necessary witness in the two cases, and attended the court for the sole purpose of giving his evidence. While so in attendance he was served with a summons in another case. He applied to the court, on a showing of the facts, to set aside the service, but the application was refused. He now moves in this court for a writ of mandamus. We think the case is within the principle of Watson v. Judge of Superior Court, 40 Mich. 729, and that the writ should issue. Public policy, the due administration of justice, and protection to parties and witnesses alike demand it. There would be no question about it if the suit had been commenced by arrest; but the reasons for exemption are applicable, though with somewhat less force, in other cases also. The following cases may be referred to for the general reasons: Norris v. Beach, 2 Johns. 294; Sanford v. Close, 3 Cow. 381; Dixon v. Ely, 4 Ed. Ch. 557; Clark v. Grant, 2 Wend. 257; Seaver v. Robinson, 3 Duer, 622; Person v. Grier, 66 N. Y. 124; Matthews v. Tufts, 87 id. 568; Hall's case, 1 Tyler, 274; In re Healey, 53 Vt. 694; Miles v. McCullough, 1 Bin. 77; Halsey v. Stewart, 4 N. J. Law, 366; Dungan v. Miller, 37 N. J. 182; Vincent v. Watson, 1 Rich. Law, 194; Sadler v. Ray, 5 id. 523; Martin v. Ramsey, Humph. 260; Dickenson's case, 3 Harr. (Del.) 517; Henegar v. Spangler, 29 Ga. 217; May v. Shumway, 16 Gray, 86; Thompson's case, 122 Mass. 428; Ballinger v. Elliot, 72 N. C. 596; Parker v. Hotchkiss, 1 Wall. Jr. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Arding v. Flower, Term R. 534; Newton v. Askew, 6 Hare, 319; Persee v. Persee, 5 H. L. Cas. 671. See also In re Cannon, 47 Mich. 481; S. C., 11 N. W. Rep. 280. The case of Case v. Rorabacher, 15 Mich. 537, is different. In that case the party claiming the privilege was attending court within the jurisdiction of his residence. Mitchell v. Wixon. Opinion by Cooley, C. J. [Decided April 30, 1884.]

SALE WHEN TITLE PASSES-ATTACHMENT-JURY'S AWARD OF DAMAGES.-When property sold has been identified, it is immaterial that it had not been received and weighed by the purchaser, and the quantity agreed upon ascertained, before a levy under a writ of attachment against the vendor, and the sale must stand. Where a record fails to show how a jury made up their award of damages, and it was possible for them, on the evidence, to award the amount, without including improper items, a judgment will not be disturbed, because they may have included the improper items. Adams Mining Co. v. Senter, 26 Mich. 73; Lingham v. Eggleston, 27 id. 324; Hatch v. Fowler, 28 id. 205; Hahn v. Fredericks, 30 id. 223; Wilkinson v. Holiday, 33 id. 386; Grant v. Merchants', etc., Bank, 35 id. 515; Scotten v. Sutter, 37 id. 526; Brewer v. Salt Ass'n, 47 id. 526; 11 N. W. Rep. 370. Sandler v. Bresnahan. Opinion by Cooley, C. J. [Decided April 30, 1884.]

NOVATION-SURRENDER OF NOTES SECURED-MORTGAGE CONTINUES IN FORCE--POWER OF ATTORNEY.—(1) A debtor is discharged from all personal liability by an agreement of his creditor to accept another in his stead. The acceptance of a new debtor does not raise a new debt, but merely transfers the old one. The debt itself is not changed by the novation. A mortgage continues in force until the debt is satisfied; and it is not discharged by the surrender of the notes secured and the acceptance of others in their stead from a new debtor. No mere change in the form of the debt, nor, as we think, in the personnel of the debtor,

has the effect to discharge it. Sloan v. Rice, 41 Iowa, 465; Packard v. Kingman, 11 id. 219; Henderschott v. Ping, 24 id. 134; Watkins v. Hill, 8 Pick. 522; Pomeroy v. Rice, 16 id. 22. (2) Where a power of attorney is given to cancel a mortgage and take a new one in its place the mere cancellation of the old mortgage under the power is of no effect unless a new mortgage is taken. 56 Iowa, 622; 10 N. W. Rep. 214. Foster v. Opinion by Reed, J.

Paine.

[Decided March 20, 1884.]

RECENT ENGLISH DECISIONS.

