"LAWYERS: WHERE THEY GO TO !" Under this title the following was printed in the form of a broadside ballad, and circulated among the author's friends, by a gentleman whose merits would be more apt to be disclosed by a personal than by a poetical acquaintance; in other words, who is stronger in piety than in poetry, and who gives better measure in his dealings with his fellow men than in his rhymes. He is an elder in the church, and naturally enough his verses, like the parables of which he is such an admirer, do not "go on all fours." We once heard of an auctioneer who put up a volume "by a poor and pious girl who wrote poor and pious poetry;" the elder does not resemble that girl in regard to pecuniary circumstances, nor is his poetry like hers, in the latter respect at least. But let us not be too critical. Our subject forbids it. We must consider poesy in all its forms, as well in the elephantine gambolings of a cart-horse as in the graceful curvetings of Pegasus. So let us send the elder down to posterity. "I heard a story once which sounded well, As best I can to verify this creed, Or, rather, maxim, hoping I may throw Besides all this, a smoke is seen whose hue CURRENT TOPICS. Here is a story good enough to be put in the Sunday school books for the edification of the embryo lawyers of the future. The Milwaukie Wisconsin gives it as follows and vouches for its accuracy: About twelve years ago a well-known member of the bar of this city, upon opening his mail one day, found a bright looking $10 bill in a letter. The letter was not signed, and said simply that the money rightfully belonged to the lawyer, and he must use it as his own and ask no questions. The lawyer did so. Next year, about the same time, another letter, with another new bright $10 bill and the same request, came; and every year since that time a similar letter, with a similar bill, has reached the lawyer. Naturally, he has felt some anxiety to know who the donor is, but all his attempts failed, and until a few days ago he was in ignorance. At that time a letter came with $10 and an explanation. It seems that over twelve years ago the sender was in the city, got into trouble and could get nobody to defend him because he had no money. The lawyer in question learned of the case, felt interested in it, defended the man and got him clear. His bill would have been $10, and the client was so grateful that every year he sent as a present the amount of the defense. The constitutional convention, now in session in Illinois, has declined to pass the resolution to instruct the legislature to provide for the revision and codification of the laws and the adoption of codes of civil and criminal procedure. We understand that this result was brought about mainly by the opposition of the members of the bar to the proposed reform. We can very well understand the inconveniences attending a change from a system to which one has become used no matter how absurd and technical- to a new and radically different system; but we had supposed that the members of a liberal profession would be themselves sufficiently liberal to countenance any reform likely to result in general good. The Chicago Tribune suggests that the maintenance of the old system operates as a "protection" to the lawyers of Illinois against the importation of lawyers from New York, Kansas, Wisconsin, Iowa and other states, where a code has been adopted. While we do not believe that this has been a moving cause of the opposition, yet the result is as stated by the Tribune. Any competent lawyer, after studying and practicing under the code, must waste a deal of time on going to a state having the old system in the study of points and proceedings which he has not only forgotten or never known, but which he has learned to despise. In the examination of titles to real estate, one of the most annoying difficulties that meets one is to discover the existence of what is known as the right of dower. Every other claim affecting the title to realty must, and the juice of the vine a dangerous drink, but can the courts of the Christian church condemn either the publican or the wine? The beneficial results of the New York Bar Association are beginning to make themselves manifest, even thus early. At the recent examination of candidates for admission to the bar, the committee, unlike most committees of the kind, rejected a number of applicants, and reported their reasons for so doing to the court, with some suggestions as to the manner of to secure its possessor against the acts of those through whom he derives it, be entered in the public records. But the claim of dower needs no such notice. A private contract without form, made in the presence of unknown witnesses, and then concealed from the public whose property rights it affects, is sufficient to create the lien; and against the inchoate lien runs no statute of limitation, but it may lie hidden for a generation and spring up to vex and rob innocent purchasers. Now, while we are taking away from married women the disability thrown around them by the feudal law, would it not be well to place upon them some of the liabilities and duties of their fellow-conducting examinations, which are worthy of concitizens. The newer states have, many of them, wisely modified the statutes