ONE HUNDRED AND TWENTY-FIFTH MASSACHUSETTS REPORTS.

THIS

masons for the building of a party wall, which by reason of its defective construction falls and injures the property of the adjoining owner, is liable to him, whether the negligence were his own or that of the masons. The court say: "Assuming that the relation of the masons to the defendants was that of contractors, the former alone would be re

Kingsley v. Lake Shore Railroad, p. 54. The plaintiff, a passenger on defendant's railroad from Cleveland westward, on a coupon ticket from Boston, purchased at Cleveland a sleeping-car ticket; on approaching Toledo, he inquired of an employee if his baggage would be safe in the car while he went to dinner, and was informed that it would be; on his return he found the car taken from the train and locked, and was instructed to take another sleeping-car; part of his baggage was missing; held, that defendant was liable. The court say: "Although a railroad corporation is not responsible as a common carrier for an article of personal baggage kept by a passenger exclusively within his own control, it is liable for the loss of such an article by negligence of a corporation or its agents or servants, and without fault of the passenger." "The fact that the car was not owned by the defendant, but was used on its road under a contract with other parties, who furnished conductors and servants to take charge of such cars, there being no evidence that the plaintiff knew of that contract, or had any notice that the car was not owned by the defendant and under its exclusive control, could not affect the measure of the defendant's liability to the plaintiff." A full report of this case was given in 19 Alb. Law Jour. 113. The decision is consistent with a recent case in our Court of Appeals, Thorpe v. New York Central, etc., R. R. Co., 19 Alb. Law Jour. 471.

Wilton v. Middlesex Railroad, p. 130. An infant, being invited by the driver of a horse railway car to ride with him gratuitously on the platform, was there injured by his negligence. In the name of her father the infant recovered damages therefor, and the father subsequently suing to recover for loss of service, held, that he could recover. payment of fare," say the court, "is not a necessary condition precedent to such relation" of carrier for hire, nor does the fact that no fare was to be paid preclude the supposition that such relation existed." This is consistent with Creed v. Pennsylvania Railroad Co., 86 Penn. St. 139.

"The

Commonwealth v. Tobin, p. 203. A verdict of felony must be pronounced by the foreman in open court; a written verdict handed by him to the clerk and by him opened and read to the jury, they assenting to it, is irregular. The court say the law requires "the double safeguard against mistake" of the announcement by the foreman and the proclamation by the clerk. Stress is laid on the fact that in Massachusetts the defendant is not entitled to have the jury polled.

Gorham v. Gross, p. 232. One who contracts with

their negligence in a matter collateral to the contract, as for instance, in depositing materials, handling tools, or constructing temporary safeguards, while doing the work; but where the very thing contracted to be done is improperly done, and causes the mischief upon the land of another, the employer is responsible for it, at least after it occurs after the structure has been completed to his acceptance." See. Harrison v. Collins, 86 Penn. St. 153; City of Erie v. Caulkins, 85 id. 247; same cases and notes, 27 Am. Rep.

Poor v. Humboldt Ins. Co., p. 274. A warranty in a policy of fire insurance that a family shall live in the house throughout the year, is not satisfied by the occupancy of the house by two workmen who slept there at night, but ate and were employed elsewhere during the day.

Dickson v. United States, p. 311. A devise of land in Massachusetts and another State, "toward suppressing the rebellion and restoring the Union," was held valid, although the testator did not die until after the suppression of the rebellion, there being nothing in the law of Massachusetts to prevent the United States from taking by devise. United States v. Fox, 52 N. Y. 530; 94 U. S. 315, distinguished on the ground that by the law of New York a devise is valid only in favor of natural persons and corporations established by the laws of that State.

National Pemberton Bank v. Porter, p. 333. A national bank purchasing a note from the indorser may maintain an action on it against a prior party. This is put on the ground that "in this Commonwealth, it is not necessary that the plaintiff in a suit upon a promissory note should. have the legal title or beneficial interest in the note, nor indeed that he should have any title or any interest in it." This decision has been recently re-affirmed by the same court in Atlas Nat. Bank v. Savery, not reported. In First Nat. Bank v. Pierson, 16 Alb. Law Jour. 637, the Supreme Court of Minnesota held that the purchase of a note by a national bank was ultra vires, and that the bank acquired no title to and could not maintain an action on a note so purchased.

