2. Opinion of witness.-In an action for mason work upon a wall, where the defense was based on the alleged unskillful construction of the wall, a question put on the examination in chief of a witness for defendant (not an expert), "What was the condition of the wall at the time you examined it?" held, not to call for witness's opinion as to the character of the work, but to be admissible. 23 Wis. 3. On sale of goods.-Defendant's brothers, in New York city, wished to purchase goods of plaintiff there on credit, and proposed to give their note at four months with defendant's indorsement; and plaintiff agreed to these terms. Defendant, however, applied to plaintiff to change the arrangement, stating that he did not wish to indorse his brothers' note, because all his dealings were in cash, and proposing that plaintiff should deliver the goods to his brothers and take their note, and that he would call and pay the amount in cash, less the usual cash discount, and would take the note himself, but stating that he did not wish his brothers to know of the arrangement. Plaintiff assented, and delivered the goods to defendant's brothers, and took their note, made payable to their own order, and indorsed by them, the note being so drawn in order that it might be delivered to defendant without plaintiff's indorsement. An entry was made in the sales book as of a sale to defendant's brothers, showing the articles sold, with weights and prices, but not showing any charge against said brothers. Defendant did not call and pay the cash, and plaintiff's clerk wrote a note addressed to him at his brothers' place of business, requesting him to call "and indorse the note," making the request in that form, so that if the letter fell into the hands of defendant's brothers, they would not be informed of the new arrangement. Plaintiff afterward requested defendant either to pay the cash or indorse the note; and, subsequently, having notified defendant that he looked to him for payment, and requested him to remit, and he having neglected to do so, and requested plaintiff to call upon his brothers for payment, plaintiff presented the note to said brothers at maturity, and (payment not being made) notified defendant that it was not paid. Held, that, upon evidence tending to establish these facts, it was for the jury to determine whether the goods were not sold on defendant's credit; and it was error to nonsuit the plaintiff. Oothavt v. Leahy, 23 Wis.

4. In an action upon a note. - In such action, under a counterclaim for money had and received, defendant cannot prove payment of usurious interest and have the same allowed, without having alleged specifically the facts showing usury. Martin v. Pugh, 23 Wis.

EQUITY.

Interference with judgment. —The fact, that a party to a suit at law (or his counsel) was surprised at the ruling of the appellate court (holding that the reference of the cause to the judge of the court operated as a submission to arbitration, and refusing to review his decision), affords no ground for equitable interference with the judgment. The Farmers' Loan and Trust Company v. The Walworth County Bank, 23 Wis.

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ESTOPPEL.

1. In pais. In an action to compel defendant to account to plaintiffs for money subscribed and paid by them, and which he, as their agent, was to invest in lands to be owned by the subscribers as a company, the defendant is not estopped from denying that he has received the whole amount of said subscriptions, by the fact that in a report made to the subscribers he stated that he had received the whole; no one of them having advanced any money or changed his position in consequence of such statement. Collins v. Case, 23 Wis.

2. As to boundary line. To estop A from denying a boundary line orally agreed upon between him and B, it is not necessary that he should have intentionally made false statements to B, by which the latter was induced to put

improvements on his (A's) land; nor that, knowing his rights, he should have agreed to a line by which he relinquished a part of his land to B; but he is estopped where, understanding that there is uncertainty about the true line, he agreed to the one fixed, and allowed B to erect valuable improvements, which B would lose but for such estoppel. Gove v. White, 23 Wis.

HIGHWAY.

The land of one person, subject to a public easement as a highway, cannot be used by another person as a place to pile wood or store goods. Orton v. Harvey, 23 Wis.

HUSBAND AND WIFE.

1. Conveyance of husband to wife. — A conveyance by husband to wife of the homestead, which is exempt from execution, cannot be considered fraudulent as to creditors. Pike and others v. Miles, 23 Wis.

2. Voluntary settlement. - Where a voluntary settlement by husband on wife (of land other than that so exempt) was not unreasonable in its character in view of the property and situation of the husband at the time, and there was no fraudulent intent in fact, it cannot be impeached by subsequent creditors. Id.