relating to dower, but in New York it exists to-day in the unchanged form of the common law. While we would not deprive the widow of her rights, we believe the public should demand that, if she desires to secure those rights, she must do it by giving to those liable to be affected by them some intimation of their existence. A simple notice, properly authenticated and filed in the office of the registry of deeds, would be sufficient. This act would cause her little trouble, and would save purchasers of real estate much vexation, and oftentimes much loss. cen We have watched with interest the progress of two trials before an ecclesiastical tribunal. In one the accused was, by the prosecution, claimed to be guilty of the heinous offense of preaching in the chapel of another order of christians, without leave of his presiding officer first had and obtained. He was, of course, convicted, and, we believe, censured suring being an ecclesiastical punishment equivalent in the church to imprisonment in the state prison under the rules of our municipal law. We believe, however, that the prisoner undergoing that sentence still lives a worthy worker in the cause of that MASTER to whom he has devoted the best efforts of his life. The other trial, in which the same punishment was inflicted upon the criminal, but under another dispensation, occurred in consequence of a minister so far forgetting the ordinances of a portion of his church as to indulge in the potation known as gin and milk. It is with no desire to cast reproach upon the religious faith of any one that we speak concerning these things. The church sees fit, in imitation, we believe, of the customs of men, to establish a tribunal wherein shall be determined the differences arising between its members. The solemn ceremony of a trial is gone through, but before men already concluded as to their verdict. It may not be the duty of the legal profession to intrude upon the deliberations of a body whose decisions are founded upon a law higher than the enactments of any human assemblage. But when we see the trifling acts of good men taken up and made a matter of public scandal, we cannot forget to call the attention of the ecclesiastical court to the action of the Man who supped with publicans and sinners, and who did not hesitate at the marriage feast in Cana of Galilee to produce, by his miraculous power, a drink whose excellence surprised and delighted men familiar with the rich wines of that fertile country. The publican may be a poor companion, sideration. The following is from the report: Such examination was had upon the various subjects specified in the second rule of this court. It disclosed the fact that there was great inequality among the applicants in the extent and thoroughness of their studies. Some of them were well versed in the principles of the law; others had confined their studies to particular subjects, and stated the fact with frankness. Others, perhaps from timidity, seemed to have no knowledge of any portion of the law. Under these circumstances it is not possible for the committee to say, in the language of the rule already referred to, that every "applicant has sustained a satisfactory examination." In addition to this, and in justice to the applicants themselves, a distinction should be made between knowledge and ignorance; and unless an examination is to be considered purely formal, some recognition and privilege should be accorded to the former. Besides, a profession which calls itself, and is known as, a learned profession, should, for its own sake, take care that its reputation is not diminished by admissions to its ranks of those who are unlearned in the law. Our profession owes a duty also to the public, that those whom it authorizes to bear the honored name of attorney and counselor, and thus asserts their ability to protect life, liberty and property, should have at least some knowledge of legal remedies, to whom they are to be afforded, and the methods by which they are to be pro cured. For these reasons the committee have been obliged to discriminate between the various applicants. Those who are named in the annexed list the committee certify to have sustained a satisfactory examination upon the various subjects upon which they were required to be examined, and they recommend them as worthy of admission as attorneys and counselors of this court. The committee respectfully recommend that the rule which requires the examination to be in open court should be rescinded, and that in lieu thereof each applicant should be required to submit to a private examination, separate and apart from other applicants, before an examining committee. Such an examination, it is believed, will be more satisfactory to the applicant, as it would be, of necessity, to the committee. We print, in another column, the special message of Governor Alcorn to the Mississippi legislature, which proposes a novel method of dealing with the question of insanity in cases of murder, manslaughter, and the like. He recommends a law providing that in cases of the character mentioned, where insanity is relied upon as a defense, such defense must be specially pleaded under oath of the attorney or of some other competent person, and that the issue thereon shall be tried separately by a