Milliken v. Pratt, p. 374. A married woman domiciled here made a contract with a party in another State, lawful there, and lawful here now, but unlawful here when made; held, that an action may be maintained against her here on it, although it was made by letter sent by her from this State to the plaintiff in the other. The excellent and elaborate opinion by the Chief Justice is published in

full in 19 Alb. Law Jour. 311.

Commonwealth v. Fenno, p. 387. An indictment for an assault with intent to kill with a loaded pis

tol is sustained by proof of shooting with the pistol. "The accusation is not limited to one of an assault with a pistol used as a club or bludgeon, but may be supported by evidence of using the pistol in the way in which a loaded pistol is ordinarily used."

Allen v. Woodward, p. 400. A mortgage of lands, described by metes and bounds, "with the factory buildings standing thereon, with the water wheels, shafting, belting, machinery, tools, and fixtures contained in said buildings," and containing the usual covenants and habendum, is a mortgage of real estate only.

Brown v. French, p. 410. A will directed the executors to use their judgment as to investing the estate, at the same time recommending keeping onehalf on real estate. When defendant was appointed trustee, more than half the fund was invested in government bonds, and none on real estate. He sold the bonds and invested the greater part in railroad bonds at eighty-five per cent of their par value, and the promissory note of an individual secured by such bonds. He was an experienced bank officer, and took advice as to the investment. The railroad was a line of 125 miles in Vermont, forming part of a continuous line from Portland to Ogdensburgh, and the bonds were secured by mortgage on the franchises and property of three railroad corporations out of Massachusetts, and were selling at from 80 to 90 per cent of their par value. The roads were managed by reputable men, and the bonds were regarded as an excellent investment. Subsequently the bonds greatly depreciated. Held, that defendant was not chargeable with the loss. This is certainly a charitable holding. We should suppose that a man who would sell out "governments" for railroad bonds, for a trust investment, was chargeable with a mild form of lunacy, but perhaps this is because we know more of law than of finance. At any rate we shall take care not to invest our executors with such a dangerous indiscretion.

Leonard v. Nye, p. 455. Money paid to a claimant out of the "Alabama" award passes to his assignee in bankruptcy. The provision of the United States, that assignments of claims against the United States must be executed in presence of two witnesses, and only after the ascertainment and allowance of and issue of warrants for the claims, applies only to voluntary assignments. This is another elaborate opinion by the chief justice. It is a little curious that this, the longest opinion in the volume, and the careful opinion in Dickson v. United States, supra, should concern questions which in all probability will never again arise in our law.

Cook v. Brown, p. 503. An action lies against one who fraudulently induces another to leave his home in another State, and come into this Commonwealth, with intent to cause his arrest and compel him to settle a disputed claim; and his submission to the jurisdiction without pleading the illegality of his arrest is no bar. "There is involved a loss of time, a neglect of business, and an expenditure of money, which are capable of being proved, and which are a direct and immediate injury to the party."

Commonwealth v. Tobin, p. 202. An indictment for adulterating "confectionery" is bad for not sufficiently describing the subject of adulteration.

The expression "pie powder court," at page 4, is explained in 3 Bl. Com., marg. p. 32. Chief Justice Shaw, from whom it is quoted, evidently had a contempt for the French language, like Mr. Lilyvick, the water-rates collector in Nicolas Nickelby, who thought nothing of a language in which "water" was "low."

The volume contains a memorial of the late Judge Thomas.

ADDRESS OF MR. JUSTICE MILLER.

DELIVERED before tHE IOWA STATE BAR ASSOCIATION, AT DES MOINES, MAY 13, 1879.

Gentlemen of the Association of the Bar of the State of Iowa:

It is with no ordinary satisfaction that, in response to your invitation, I appear before you this evening. On a similar occasion I stated, a few months ago, to the representatives of the bar of New York, that judges and practitioners are all members of a common profession, engaged in the pursuit of a common object, namely: the pure, the efficient, the perfect administration of justice so far as that is attainable among men. I think I was justified in thus alluding to the relation between the bar of that State and myself. But I crave your indulgence if I take this opportunity, not altogether an unfit one, to recall some of the incidents of the much more intimate relations which I have heretofore borne, and which, I trust, I still bear, to the profession in this State, and to give expression to feelings which are inseparable from the occasion.