WILL-LEGACIES-INTEREST ON UNPAID.-A testator bequeathed various legacies, and amongst others a legacy to each of the sons and daughters of E. P., whether born in the testator's life-time or after his decease; and the will contained the following words: "I direct that the said several herein before-mentioned legacies shall be paid within four years after my decease. The executors paid certain of the legacies within one year after the death of the testator. The assets were amply sufficient to pay all the legacies, but other legacies had not been paid, because the legatees, being infants, were unable to give receipts for the same. The question was from what date interest was payable on the unpaid legacies. Held, that the direction as to payment was merely for the general convenience of the estate, for which purpose it was not necessary to postpone the payment of the legacies; and that therefore the several unpaid legacies should be credited with interest from the end of one year after the testator's death. Varley v. Winn, 2 K. & J. 700, followed. Chan. Div., March 15, 1884. Olive v. Westerman. Opinion by Kay, J. (50 L. T. Rep. [N. S.] 355.) [See 9 Alb. L. J. 175; 17 id. 279.-ED.]

PARTNERSHIP-REAL PROPERTY OF, PERSONALTYCANNOT BE RE-CONVERTED.-Real property belonging to a partnership, being regarded in equity as personalty in consequence of being impressed by equity with an implied trust for sale, cannot be reconverted, so as to avoid liability to probate duty at the death of one of the partners, by any thing short of a binding agreement between the partners which takes effect at the death. And therefore where one partner assumed by his will to reconvert real proverty belonging to the partnership, in pursuance of an alleged agreement between the partners that he should do so by his will, the liability to probate duty was not ousted. (2) A. and B. carried on business in partnership together. An arrangement was made between A. and B. that A.'s share of the real property of the partnership should remain in the business after A.'s death, B. to pay an annual sum equal to 5 per cent upon the value of A.'s share as rent for it. These terms were embodied in A.'s will, and B. assented to them. Subject to these terms, A. devised and bequeathed all his property to his executors upon trust for his wife E. A. died, and B. paid to A.'s executors an annual sum equal to 5 per cent upon the value of A.'s share in the real property of the partnership. E. afterward died, having made her will, whereby she confirmed the dispositions in her husband's will, and subject thereto devised and bequeathed her property to her children. Held, that A.'s share of the real property of the partnership was personal property, and so liable to pro-bate duty, both under his will and under E.'s will, and that there was no such agreement made between the partners as was effectual to reconvert the property into realty. The judgment of Pollock and Huddleston, BB., and North, J. (48 L. T. Rep. [N. S.] 608),

affirmed. Custance v. Bradshaw, 4 Hare, 315, overruled. Ct. of App., Jan. 17, 1884. Attorney-General v. Hubbuck. Opinions by Coleridge, L. C. J., Brett, M. P., and Bowen, L. J. (50 L. T. Rep. [N. S.] 374.)

T is County Court day at D., and the local practitioners are all at their offices at 9 sharp, waiting for the last stray fish that may come to the net. I have a jury case with S., "Mr. Attorney-General," as we have dubbed him, and two or three smaller matters against less dangerous antagonists, but these are all prepared and will cost me no trouble this morning. I have seen my witnesses, looked up my cases and am ready for the fray. What I now await is the visit of

the country folk, who after having made up their minds to rely upon their own unaided eloquence will surely lose heart at the last moment and run to the lawyer. And here comes the first batch tumbling up stairs, a dirty "butty" collier, who has not even taken the pains to wash himself for court day, his burly, masterful wife, and his witnesses, two pitmen, one of whom rejoices in the name of “Killers" Grant. As none of the party can either read or write I have to make a wild guess and dub my man Achilles, which classic cognomen he accepts without compunction. Twenty minutes suffice to despatch this batch, for I hear the noise of many voices below. The needful guinea is duly paid and party No. 1 adjourns to the court to make room for No. 2, and so on till at 10:30 comes a lull, and I take a final look at my papers and fix myself up for the court-room. At the last moment a belated litigant rushes in and half past eleven strikes from the church tower before I find myself outside the office and on the way to battle.

The registrar has of course been sitting since 10, and has by this time disposed of all the undefended causes so that I have scarcely donned my gown and entered court when the judge's door opens, and with a quick resolute step, Sir Rupert moves to his bench, bobs to the bar, and the first case is called.

The first case happens also to be my friend H.'s first appearance, and he is sadly overweighted by the grizzled veteran on the other side. The judge however with his usual kindness to beginners, helps H. through, and if he does not exactly score a victory, yet he does not suffer a thorough-going defeat, and as he confesses to all afterward, "it wasn't half so terrible after all, you know."