court of chancery. In the cases mentioned, if the question of insanity is raised before the committing magistrate, that magistrate, if he hold that the proof has shown a pre sumption of insanity, coupled with a presumption of murder, manslaughter, etc., shall order the accused to be committed to jail to await the examination before the chancery court. The prisoner being, in that event, presumed to be insane, he is to be denied the privilege of bail; is to be deemed incapable of making an oath, and is not to be removed by a writ of habeas corpus, In the event of the chancery courts deciding the accused to be not insane, the trial of the indictment is to go forward to the exclusion of that plea; but in case such court shall decide affirmatively on the issue, the accused is to be confined in the part of the lunatic asylum set apart for the dangerous insane. In the latter event, the accused shall not be set at large until there shall be furnished most undoubted proof showing a "soundness of mind undisturbed by any aberrations for periods graduated with a view to the gravity of the consequences contingently involved to the public by a premature release" — the period for murder being five years. OBITER DICTA. When women come to sit in the jury box, possibly infants may get to be criers in court. It has been decided when a man so far forgets himself as to bite off a portion of another individual's nose, he ought to be bound over to keep the piece. He is the same practitioner of whom it was said that he ought to have a writ of perpetual scire facias served upon him so as to make him to know something! An Irishman sent to the Wisconsin state prison was asked what trade he preferred to learn. He said that if it was all the same to them he preferred to be a sailor. A third rate lawyer rather amused the court, the other day, in discussing a point upon failure to pay purchase money in the sale of land, etc., by remarking upon that fundamental principle of equity: "No pay no trust!" Judges who try “railroad cases," with passes in their pockets, should ponder over that passage of the Scriptures which declares that "a gift perverteth the ways of judgment." A lawyer had an Irish client named McMinimys, one of whose cases was non-suited. The excuse he offered was that the court overlooked his rights. "In other words I found," said he, "that de McMinimys non curat lex." Judge Story and Edward Everett were once the prominent personages at a public dinner in Boston. The former, as a voluntary toast, gave the following: "Fame follows merit where Everett goes!" The gentleman thus delicately complimented at once arose, and replied with this equally felicitous impromtu: "To whatever height judicial learning may attain in this country, there will always be one Story higher." We give elsewhere a special message of the governor of Mississippi, concerning the plea of insanity as a defense to an indictment for a crime. This plea is usually set up in answer to a charge of murder. We have known the plea of moral insanity urged in behalf of forgers; but the lower grade of criminals, such as hen stealers and vagrants, have not as yet urged it. In the case of the inferior transgressor it is safer to have committed the offense than to be known as crazy. A few months' confinement answers the one, the other is the reproach of a lifetime. But when the crime which demands the shedding of man's blood is clearly and conclusively proved, the plea of insanity at the moment or instant gives a jury an excuse for the acquittal of a murderer. We do not wish to shut out the defense of insanity, but we believe that the person who is so far gone in mind as to deliberately kill a human being is not the one to walk without check the streets of our cities. The insane impulse may have passed away with commission of the terrible deed, but who can say at what moment that impulse may return. The way to test insanity is by the careful investigation of experienced men, and if the criminal be found insane it is the duty of the state to guard its members against his acts. Governor Alcorn, in his message, suggests a law to meet the difficulty which is worthy of the consideration of the public as well as of the profession. We should not inflict unnecessary suffering upon an individual bereft of his reason, but restraint is required when the mind is so far gone or disturbed as to cause one to do an irrepar- not a proper joinder of parties." able injury to his fellow. But we all know the defense of insanity to be, in most cases, a humbug, and that were it certain to bring upon the criminal a prolonged confinement we should not see it so frequently advanced. Let it be once understood that when a man has so far lost his reason as to unrestrained shoot down a human being, he must be placed beyond the reach of the habeas corpus act. We may thereby possibly sometimes do a wrong to some one, but our streets will be safer, and some fewer murderers will escape the gallows. Another instance is that of a client who said he had an eye witness that knew all about the transaction in dispute, only he was incompetent to testify. On being asked the reason, the answer he gave was: “Oh, because he is a butcher!" This ridiculous idea probably originated in some reference to an old rule of law once in