It is now about thirty years since I became a member of the bar of the State; a period long enough to enable me to recall many a friend and associate who has gone to plead his cause before a bar where justice is tempered with a mercy unknown to human laws.

When, after twelve years of active practice in the courts of the State, some personal and professional friends were kind enough to suggest my name as a proper person to fill one of the two vacancies then existing in the Supreme Court of the United States, I was comparatively unknown as a lawyer outside the borders of Iowa. It was, therefore, due, in an unusual degree, to the heartiness and unanimity with which the bar of my own State recommended my appointment that the application was successful. It was a time of great political excitement and I have always felt peculiarly gratified that members of the bar who were zealous democrats vied with those of the republican party, of which I had, since its first organization, been an active supporter, in the sincerity and vigor of their recommendations. I do not recollect that any lawyer in the State, of either political party, who was applied to for the use of his name, declined to give it.

But this is not all. When, after ten or twelve years' service in that court, a new chief justice had to be appointed by reason of the death of Judge Chase, the bar of the State, by a spontaneous movement, a movement unsought by me- for I was then in Europe-a movement, I am happy to say, responded to by the entire circuit over which I have so long presided, pre

sented my name to the president as its choice for

the place.

And now, gentlemen of the Iowa Bar, I must say to the first collective representation of that bar which I have had the privilege to address, that whatever of

praise or blame I have received or may be entitled to for my judicial career, and however I may have been gratified by expressions coming to my ears in that connection, perhaps far too flattering, it is with deeper sensibility and more grateful memory that I recall that earliest and spontaneous expression of the estimate in which I was then held by my generous professional brethren of this young and noble State.

I fear this may seem egotistical, but I mention it for two reasons:

1. To show that your early confidence in me was not misplaced; and

2. To excuse me if, in what I shall further say to you, I assume a tone of patriarchal admonition, justified, I hope, by these proofs of your consideration and by seventeen years' service and observation among you and at Washington City.

In the opportunities which this varied experience has given me of observing the characteristics of the profession, as they show themselves in connection with different localities, I have had no occasion to be ashamed of the learning or the intelligence of the Iowa bar.

In vigor of thought, in extent of professional knowledge and in zeal and fidelity to their clients, they compare favorably with their brethren of the older States, and this, I think, is true of the bar of the North-west generally.

There is, however, a disadvantage under which you labor in this comparison, which has forced itself upon my observation, and of which, as you are possibly unconscious, I may be able to do you a service by faithfully disclosing it.

It is difficult to find a single word to express what I mean, but, if I must select a word, I should say your Eastern brethren, taken as a whole, are your superiors in training.

They do not know more than you do, but they use what they do know with more skill. Their materials are better arranged. Their forces are better marshalled. Their resources are better culled and sifted, and the results presented to the court in a more methodical order, and, therefore, better and more readily apprehended.

This is the result of careful discipline, as much so as the most effective use of an army is based on the perfect discipline of the soldier. As the most brilliant military genius cannot handle with assured success a raw and undisciplined army, so the most learned lawyer will be unable to avail himself of his treasury of knowledge until he has trained himself to the skillful use of that knowledge in its practical application to the business of the courts.

You will perhaps be surprised when I tell you that the ablest lawyer of this or any other bar, when he is for the first time appointed a judge, has to learn his trade, as much as the mechanic's apprentice. Of course I do not mean by this that he has to learn the law, for I am supposing him to be learned in the law. But what the apprenticed mechanic learns of his master is not the science of mechanical forces, at least not mainly that. What he does acquire in that apprenticeship is skill in the use of his tools. This is precisely what I am saying of a new judge. Let me illustrate this from my own experience, for it is closely related to training in a lawyer. It is in fact the same thing. I am very sure that it does not take me half the time now that it did at first to eliminate from a complex case presented to me for decision what is irrelevant or immaterial, and to ascertain the point of conflict necessary to be decided. And this is equally true whether the contest be one of law or of fact, or both. By practice and attention I can listen to a lawyer, read a document offered in evidence, pass with him lightly over the formal parts of the instrument, and when he comes to the vital matter, the few words, perhaps, which

alone touch the issue, I catch their precise meaning, and if I do not get that clearly I stop him there until I do. It is rare that I need go over that instrument again. So I have acquired, I hardly know how, except by practice-by training-the faculty of taking an immense record of 500 or 1,000 pages, and turning at once to the material parts, whether of pleading, of evidence, or whatever it may be, and in one-third the time it took me when I first went on the bench, I gather the materials for my judgment without digesting a mass of useless chaff.