And now it is noon, the hour fixed for juries. In five minutes the seven jurors are sworn, and "Mr. Attorney-General" is opening for the plaintiff. S. is a self-made man; beginning as an office boy he has made his way by force of ability; he owes every thing to the County Court, for it is the reputation acquired there which has built up for him a practice now second to none in the county. Personally he is not popular with his brethren, but the plain truth is that he has been too successful to be popular. They look at him and think of clients lost. Having no old grudges against him myself, I can judge him more fairly. I esteen him a model advocate, and a good man to deal with. To-day he will probably earn 30 or 40 guineas, for it may safely be assumed that he is engaged in at least three-fourths of the cases on the list.

Now let us take a look at the judge. Stout, with a grizzled beard, a broad forehead, and eyes that almost speak, Sir Rupert is a terror to bogus witnesses and all the other frauds who haunt a courthouse. He is hardly less dreaded by the slow coaches of the bar who cannot keep up with his intellectual pace. But he is beyond all question the right man in the right place.

Thoroughly acquainted with the staple trades of the district and their intricate customs and rules, and a warm but honest friend of the working man, his decisions are accepted with general content, seldom appealed and still seldomer reversed. His patience with beginners is inexhaustible for a time, but after a certain period he evidently considers their novitiate passed, and thenceforth they must take their chances with the rest. One thing he hates-prolixity him an advocate must be quick, willing to take points without laboring them, and economical, of speech. But whilst we are discussing the judge our trial is going rapidly on.

Before

In an hour S. has opened his case and called his evidence and my turn has come. Ten minutes suffices

court.

for my opening, half an hour for my three witnesses, and then in accordance with our usual practice we waive our further speeches and leave the case with the Sir Rupert sums up carefully and fully with a distinct intention of showing the jury which side ought to win, and at ten minutes after two the jury are ready with a verdict, and the case involving a question of some £40 is decided. The total expense of the action to the losing party will probably be about £7 or £8 taxed costs of the other side, and £10 to his own attorney, and from the inception of the suit to its final decision not six weeks have elapsed. It is in this way and in tribunals such as these, that the great bulk of English litigation is disposed of. No wonder the County Courts are popular.

The jury are no sooner out of the box than the next case is begun. The judge takes his chocolate and biscuits on the bench, and the attorney who wants his lunch must get it as best he can, for the court waits for One cumbersome account case is relegated

no man.

to the registrar, two or three are settled by consent, every one works with a will, and by five o'clock we see the list conquered and the judgment summonses reached. By six, the court-room is silent and deserted, and County Court day is over.

As it is a fine evening we may rely upon meeting most of our confreres on the cricket field, and accordingly thither we repair and close the day with "beer and skittles."

CORRESPONDENCE.

A CORRECTION.

Editor of the Albany Law Journal:

In your valuable journal of date July 19, 1884, page 45, I have observed an article headed "The Presumption of Survivorship."

Rule one reads as follows: "There is no presumption as to the order in which two or more persons died who are shown to have perished in the same accident, shipwreck or battle. The law regards them as having died at the same instant."

Your first reference is to the California Civil Code, section 1963, subdivision 40.

You commit two errors. 1st. It is not the Civil Code, but the Code of Civil Procedure, which regulates this subject-Evidence-Indirect Evidence, Inferences and Presumptions--commencing with section 1957.

2d. Subdivision 40, section 1963 of the Code of Civil Procedure, provides that where two persons perish in the same calamity, such a shipwreck, battle or confiagration, and it is not shown who died first, etc., survivorship is presumed from the probabilities resulting from strength, age and sex, according to the following rules.

It is unnecessary for me to quote the entire section, as you may understand its provisions by a glance at the section itself.

I believe there has been no change in section 1963
since the adoption of our Codes in January, 1873.
Yours respectfully,
W. F. HENNING.

NAPA, Cal., July 26, 1884.

The Albany Law Journal.

ALBANY, AUGUST 16, 1884.

CURRENT TOPICS.

