v. The New York Central R. R. Co., 705. See Assessment; Carrier; Common Carrier; Constitutional Law, 5, 8; Easements; Evidence, 6; Master and Servant, 1, 3, 4, 6, 7. REBELLION. See Promissory Note, 2, 3; Statute of Limitations, 1. RECOGNIZANCE. See Sureties. REFORMING INSTRUMENT. See Insurance, 11. REGISTRY LAW. See Constitutional Law, 3. RELEASE. See Master and Servant, 6. REMOVAL OF CAUSES. See Transfer of Causes. |