So of briefs of counsel. A judge who for the first time has presented to him in an important case one of those things called by way of joke, I suppose, a brief, of 100 or 200 pages, with citations of authorities under twenty heads, taken indiscriminately from a digest, is appalled. But the practiced judge soon gets the earmark by which he recognizes the cases which are in point, and those which are not, and gives his earnest attention to the former.

In short, he learns how to handle the tools by which his judgment is fashioned. If this be true of the labors of the judge, how much more is it so of the lawyer?

The practice of the law is an art. There is no question that, like painting or sculpture, there is necessary to its perfect attainment a certain native genius for its pursuit. But this does not mean, as in those arts, imagination, taste, a delicate sense of beauty in form or color. In the law a much more useful, and a much more common quality, is the native foundation of success. It is a sound judgment, a clear head, a strong development of the reasoning faculty, a capacity to reduce all propositions to the test of sound logic, without regard to the syllogisms of Aristotle or Whately, and independent of rhetoric as a science or an embellishment.

But this natural faculty, like all other gifts of nature, is susceptible of vast improvement in its use by cultivation, by polish, and, above all, by training.

I confine myself, for the present, to the latter. And by this training I mean the exercise of the faculties in the best mode possible, of presenting your case to the tribunal which must decide it; I mean the restraint which use enables you to impose on an exuberant imagination, the caution which experience teaches, of careful statement and safe movements, the courage which familiarity inspires in battling for the right, and, above all, the skill which is acquired by constant observation, practice and correction in setting forth your case in the strongest light, and the most inviting aspect.

It is a very common error, when a lawyer has adroitly made an unwilling witness tell the truth; or more frequently, when he has made a telling argument to court or jury, delivered with a captivating ease and grace, for the ordinary listener to imagine that it cost no labor or trouble. I have heard men who had the sense and taste to admire such a speech, declare in the utmost good faith that they were themselves intended by nature for lawyers, because they caught with such readiness the force and beauty of the argument, and saw with clearness the proposition it sustained. the experienced opponent, or the observing judge, could see without difficulty that the apparently artless impromptu address was the perfection of art itself, concealing the long and laborious study previously given to the case, the careful and systematic mode of presenting it, determined on before the orator had opened his mouth. All the important propositions maturely considered, and in the critical exigency of the argument, the very words selected in which it is to be expressed.

But

All this is the result of training, of constant and thoughtful criticism on your own style, of careful preparation for every occasion; of a review, after the

effort is over, of the manner in which it has been made, and a considerate resolution to profit in future by any failure or defects that may be discovered.

Let me give you at once an illustration of what I mean, and an example for your guidance. It is a story told me of Mr. Webster by the late Benjamin R. Curtis, formerly a judge of the Supreme Court of the United States. He said that quite early in his professional life he had been employed as a junior counsel to Mr. Webster, in an important case. A consultation being necessary, Mr. Webster invited him to call at his office at as early an hour after daylight as he could find convenient. When he arrived he found Mr. Webster, with the papers on the table before him, a pen in hand, and several sheets of paper written over. "I am very glad to see you," said Mr. Webster;*"I have been taxing my brain for the last five minutes for the proper word in the sentence I am just writ- | ing, and can't call it up. Perhaps you can assist me." After some suggestions the proper word was found, to Mr. Webster's delight, and the consultation proceeded.

It is no wonder that Mr. Webster's addresses are the models commended to youthful orators to-day, or that when delivered with scarcely a gesture or a movement, beyond the expression of those deep-set eyes, and a face in which intellect seemed enthroned, they should have moved the hearts of his hearers and convinced their judgments as no other man of his day could do.

In this familiar talk to the bar of my own State, I cannot pass the name of Judge Curtis, having once called it up, without an observation or two on that remarkable man, which will be found to illustrate the tenor of my address in the same manner that the anecdote of Webster does.