In actions for trespass.-To authorize an injunction under section 219 of the Code, the complaint must show the plaintiff entitled to an injunction as ultimate relief; and that a present preliminary injunction is necessary to avert intermediate injury. The injury alleged is a mere trespass, and a mere trespass is insufficient to authorize an injunction. "The principle of injunctive relief against a tort is, that whenever damage is caused or threatened to property, admitted or legally adjudged to be the plaintiff's by an act of the defendant admitted or legally adjudged to be an evil wrong, and such damage is not adequately remediable at law, an injunction may issue against the commission or continuance of the wrong." Thus three conditions are essential to injunctive relief against trespass: First, admission or adjudication of plaintiff's right; second, admission or adjudication of the defendant's wrong; and third, inadequacy of a remedy at law. If the trespass amount to an actual ouster, it is remediable by ejectment; if it fall short of ouster, then by trespass; and in neither of these cases will an injunction lie (Thomas v. Oakley, 18 Vesey, 184). There must be some special equity in the case, so as to bring the injunction under the head of quieting possession, or preventing irreparable injury, or inadequacy of compensation in damages (Livingston v. Livingston, 6 Johns. Ch. R. 497). That an injunction will not issue when the injury is remediable by damages, see Marshall v. Peters (12 How. 218); and it well establishes that it will not issue to restrain an apprehended trespass (Mayor of New York v. Conover, 5 Abb). N. Y. Superior Court, Ep. T., 1869, Gentel v. Arnaud, N. R.

JUDICIAL POWER.

Consultation of judges. At the common law, as well as by the statute, where a power, authority, or duty is confided to three or more persons or officers, and which may be performed by a majority of such persons or officers, all must meet and confer, unless special provision is otherwise made. The rule of the common law was applied only to persons or officers having a public duty to perform; in matters of a private nature, it required the whole body to be unanimous.

Whether the statute was intended to apply to judges of courts, quære.

To make such application would lead to differences of opinion in determining the meaning of statute, as to what would constitute a meeting of all.

Upon a motion to set aside a decision made by two judges, the third not having been consulted, and there not having been any meeting appointed, or held, for conference, held, in the doubt of the application of the statute to judges of courts, that the decision should not, for the reason stated, be regarded as irregular. But, as the order entered upon the decision was otherwise irregular, it should be set aside, and the appeal left to be decided by the justices who heard it. The propriety of consultations and conferences in relation to questions which a court is to decide, illustrated and recommended. N. Y. Super. Ct. Gen. T., 1869, Parrott v. The Knickerbocker Ice Co., N. R.

LIBEL.

Against Senator. - A publication by defendant states that a certain railroad project, important for the interests of Milwaukee, and requiring a grant of authority from the legislature, was opposed by a combination, of which one M. was at the head, and that what was most remarkable of all was, that the project was opposed by certain members of the State senate, including the plaintiff, and adds: To those who know that M. is rich and unscrupulous, the reason why this is so need be no great secret. But it is a matter for the people, who are misrepresented by those faithless senators, to become enraged and apply a remedy. That money has been used to effect some of these railroad laws, we know. We have names, amounts and dates, so that there can be no mistake. How long shall the best interests of our city and our State be trifled with, and our citizens misrepresented by faithless and selfish senators ?" etc., etc. Held, that these words charge plaintiff, in his capacity as a senator, with having been induced by pecuniary considerations to betray his public trust; and they are prima facie libelous. Wilson v. Noonan, 23 Wis.

MORTGAGES.