existence in England, whereby butchers were excluded from the jury in capital cases. It was thought they might be hardhearted from their occupation. In an assault and battery case (woman the cause) the defendant's attorney, in his address to the jury, made use of the expression "that on several occasions when the plaintiff had approached too near the lips of the damsel she had always demurred." "On what ground," interrupted West, the plaintiff's counsel, and somewhat of a wit, "that the facts were not sufficient to constitute a cause of action?" "No, sir," was the reply, "but that there was Some people have very queer notions about what is and what is not competent evidence. A man, who was about to go upon the stand as a witness, was telling counsel what he knew of the case, and remarked: "I saw A strike him, but I suppose I can't testify to that?" " Why not?" he was asked. “Because," was the reply, "I was looking out of the window, and I believe they don't allow you to swear to what you see through glass, do they ?" He was assured that as long as it was not through the bottom of a tumbler that the view was had, it might be given in evidence. When General was a young man, a student in his office named W. thought he would apply for admission. The general tried to dissuade him, as W. really knew no law, but had devoted his two years to literature, in which he was greatly proficient. W., however, went before Judge S, who probably never opened any book other than a law book since he left school, unless it were the bible, or an almanac. The judge was a practical, hardheaded lawyer, and there he stopped. The examination began, and W. floundered around to the astonishment of the judge and the infinite amusement of the general, who was the only other person present. The judge resolved, as a grand finale, that he would blaze away at the presumptuous youngster with the "rule in Shelley's case." "Oh, yes, that is when a man is an infidel and an atheist, and the chancellor takes his property in charge for his children," said the applicant, with a gleam of satisfaction in marked contrast to his previous look of anxiety. Judge S was aghast at this reply. He might have hurled a volume of the statutes near by at the head of poor W., had not the general quickly interrupted: "The trouble is, gentlemen, neither of you ever heard of the other's Shelley!" HARRISON V. THE NEW JERSEY STEAMBOAT COMPANY.— Supreme Court, First District, General Term, April, 1870. -The defendant received, at the city of Albany, in the early part of December, 1865, a trunk, which is the subject of this action, with other goods belonging to the plaintiff, brought them safely to New York and landed them on its pier. The plaintiff claimed to have seen all her goods, including the trunk, on the defendant's dock. About a week after their arrival one load was sent to a public warehouse, the remainder, including the said trunk, at the request of the plaintiff, at her risk and without cost of storage, remained on the defendant's dock during the winter. In the spring, when navigation opened, the trunk was lost to both the plaintiff and defendant, until at a subsequent period it was found in a baggage-room of the defendant on the dock where it had been placed for safe keeping. While in the defendant's possession there had been no marks on the trunk to distinguish it, and it was not identified by the plaintiff until after suit had been brought. The other goods had, in the mean time, been sent to a public warehouse, and were afterward received by the plaintiff. In an action to recover the value of the trunk, the court held that the defendant was not liable, either as a common carrier or bailee. TERMS OF THE SUPREME COURT FOR MAY. 3d Monday, Special Terms (Issues), Kings, Barnard. 3d Monday, Circuit and Oyer and Terminer, Albany, Hogeboom. 3d Monday, Circuit and Oyer and Terminer, Chemung, Boardman. 3d Monday, Circuit and Oyer and Terminer, Delaware, Balcom. 3d Monday, Circuit and Oyer and Terminer, Chautauqua, Talcott. 3d Monday, Circuit and Oyer and Terminer, Orleans, Daniels. 3d Tuesday, Special Term, Lewis. 4th Monday, Circuit and Öyer and Terminer, Sullivan, Peckham. 4th Monday, Circuit and Oyer and Terminer, Onondaga. 4th Monday, Circuit and Oyer and Terminer, Genesee, Daniels. 4th Monday, Circuit and Oyer and Terminer, Niagara, Marvin. 4th Tuesday, Circuit and Oyer and Terminer, Plattsburgh, Bockes. Last Monday, Circuit and Oyer and Terminer, Otsego, Parker. Last Monday, Special Term, Corning, Johnson. The committee appointed at the last general term of the supreme court at New York to examine applicants for admission to the bar, have reported that only thirty-eight out of a class of seventy-seven are sufficiently qualified to entitle them to practice. COURT OF APPEALS ABSTRACT. Emerson successors, etc. v. Booth and another. This court has repeatedly held that it will not consider any objections not made on the trial, unless it is one that could not be obviated. A party should be required fairly to apprise his adversary and the court upon the trial of the objections upon which he relies, and the grounds of such objections. Opinion by INGALLS and GROVER, JJ. Mack v. Patchin. The measure of damages in an action against the vendor for breach of a contract for the sale of personal