In all ages and countries, since letters have enabled the race to preserve human tradition, men have been singled out as standing without rivals in their peculiar fields of exertion. Demosthenes and Cicero, as the orators of Greece and Rome, are of this class; Lord Mansfield, as a common-law judge, and Lord Hardwicke, as the master builder, if not the founder, of our system of equity jurisprudence, are, in my opinion, entitled to the same pre-eminence among Englishmen. Erskine, though a sad failure as Lord Chancellor, is, beyond all question, the first advocate that English or American history has to exhibit. I mean first, as standing on a pinnacle no other advocate, merely as such, has ever reached.

In this sense I pronounce Benjamin R. Curtis the first lawyer of America, of the past or the present time. I do not speak of him as a jurist, nor as a judge. I do not speak of him as an advocate alone or specially, nor as a counsellor; I speak of him as a lawyer, in full practice in all the courts of the country, State and National; as engaged in a practice which embraced a greater variety of questions of law, and of fact, than is often to be found in one man's experience.

I am not unmindful of the reputation of Pinckney and Webster, nor of what Judge Story has said of his impression of the former. But Mr. Webster was so much more statesman than lawyer, and his labor and thought given so much more to politics than to the profession, that we rather conjecture what he might have been as a lawyer than what he actually was. Pinckney, no doubt, was the most finished and effective orator that ever appeared in the Supreme Court of the United States. It is to be remembered that he was a full generation earlier than Curtis, and lived at a time when oratory was a much more potent means of success, both in the judicial and legislative forum than it is now. In this respect, doubtless, Curtis was excelled by Pinckney and Webster, and, perhaps, many lawyers of his own day, though he was by no means deficient

in the winning graces of manner of an impressive speaker.

But what I desire to say is, that in analytical capacity to discover the principles of law which were involved in every case that came before him, and take a correct and truthful view of the facts of such a case, however complicated, and, above all, in the power of presenting these principles and facts to the court and jury, and impressing them by sound and convincing argumentation, Judge Curtis has never had an equal in this country. He had the capacity to see the points which were decisive of the case, and the manly courage to discard every thing else. The highest tribute to his skill and learning as a lawyer, and his frankness with the court, which I can think of, and which I can pay with strict truth, is this: that of the many causes I have heard him argue in the Supreme Court, all were decided upon some ground discussed by him as material to the result. He selected his own field of battle, and whether he won or lost, the issue was fought out on that ground, and his opponent could not escape from that battle-field till one or the other was the victor.

Now for the application of this episode to the general course of my remarks. Judge Curtis was not a man of brilliant talents, though possessed of a vigorous intellect. He was in no sense a striking speaker. Neither his figure nor his gesture was commanding. He has no celebrity as a sayer of witty things, as Choate has, nor any of those grand sentences conveying a profund thought in undying words, as Webster has.

It is, therefore, clearly to be seen that his superiority as a lawyer was mainly due to the depth of his learning in the law, his capacity for discovering the principles involved in a case, and the training and discipline of his mind and habits. In the mere learning of the law he undoubtedly had his equals, possibly his superiors, among his contemporaries and rivals. But in careful, skillful, unceasing training, in mental, moral discipline, such as the athlete receives at the hands of his trainer, I doubt if any one approached him. There were no hasty preparations for trial, leading to surprises and discomfiture. There is no defective pleading discovered too late for profitable amendment. There were no slovenly briefs patched up at the last moment, nor unwise citations of authorities dangerous to his case, because carelessly read or not read at all.

If an oral argument was made, it was the perfection of system and classification. Every thing was considered and adjusted to its right place for delivery, and so presented as to leave no occasion for repetition. The substance of what should be said was thought over so often and the force of the very words to be used in some places so well considered, that no gaps were left in the argument, through which his opponent could enter the wall of his defenses with a troop of cavalry. It was as hard to follow him as it was dangerous to precede him. Of course, like all lawyers, he would lose a cause where law and right were against him. But I presume that in his later years, in fact, as soon as training and experience had developed the full measure of his ability, no man ever felt that his case was lost for want of the best possible presentation of its merits, when Curtis was his lawyer.

Before I pass from the memory of this most eminent man of our profession, whose example, if I have succeeded in winning your earnest attention to it, is sufficient to redeem all the faults of this unpretending address, I cannot forbear one other remark worth your serious consideration. He rarely found it necessary, in an argument in the Supreme Court of the United States, to occupy over forty minutes, and I recollect only two cases in which he spoke beyond an