THE Superior Court of the city of New York has

was fond of exhibiting without in the least detracting from the dignity of his office, the absolute impartiality with which he held the scales of justice, all these are traits which many of us can recall with special satisfaction. The calm serenity and even temper which distinguished him then were conspicuous in all his life, the later years of which were full of respect and honor, but it is to his judicial career that I chiefly recur, and to his judicial record, as made up in the volumes of Sandford and Duer, and the ten volumes of his own reports. It is a record of faithful, unwearied and fruitful labor in the high and responsible office which he filled."

had several judges of remarkable ability. If not representing one of the greatest of these intellects, the name of Bosworth is at least one of the most familiar to our profession, and reminds us of a long, useful and honorable professional life. Fitting commemoration of the death of this excellent man was had at a meeting of the bench and bar of the city on the 13th of June last, and the proceedings have now been published in a pamphlet, accompanied by a portrait of the judge. Addresses were made by Messrs. David Dudley Field, William Allen Butler, Edwards Pierrepont and ex-Governor Hoffman. Judge Bosworth was a justice of the Superior Court twelve years, and at one time chief justice. Later he was a member of the board of police commissioners. After his retirement from the bench his services were in great request as a referee. His ten volumes of reports will give him that professional immortality which most lawyers fall short of. In his remarks at the bar meeting Mr. Butler aptly characterized Judge Bosworth as follows: "In Chief Justice Oakley we admired his massive intellect and native judicial instinct; in Chief Justice Duer, his ardent, impulsive love of justice, his large and various learning, his discursive but well trained faculties; while in Chief Justice Bosworth what we specially admired, if I mistake not, was his acute, clear and discriminating mind, aided by the natural vigor of his intellect, which gave him, if not a larger grasp of all the principles of the law, a firmer grasp of those which were required for constant application to the subjects of his special inquiry, than belonged to other men. With him the judicial faculty was like a true, well-tempered blade, remarkable not so much for its polish as for the keenness of its edge, and the sharpness of its point, never wielded for mere display, never turned aside in irrelevant contests, and always fairly and fearlessly used in the inter-footed, living for years on oatmeal porridge, with est and service of justice. As a member of the junior bar, when Judge Bosworth came on the bench in 1851, and during his term of twelve years' service, I was often before him, and it was to me always most interesting and instructive to try causes in his court. He possessed qualities which, while perhaps not indispensable for a proper exercise of judicial anthority, greatly enhance the pleasure and satisfaction of the practitioner. His imperturbability, his patience, his great sagacity, his quickness and dexterity, if I may so call it, in detecting and defeating technical, insufficient or unworthy causes of action or defenses, the ease with which he disposed of difficult questions of law, the clearness with which he presented questions of fact to the jury, the quiet humor which he VOL. 80-No. 7.

In the remarks of Judge Pierrepont we find the following of especial interest: "I think that there has been no instance in which a lawyer has reached eminence in our profession who was born to fortune, unless he lost it while young. There have been some apparent exceptions, but investigation has proved that they were not exceptions at all. More than eighteen hundred years ago the rich young man learned that he could not enter the kingdom of Heaven unless he relieved himself of his riches; and experience proves that it is equally hard for a rich young man ever to reach the inner temple of the law. For many years the case of Lord Mansfield was cited as an instance to the contrary. This rested upon the authority of a letter written by the Earl to a literary man who wished to write the life of the lord chief justice, then in the plenitude of his greatness. In this letter now extant the lord chief justice says: 'My success in life is not very remarkable; my father was a man of rank and fashion. Early in life I was introduced into the best company, and my circumstances enabled me to support the character of a man of fortune. To these advantages I chiefly owe my success.' Many years later, Lord Chancellor Campbell uncovered the utter snobbery of that untruthful letter, and showed that William Murray, the embryo lord chief justice of England, was the eleventh child of a prolific Scotch woman, who bore fourteen paupers to her poverty-stricken lord, and that her boy William was tattered and bare

fish occasionally in their season, and that his wonderful success was due entirely to his great natural abilities and intense ambition, stimulated by the mortification of his extreme poverty. Lord Campbell says: 'His circumstances did not enable him to support the character of a man of fortune, and he did not owe his success to the advantages which he then enumerated,' and characterizes Lord Mansfield's letter as an ebullition of aristocratic inso lence.'” * * Like all good men, as he knew the world better, and realized its trials, its temptations and its sorrows, he grew lenient toward the shortcomings of his fellow-men, and in later years he seemed to have adopted as the motto of his life the words of the martyred Lincoln: With malice toward none; with charity for all; with firmness in

*

the right as God gives us to see the right.' We would commend this last sentence to the considera tion of men in these times of heated political discussion and indefensible assaults on private char

acter.