Subrogation of rights of.—To prevent an administrator's sale of the real property to pay debts of the estate, one J. agreed with H. and his wife (said wife being one of the heirs, and then supposed to be sole heir), and one P., who held a mortgage lien upon said property, that he (J.) would advance money to pay the other debts and also pay the amount of said mortgage, and take an assignment thereof, and a mortgage from H. and wife on all the real estate of which the intestate died seized, as security for the moneys so advanced. The agreement was executed in other respects, and the moneys so advanced actually applied to the payment of debts of the estate; but instead of an assignment to J., P. executed and delivered to J. a satisfaction piece, which recited that the money was advanced by J. At the same time P. delivered the mortgage and note to J. to be kept by him. Afterward J. assigned and transferred them to A. with the note and mortgage from H. and wife; and A., after the several obligations were due, demanding payment, H. applied to plaintiff to advance the money, representing that his wife was the sole heir, or if there were others they could not have the land without paying the claims then due, as they were for moneys owing by the intestate; and plaintiff advanced the money, taking an assignment from A. of all the securities held by him, and also a note from H. and wife secured by their mortgage on the same land covered by the mortgage of P. It was afterward found that there were several other heirs of the estate. Held, that plaintiff was entitled to be subrogated to the rights of P. under his mortgage, and to have the satisfaction thereof vacated. It was no objection to granting this relief, that plaintiff had acquired an administrator's deed to said real property upon a sale which was invalid. Plaintiff was entitled to have the money paid into court by him on such invalid

sale refunded. After the payment to him of the amount secured by the mortgage to P., plaintiff should share with the other creditors of the estate ratably for the remainder of the amount advanced by him. Morgan v. Hammett, 23 Wis.

MARRIED WOMAN.

Right to employ husband as laborer on real property, and agent to invest her money. — A wife owning land as her separate estate may cultivate the same by means of the labor of her husband and their minor children, and the legal title to the products and proceeds thereof will still be in her, so that they cannot be levied upon under an execution against the husband. Feller v. Adam, 23 Wis.

NAVIGABLE RIVERS.

Navigation by rafts. It is no defense to an action for injuries to a raft, occasioned by improper obstructions at a dam, that such a raft could not have navigated the river at all before the dam was built. A provision in an act authorizing a dam across a navigable river, which requires the persons maintaining it to keep "a good and sufficient slide, that will admit the passage of all such rafts as may navigate said river," held to refer to such rafts as could and should navigate the river after its condition should be improved by the dam. Volks v. Eldred, 23 Wis.

NAVIGATION.

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1. Rights of navigation. — A city ordinance or an act of the State Legislature, forbidding vessels to drag their anchors in a navigable stream, would be invalid as far as it interfered with the rights of navigation secured by the ordinance of 1787. The Milwaukee Gas Light Company v. The Schooner "Gamecock," 23 Wis.

2. Injury to gas pipes in bed of river. —The right of a city gas light company to lay its pipes across the bed of a navigable river within the city is subordinate to the right of vessels to the free navigation of such river. Ib.

NEGLIGENCE.

1. Partners as tort-feasors; action against one.-Plaintiff having been injured by a collision of teams, and defendant's team not having given a part of the middle of the street as required by the statute, it was not error to refuse an instruction to the effect that, if plaintiff's driver saw defendant's team while at a considerable distance, and from that time until they met, and there was ample and unobstructed space in the street on plaintiff's right to enable her team to pass safely, then the negligent or unskillful management of her team must have contributed to the injury, and she could not recover. The facts recited are not conclusive proof of negligence; especially as plaintiff had a right to presume that defendant would comply with the statute. Wood v. Luscomb, 23 Wis.

3. In crossing railroad track. — In an action for the killing of plaintiff's intestate by defendants' trains, while she was attempting to cross their two adjacent tracks, it appearing that the deceased must have seen and known that two trains were approaching on said tracks side by side, and, with the exercise of any care, must have known that they were running at a much greater rate of speed than usual, and the circumstances were such as would have prevented any prudent person from attempting to pass, the court should have set aside a verdict for the plaintiff and ordered a new trial. Langhoff, Admr., v. Milwaukee and Prairie Du Chien R R. Co., 23 Wis.

3. Injury by act of fellow-servant. -When several persons are employed as workmen in the same general service, though in different parts of it, and one of them is injured through the carelessness of another, the employer is not responsible unless he had employed unfit persons for the service. O'Donnell v. Alleghany Valley R. R. Co., 59 Pa.

4. Who are employees. A carpenter working as such for a railroad company was carried on the company's cars to and from his work as part of his contract of hiring. He was not to be esteemed as employed in the same general service with the hands running the train or repairing the

track of the road so as to relieve the company from responsibility for injury to him from their negligence. Ib.