property is the difference between the contract and the market price. But the same rule has not been applied against the vendor or lessor of real estate. Ordinarily, in an action against the vendor of real estate for breach of covenant of warranty the vendee can recover only the consideration paid and interest for not exceeding six years; and when the contract of sale is executory, no deed having been given, in cases where no part of the purchase money has been paid, the vendee can recover only nominal damages; and in cases where purchase money has been paid he can recover the purchase money, interest, and nominal damages. In an action by the lessee against the lessor for breach of covenant for quiet enjoyment, the lessee can ordinarily recover only such rent as he has advanced, and such mesne profits as he is liable to pay over; and in cases when the lessor is sued for a breach of a contract to give a lease or to give possession, ordinarily the lessee can recover only nominal damages and some incidental expenses, but nothing for the value of his lease. These rules must be regarded as settled in this state; though there are cases that are either exceptions to or not within the rule, as when the vendor is guilty of fraud, or can convey but will not, either from perverseness or to secure a better bargain, or if he has covenanted to convey where he knew he had no authority to contract to convey, or where it is in his power to remedy a defect in his title, and he refuses or neglects to do so, or when he refuses to incur expenses which would enable him to fulfill his contract; in all these cases the vendor or lessor is liable to the vendee or lessee for the loss of the bargain, under rules analogous to those applied in the sale of personal property. Where an action was brought by a lessee against a lessor for failure of covenant for quiet enjoyment, the lessee having been evicted by a purchaser at a mortgage foreclosure sale of the premises, held, that the measure of damages was the market value of the lease at the time of the eviction, less the aggregate amount of rent which would accrue during the residue of the unexpired term. McNaught v. McClaughry, executor, etc. One Abram McClaughry, for a valuable consideration, made his promissory note to the plaintiff, and at the time of delivering the same promised and agreed, to and with the plaintiff, that he, Abram, would procure his father to sign said note as his surety, if, at any time, the plaintiff should deem himself insecure, or should desire further security, and the plaintiff accepted the note under such agreement. Shortly after, and after the note had become due, the plaintiff returned the note to Abram, with the request that he would procure his father, the defendant's testator, to sign the same as surety. Abram procured his father's signature, and returned the note-no new consideration having then passed between the parties. Held, that the defendant was liable; that the redelivery of the note to the plaintiff-signed by the father, after it was first due was a new agreement upon a present and valid consideration, and obligatory upon all parties. Held, also, that Abram, having originally agreed with the lender that he would obtain the new indorser, and had obtained the money upon the faith of that promise, then his finding the additional indorser, was based upon a valid consideration, and the indorser was held by his signature. Opinion by HUNT and FOSTER, JJ. DIGEST OF RECENT AMERICAN DECISIONS. SUPREME COURT OF CALIFORNIA.* GUARDIANS. 1. At common law. -There were four kinds of guardians at common law: by nature, for nurture, in socage, and in chivalry. Lord v. Hough. 2. Testamentary guardians. — Guardians in chivalry were abolished and testamentary guardians substituted by statute 12, Car. II, c. 24, and made to take precedence of all other kinds of guardians. Ib. 3. Like all other guardians, the testamentary guardian was subject to the supervision of the court of chancery, and could be removed for cause. Ib. 4. Power of the court of chancery over guardians. — Guardians of all kinds are trustees, and for that reason were subject to the supervision and amenable to the orders of the court of chancery. Ib. 5. The power of the court of chancery over guardians is no greater than it is over other trustees, and it cannot therefore remove a guardian except for good cause shown or apprehended. Ib. 8. Guardians by the statute of this state. - Under the statute of this state the power to appoint guardians is vested, first, in the father; second, in the mother; and third, in the probate court. Ib. 7. Under the statute of this state a testamentary guardian has only the powers of a probate guardian, and cannot, therefore, take the personal custody of the ward so long as there is a mother who is competent, willing, and worthy to have the custody and tuition of her child. Ib. 8. If the father dies, having appointed a guardian for his children by his last will and testament, but leaving a widow who is a qualified and fit person to have the personal custody of her children, such widow is entitled, if she so desires, to the personal care and custody of her children. In such case the power of the testamentary guardian only extends to such special directions as the father may have given