There is a great deal of popular exaggeration of lawyer's incomes. A recent article in a newspaper of this city has undertaken to give an estimate of the incomes of the bar of this city, and has unquestionably grossly exaggerated them. We have not seen the article in question, but an account of it from the New York Daily Register comes to us roundabout from the Ohio Law Journal. If this account of our lawyer's earnings were true we should look for a large and speedy immigration hither from Ohio, if not from the city of New York. The Register's statement is: "The larger number of the names given appear in the class of three thousand a year and under. In smaller classes are those said to have an income of three thousand a year or more, five thousand a year or over, and ten thousand or over. In the latter class are mentioned apparently fourteen or fifteen individuals, besides three firms. Probably the reader is intended to understand that the members of the firms that are mentioned each have an income of that class. Of course these estimates are to be deemed as guesses, and some of them, the Albany Express says, are stupendous errors, but on the whole, the estimate seems to be accepted as indi cating a fair sort of general average." We do not suppose that there are more than six or eight lawyers in this city who have a regular income of ten thousand dollars, and we do not suppose there are more than a dozen or fifteen others who have an income of five thousand dollars. There are undoubtedly a good many who have an income of three thousand dollars- very likely two score of this class, but the great mass of our two hundred lawyers are "under" that sum. We speak of average incomes which can reasonably be depended

on.

Some months ago a book was published entitled the Bench and Bar of Chicago, purporting to give biographical sketches of the judges and leading members of the Chicago bar. The Chicago Legal News now says: "The unsuspecting world were led to believe that this book had been prepared and published for the sole purpose of spreading the fame of those lawyers of this city who had earned a position of eminence through their perseverance and ability, but from a suit purporting to be commenced lately in the Superior Court of this city by the publisher of this book against a member of the Chicago bar to recover $500 for insertion of his biography and portrait therein, it appears that the public have been entirely misled in regard to the motive which induced its publication. At least this bit of evidence tends to a conclusion in that direction." This sort of thing is very common in this part of the country, but we are astonished to learn that it has infected the modest, quiet, retiring genius of Chicago. Among us the most offensive form is the "Lives of Self-Made Men," who are almost uniformly those who worship their maker, and are willing to pay roundly for being portrayed and biographed. Why is it that selfmade men are generally so noisily and offensively conceited? We can tell them as far off as we can see their portraits. There is a smirk of self-satisfaction that seems to say, "just see what I have done with my little hatchet!" We receive a great many self-advertisements of such men, and the waste-paper basket yawns for them. Among us the "County History" is the worst humbug of the kind in question. Glib-tongued agents go about among the innocent and well-to-do rural people, and persuade them to have their biographies written, and their portraits and a view of their homestead engraved and published, and to pay a sum equal to a year's profits of their acres for the privilege. The innocently-vain subjects dress up in their unaccustomed Sunday toggery and jewelry, and sit for their pictures, and they always look their very worst. We keep a pair of the very heaviest Indian clubs at our hand in our office, on purpose to brain the first county history man who comes to inveigle We must say however that we admire the pluck of the Chicago lawyer who refuses to pay, for he has probably not got his money's worth. These publishing fellows are worse than the lightning-rod frauds, and charge from $200 to $300 for a steel portrait worth $75, and $200 for a "biographical sketch" worth nothing whatever.

us.

Now and then a lawyer of the less fortunate classes makes a lucky hit, and receives a large income for a year or two, and then he is cited as a constant recipient of such an income. In the war times of income returns to the government the popular idea of lawyers' incomes received a rude shock, and we do not suppose that times have much changed certainly not much for the better. Every lawyer does a great deal of work for which he gets no pay or very poor pay, and especially is this true of litigated business which makes the most show. Many of the quieter lawyers, concerned with estates and conveyancing, take in yearly sums It is fortunate for the London Law Times that it that would astonish their brethren who do the does not flourish in our free and enlightened countalking in the courts. But outside of a few great try, or at least in that part of it known as West firms in every large town or city, who monopolize Virginia, where bold and saucy editors are sumthe important and lucrative business, the profession marily dealt with for contempt. Mr. Justice Manis not very well paid. We see no reason to doubt isty was asked for a stay of execution pendthe soundness of the adage laid down by some ing appeal, and peremptorily refused it, observing: lawyer, that it is the lot of the profession to "work"Every case that is tried now, whether the sum is hard, live well and die poor."

£20 or £20,000, up gets the counsel and asks that