5. Duty of master. The master is bound to use ordinary care in providing suitable structure, machinery, tools, &c., and in selecting proper servants, and is liable to other servants in the same employment, if they are injured by his own neglect of duty. Ib.

A railroad company is bound to furnish a safe and sufficient roadway to its servants, as well as to others traveling over it. The remote negligence of servants as to the roadway will not excuse the non-performance of such duty. Ib.

If the substructure of a road be suffered to lie until it has become rotten and unsafe, it is the negligence of the company. Ib.

Casualty from such cause is not an ordinary peril which one taking service in the company is presumed to incur. Ib.

6. Riding in baggage car.- In a suit by an employee of a railroad company who held the relation of a passenger, the Court charged, that the baggage-car is an improper place for a passenger to ride; whether the rule against it was communicated to him or not, if he left his seat in the passenger car and went into the baggage-car it was negligence which nothing less than a direction or invitation from the conductor would excuse; such invitation should not be inferred from his having ridden there frequently with the knowledge of the conductor, and without objection. Held, to be error. Ib.

The conductor is the person to administer the rules of the company, and apply them according to the circumstances. The passenger-travel is under his directions and should conform to them. From the nature of his position he must exercise some discretion. Ib.

7. Injury to the person. Where there was evidence tending to show that a railroad train had come to a full stop, and that the persons waiting to get upon it were told to go on board by the persons in charge of it, and that the plaintiff below, in attempting to get aboard, was injured in consequence of the sudden starting of the train, it was not error to leave to the jury the question of the negligence of the parties. The Detroit and Milwaukee Railroad Company v. Curtis and wife, 23 Wis.

Nor were the facts that plaintiff below was told by the company's servants to get on the hind car, and that he was injured in trying to get on another passenger car, such conclusive proof of negligence on his part as to take the case from the jury. Id.

It was error to instruct the jury that if it appeared that in case the company had had an agent, wearing its badge, whose special duty it was to warn passengers not to go on board until the cars stopped, and to inform them into what cars to enter, etc., this would have prevented the injury, and that there was no such agent there, then defendant was guilty of negligence. Id.

8. Liability for injury to person from failure to erect fence.Where an infant of eighteen months gets upon a railroad track in consequence of the failure of the railroad company to erect a fence as required by law, the parents being in the exercise of ordinary care, the company is liable to it for the injury. Schmidt v. The Milwaukee and St. Paul Railway Co., 23 Wis.

9. Negligence, in case of a young infant. — An infant of that age is not itself capable in such a case of negligence that will defeat a recovery. Ib.

NEW TRIAL.

Where there is slight evidence to support the verdict, the appellate court will not interfere with the decision of the court below refusing a new trial; otherwise, where there is no evidence to sustain the verdict. Eaton v. School District No. 3, 23 Wis.

NOTICE OF ACTION.

Constructive notice. - Persons are not chargeable with constructive notice of an action after service of the summons

1. Agreement of freight agent to carry goods in specified time. - A railroad company will be bound by its freight agent's agreement to carry goods in a specified time, if it be a reasonable time. Strohn v. Detroit and Milwaukee Railroad, 23 Wis.

2. Non-delivery.-The carrier does not in such a case become an absolute insurer of the goods, but their destruc tion within the prescribed time by the act of God or of the public enemy will excuse non-delivery. Ib.

3. What constitutes such agreement.-A mere statement by the agent that the ordinary time for transportation over the proposed route is a certain number of days does not constitute an agreement to carry in that time. Ib.

4. Exception to instructions. Where the general charge consisted of about forty folios, defendant excepted generally; and also excepted "to the rejection of the instructions asked by it; to all that part of the charge wherein the instructions given at its request were in any wise qualified or against it; to all that part wherein the court commented on the evidence; and to all the remarks to the jury not relating to points raised or to the merits of the case." Held, that the exceptions were too general to raise any question except as to the correctness of the instructions asked by defendant and refused. Ib.