in his will with reference to the education and settlement of his children, and the care and management of their property, and does not include the personal custody of the children, if objection thereto be made by the mother. Ib. 9. L. being the father of three children, aged respectively eight, six, and four years, made his will, by which he devised the custody of his children to his mother in these words: "The personal care, custody, and control of my said children I do hereby confide to my dear mother, solely, except in such cases as my said trustees and executors may deem contrariwise for the purposes of education," and died, leaving a widow who was in all respects a fit and proper person to be intrusted with the personal care and custody of her children. In an action by the widow against the testamentary guardian and executors of L. for the custody of the children, it was held, that, under the statute of this state, the widow's claim to the personal custody of the children was superior to that of the testamentary guardian. Ib. HOMESTEAD. 1. The homestead represents the dwelling house of the family and necessary quthouses of every kind, and need not be in a compact form, and may be intersected by highways. It is not limited as to quantity, the only limitations being as to its use and value. The homestead dwelling house may also be used as a place of business by the family. Estate of Delaney. 2. Tests of Homestead.-The homestead and the tests by which it is ascertained are the same whether the question arises between a husband and wife, or one of them and a vendee, a mortgagee, a creditor, or the heirs of the deceased husband or wife. Ib. From Sumner Whitney, Esq., Law Publisher, San Francisco. To appear in 37 California Reports. 3. Value of homestead. If the homestead land increases in value after the filing of the declaration, so as to be worth more than five thousand dollars, the same will be decreased in quantity pro tanto. Ib. 4. The declaration of homestead is not evidence of the value of the homestead, even if it states the value; and if the declaration describes a tract of land worth more than five thousand dollars, the actual homestead will be enough of the tract described, including the dwelling house, to come within said value. Ib. 5. Setting off homestead to surviving wife. The surviving wife inherits the actual homestead, that is, the dwelling house and sufficient land to be worth five thousand dollars. This value is that which the land bore at the time of the husband's death, and not what it bore at the time the declaration was filed, or at any previous time. Ib. 6. When the surviving wife petitions to have the homestead set off to her, she must show to the probate court what was the homestead at the time of the husband's death, and what was its value at that time, and the court should restrict the quantity of land set off to her to an amount worth five thousand dollars, or less, regardless of the quantity described in the declaration of homestead. Ib. 7. In such proceeding, it is not sufficient for the wife to prove that at the time the declaration was filed, several years before the husband's death, the homestead described in the declaration was worth less than five thousand dollars. Ib. INJUNCTION BOND. 1. An order made to the court, dissolving an injunction, without assigning the grounds on which the dissolution was granted, is, prima facie, an adjudication that the plaintiff was not entitled to the injunction, and sufficient to enable him to maintain an action on the injunction bond. Fowler et al. v. Frisbee. 2. Parties plaintiff in suit on injunction bond. - If several parties are severally in possession of and cultivating in separate parcels a tract of land, and are sued jointly in ejectment to recover possession of the whole tract, and an injunction is obtained restraining them jointly from taking off the crops, these parties cannot maintain a joint action for damages on the injunction bond, provided their damages are not joint. They can maintain a joint action for such damages only as are joint, such as attorney's fees. Ib. INSTRUCTION. 1. Estoppel. On the trial of an action for the alleged trespass of defendants on the plaintiff's mining claim, in which the title to the locus in quo constituted the main issue, the court gave the following instruction to the jury, viz: "If the jury believe from the evidence that plaintiff, more than five years prior to the commencement of his suit, in good faith, and under a claim of right, entered into the possession of said disputed ground, and have continued in possession thereof, and expended labor thereon (with the knowledge of defendants, ✶✶✶ they making no objection thereto), and that defendants have not forbidden plaintiff's possession so acquired, then the plaintiff is entitled to a verdict." Held, that this instruction, as an abstract proposition, fails to state the essential elements of an estoppel in pais, and was improperly given. Maine Boys' T. Co. v. Boston T. Cb. 2. Possession of mining claim. — In such case, where it ap peared that the boundary line between the plaintiff's and defendant's mining claims had been in dispute for several years- the locus in quo being embraced between the adverse lines claimed by the parties respectively- the court |