5. Railroad company as carrier-excuse for failure to transport. A railroad company receiving goods in this State, to be carried by its own and connecting lines to Buffalo, N. Y., held, not to be excused for a failure to transport to the end of its own line (at Detroit), and deliver, or offer to deliver, to the next carrier (the Great Western R. R. Co.), merely by the fact, which its agents knew, that there was a block of freight at Suspension Bridge (over the Niagara river), which created a block at Detroit, and the further fact that there was no room for the goods in the defendant company's depot at Detroit; especially where it is not clear that the general block of freight for the east at the bridge would have prevented the transportation of plaintiffs' goods to Buffalo. Whether a notice to defendant from the next carrier that it would receive no more freight of any kind from defendant, would have been a sufficient excuse, is not decided. McLaren and another v. The Detroit and Milwaukee Rdilroad Company, 23 Wis.

RECEIPTS.

How far conclusive. - There is a distinction as to oral testimony, between solemn contracts inter partes in writing executed and delivered, and receipts, the acknowledgment of one party only. Receipts, when mere acknowledgments of delivery or payment, are but prima facie evidence of the facts, and not conclusive: the facts may be contradicted by oral testimony. Law, in our

equitable administration of it, is as efficient to prevent the fraudulent use of an instrument as equity is to restrain. Batdorf v. Albert, 59 Penn.

REVIVOR.

1. Claims against estate. — The presentation of a claim to the commissioners appointed to adjust claims against an estate is the prosecution of a new remedy, and does not operate as a continuance or revivor of a suit to enforce such claim pending against the decedent at the time of his death. Jones v. Estate of Keep, 23 Wis.

2. Statute of limitations.—Where the statute of limitations has otherwise run upon the claim, therefore it cannot be allowed by the commissioners. Ib.

3. Revivor against personal representatives. - Where one of several defendants to an action on their joint and several obligation dies, it seems that the action may be revived against his personal representatives separately (under sec. 16, chap. 101, and sec. 1, chap. 135, R. S.), but not against them jointly with the other defendants. Ib.

RIVER.

1. Change of channel. When the channel of a river has been gradually changing for years, by wearing away the bank on defendant's side, and by adding and forming accretions upon the opposite shore owned by plaintiff, by slow and imperceptible degrees, the channel as so changed must be regarded as the rightful and accustomed channel, for the time being as between the different parties. Gerrish v. Clough, 48 N. H.

2. Such accretions become the property of the landowner upon that side of the river, and are as much entitled to protection as his original inclosure. Ib.

3. In such case the defendant may protect his banks from further encroachment by rubbling or other means, provided it do not cause a change in the (then) accustomed channel of the river, to the material or appreciable injury of other riparian owners; but he has no right to build a dam, breakwater, or other obstruction in the stream, which will raise the water upon the plaintiff's land or wash the same away. Ib.

4. The questions in regard to the right of a reasonable use of the stream, or in regard to ordinary care and prudence, in erecting such dam or obstruction, do not arise in such case. Ib.

SALE ON EXECUTION.

1. Selling in parcels.-The objection that land was not sold in separate parcels at an execution sale cannot be taken after the time for redemption has expired, by the judgment debtor himself, by one holding a mortgage of the land, or by a purchaser of foreclosure of such mortgage. Raymond v. Holborn, 23 Wis.

2. Constructive notice. — A purchaser at a foreclosure sale takes with constructive notice of any prior sale on execution. Ib.

3. Right of purchaser. — Where, on foreclosure of a second mortgage, the prior mortgagee is made a party, and his mortgage is first paid, pursuant to the decree, from the proceeds of the sale, the purchaser takes his rights as against the lien of a judgment intermediate between the two mortgages. Ib.

4. The purchaser at the execution sale has a right to redeem by paying the amount of the prior mortgage, or his equitable proportion thereof, where the lands sold on execution are only a part of those covered by the mortgage sale. Ib.

SPECIFIC PERFORMANCE.

When the defendant was induced to make the contract by plaintiff's false representations to his injury, specific performance will not be enforced. Wells v. Millet, 23 Wis.

STATUTE OF FRAUDS.

Retention of goods by vendor as bailee of purchaser.—On a sale of chattels which, without delivery, would be void by

the statute of frauds, if the vendee constitutes the vendor his bailee of the goods, and the vendor thereafter holds them as such bailee, the delivery is complete, and the sale good as between the parties. Janvrin v. Maxwell, 23 Wis.

TITLE

Effect of notice - Gerthorne Bulkley v. I. Holly Platt et al.The doctrine in regard to effect of notice of prior incumbrances does not reach a title derived from another person, in whose hands it stood free from any such taint. A purchaser may safely purchase with notice, if he purchase from a vendor who himself bought bona fide, and without notice. The rule is necessary to enable a bona fide purchaser to sell his estate as security for its full value, and is well settled, and the exposition of the recording act in Vanderhemp v. Shelton, 11 Paige, 28, is correct, although a different opinion is expressed in Hoyt v. Hoyt, 8 Bos. 511. Sup. Cl. Sp. T., 2 dis.,1870, Bulkley v. Platt, N. R.

TRESPASS.

1. Measure of damages. For trespass in putting dirt upon plaintiff's lot, he is entitled to nominal damages, although the lot was benefited and not injured thereby; but he is not entitled to damages "equal to the cost of removing the dirt." The question, whether the dirt, in such a case, is a benefit or an injury, must be determined by the jury with reference to the use for which the plaintiff designed the lot, if that is shown. Murphy v. Fond du Lac, 23 Wis.

2. It was error, in such a case, to refuse evidence for defendant tending to show that the filling of the lot increased its frontage, though not connected with any offer to prove that such increase was a benefit. Ib.

3. The jury would be at liberty to apply their general knowledge to the determination of the question whether an increase of frontage adds to the value of a lot. Ib.

Lex Loci.-A note given in Illinois by a firm doing business in this state (place of payment not expressed), to take up a previous note executed in this state by the same firm, held to be governed by the laws of Illinois in respect to usury. The makers can avail themselves of the defense of usury only by pleading and proving the law of Illinois on that subject. There is no presumption that the usury laws of another state are the same as our own; especially when the latter are of a penal character. Hull V. Augustine, 23 Wis.

To recover usurious interest paid by him, the plaintiff must prove that he was legally liable to the defendant for the loan on which the interest was paid. Holmes v. Gerry, 55 Maine.

WILL.

Heirs of the body.-Devise to Matthew and Samuel, "and the heirs of their body," charged with keeping their mother for life and with certain legacies. "Matthew and Samuel have no privilege, nor can in no wise sell or dispose of the land during their mother's natural life, and then not without both be agreed to sell their parts; * * * but if either one of them dies wanting heirs of the body, the part that one owns falls to the other then, except he be married; and if both die before they marry, their estate is to be equally divided among all the legatees." Matthew and Samuel took an estate tail." Heirs of the body" are strictly and technically words of limitation, and can be converted into words of purchase only by a clearly expressed intention of the testator. An estate tail may be followed by a limitation over on a definite failure of issue, and, like a fee, may depend for its continuance on the performance of a condition or the happening of a contingency; but, when once created, it remains an estate tail until the happening of the contingency or the breach of the condition. Either a contingent remainder, or an executory devise limited after an estate tail is cut off by a deed, under the act of January 16, 1799, to bar the tail.Linn v. Alexander, 59 Pa.

All communications intended for publication in the LAW JOURNAL should be addressed "Editor Law Journal, Albany, N. Y.:" and the name of the writer should be given, though not necessarily for publication. Communications on business subjects should be addressed "WEED, PARSONS & Co., Albany, N. Y."

The Albany Law Journal.

ALBANY, JANUARY 22, 1870.

SOME BAR STORIES, OLD AND NEW.

Of course,

It is a curious fact, well known to members of the bar, and probably to all who are engaged in public speaking, that after applying itself continuously for several hours to an argument or an oratorical effort, the brain becomes suddenly incapable of going on, the supply of nervous matter is exhausted, and the speaker “loses his head." This will sometimes happen even to the best men, unless they are wise in time, and take advantage of the short breathing space allowed by the court in the middle of the day, for bench and bar to recruit their energies. there are some men who begin by losing their heads; witness the case of the nervous young counsellor, who, having thrice enunciated the words, "May it please you, my Lord, and gentlemen of the jury," was desired to proceed, with the assurance which the bench gave him that thus far he had the court wholly with him. But the process of losing head through over-long tension of the brain is liable to occur to the most experienced practitioner; and where judges will not give a man back the thread of his argument, and say, "If I understood you aright, sir, you were contending that," etc., etc., this liability may lead to disaster in the case.

There is a good story, never before published, which was told to the writer by one of the most eminent of living judges, illustrating this fact, and showing the readiness with which the want of brain power was apprehended, and opportunity given for recovering the equilibrium, on a celebrated occasion. Mr. Brougham (afterwards Lord Brougham) was junior with Mr. a leading counsel of the day, in a cause celebre that nearly concerned the royal family. The leader, oppressed with the responsibility of his charge, and weary with his exertions, had been addressing the court with close argument for several hours, when it was apparent to every one that his mind had suddenly ceased to act in unison with his speech. Mr. became flurried, stammered, and began to plunge, Brougham saw what had happened, and instantly rose, interrupted his chief, and addressed the court. Wearing upon his face an expression of great suffering, he assured their lordships of his deep regret at having to trouble them at such a time with a matter personal to himself. He did it most unwillingly, but he was sure their lordships would forgive him if they only knew the agony he was then enduring in his right ear by reason of the killing draught that rushed through "that door leading into the Common Pleas." He was nearly mad with ear-ache. What he should do if the nuisance continued he could not tell. Might he, in the interests of his clients, en24

treat the interposition of the bench? The bench condoled with Mr. Brougham on his suffering, and at once ordered measures to be taken to stop the draught. "That door leading to the other court" was shut, but still the draught came; windows were examined, and sand-bags were placed against the openings in them, till the nuisance was abated,- till a good quarter of an hour had been consumed,- till Mr. Brougham's leader had had time to recover himself. It is, perhaps, needless to add that the "intelligent junior" had not an ache or pain in all his great body.

It used to be said of Brougham that he slept onl once a week, viz.: from Saturday afternoon to Monday morning. Certain it is he was capable of undergoing the greatest bodily and mental fatigue, and, when occasion required it, could sit up night after night at work without appearing to be any the worse. This was no light matter, considering what was then the daily professional routine of a counsel in first-rate practice,—a routine to which few advocates would, or perhaps could, now submit. At nine A. M., at chambers; in court by ten; at chambers again by four for consultations; in hall for dinner at five; in chambers once more at seven, there to stay till twelve o'clock, and often later, preparing for court next day, or advising upon cases left for "counsel's opinion." Such was, in Brougham's time, the daily programme of a successful barrister's life in London. Circuit brought him briefs, but no relief from work, and that at a time when men had to ride round the circuit, and could not, as now, quietly read a whole bagful of briefs in the comfortable railway carriage, which transports them, without exertion or anxiety on their part, from London to York. Truly, there were giants in those days. Counsel are sometimes- not by any means so often as they deserve-answered by witnesses in their own style. It was not a bad reply, that made by a witness in the Grenville-Murray perjury case. One of the counsel, after pressing a witness who had given information to tell him what certain persons had said about his having given this information, added, "They said you had split, in fact;" but the witness, no way cast down by the insinuation, replied, "They expressed themselves in much more gentlemanly language than that."

This reminds me of a counsel who had been bullying a witness, and asked him how far he had been from a certain place. "Just four yards, two feet and six inches," was the answer. "How came you to be so exact, my friend?" "Because I expected some fool or other would ask me, and so I measured it."

The writer remembered a counsel who mimicked a witness to his great annoyance, and when the witness, who was a north countryman, pronounced the word "waters" as if it had been "watters," inquired of him whether in his part of the country they spelt "waters" with two t's. "No," said the witness, "but they spell 'manners' with two n's."

Dunning (afterwards Lord Ashburton) wanted to get out of a witness why he had taken up his residence in the verge of the court- that is, in the sanctuary-and after pressing him a good deal, elicited the answer that it was "in order to avoid the rascally impertinence of dunning."

Some counsel, who are adepts in the art of crossexamination, and who think it desirable to discredit