I desire to present to the notice of your readers, the following extracts from the proceedings of the Bar of Georgia on the death of brother members, as published in vol. 30, p. 1, Georgia Reports. There is a combination of the serious and ludicrous in these compositions that is highly amusing. As specimens of bar eulogy, they are unexcelled, certainly not equaled by similar productions outside of the State of Georgia. "In the face of active and able competition, he acquired, at first, a respectable practice, and finally attained to distinction. His success had been equal to that of the favored ones of his day. He had acquired fortune, friends, and the confidence of the public, and was the head of a large and amiable family. (He must have had great “acquisitiveness.") He left us at a time when the past yielded much for gratifying retrospection, when the present afforded the richest elements of happiness, and the future invited him to higher honors and ampler resources of enjoyment. All that he possessed, and all that he hoped for, could not stay the hand of the Great Destroyer. Silent, and sure, and remorseless, death heeds neither youth nor age; genius, learning, poverty nor wealth; honor nor shame; the tears of relatives and friends, nor the cold indifference of strangers. Nature shrinks from the darkness of the grave, but revelation pours into it her cheering light. In the midst of life we are in death, yet it is not all of life to live. (No, of course not, but to die). "Lawyers are a short-lived class. Frequent and thick, like Autumn leaves, they wither and fall. The fallen leaf, even in its decay, enriches its parent earth; so we, in death, may contribute, by our virtues, to the wealth of our common humanity. The law of love dwelt in his heart, and the milk of human kindness mingled with his blood. He had faults, else he had not been human." Mr. Justice Lumpkin responded as follows: "Well has it been said, my friends, that life is a fountain (or a water-spout), fed by a thousand streams that perish, if one be dried. It is a silver cord, twisted by a thousand strings, that part asunder, if one be broken. Frail and thoughtless mortals are surrounded by innumerable dangers, which make it much more strange that they escape so long, than that so many perish so suddenly at last. We are encompassed with accidents, ever ready to crush the mouldering tenement that we inhabit. The seeds of disease are planted in our constitution by the hand of Nature. The earth and the atmosphere whence we draw life are impregnated with death (!) Health is made to operate its own destruction (!) The soul that animates the body by a vivifying fire, tends to wear it out by its own action. Death lurks in ambush about all our paths. He belonged to that class of lawyers who rely more upon their clear perception of what is just and true, than upon books and cases-more upon principles than precedents. He invariably spoke for use, and never for display. (He spoke for his fee.) Had he lived in the degenerate days of the Stuarts, no temptation of power or place could have converted him into the cruel and remorseless tyrant, Jeffries, of whom it has been said, that "so he rode on horseback, he cared not over whom he rode." I regret that our lamented friend had not lived in the merrier days of the law, when more latitude was allowed than is considered, at this prim age, consistent with good taste. As late as Burroe's Reports, we find legal "truths severe" dressed in the fairy garb of verse. The last case of this sort is that of The parish of Shodwell v. The parish of St. Johns, Mopping. The judgment runs thus: "A woman having a settlement Quoth Sir John Pratt, "her settlement Living the husband; but him dead, Chorus of puisne judges: "Living the husband; but him dead, As late as the days of Lord Mansfield, it was not esteemed as unfitting the dignity of the court to indulge in pleasantry. Sir Fletcher Norton, in addressing the bench on some question of manorial rights, happened to say: "I can instance the point in our own person, my lord, for I have myself two little manors." When the old chief, interrupting him, with one of his blandest smiles, observed: "We are well aware of that, Sir Fletcher." 26. Reformed Church at Gallupville v. Schoolcraft. 33. Sheridan v. McCole. 76. Purdy v. New York & New Haven R. R. Co. 108. Kingsbury v. Westfall. 127. Dennis v. Coman. 135. Mosey v. City of Troy. 141. People ex rel. Markey v. City of Brooklyn. 165. Johnson v. Elwell. 172. Brooklyn Oil Refinery v. Brown. 186. Wylie v. Marine National Bank of New York. 187. Osgood v. Maguire. 188. Goetchues v. Matthewson. 190. Gregory v. Lindsay. 191. Smith v. City of Albany. 192. Young v. Phoenix Ins. Co. of Brooklyn. 263. Sanson v. Rose. 264. Place v. Minster. 265. Dennis v. Ryan. W. H. BENJAMIN, Clerk. The term commences on the 15th inst. A POETICAL PRISONER. A non-professional contemporary reports a case in the police court of New York city, and relates how & young man who was arrested for burglary exhibited a peculiar taste for rhyming. The following manuscript lines were found in a memorandum book in his pocket: Three sighs for life, for the bitter cup; Three heart wrung sighs for a wretch hard up; Art and luxury, reveling, mirth, Wealth from the farthest ends of earth, Seem as in mockery tempting spread, Round a shivering wretch lacking daily bread, Shelter and rest for an aching head. The justice held the unfortunate poet to answer in $2,000 bail. NOTES. Mr. A. Henry, of Pump-court Temple, in a letter to the London Times, has called attention to a discovery made by him a few days ago of a very rare book in the library of the Middle Temple. The work is a copy of the first nine books of the Code of Justinian with the gloss, published at Nuremburg in 1475 by Andrew Frinser and John Sensenschmid, and, accordingly, now within a few months of its 400th birthday. By some mistake the book appears in the catalogue of the library as a century younger. Mr. Henry adds that the edition of the first nine books of the Code by Peter Schoyffer in 1475 is generally considered the Editio princeps: but Schoyffer's edition preceded Sensenschmid's by only a few months, as Schoyffer's saw the light in January, 1475, and Sensenschmid's in June of the same year. A curious suit to decide on the sanity of an elderly lady of property has just been heard before the Civil Court of Paris. The Countess De Sommariva is a widow, aged seventy-three, without children, and possessing an immense property, including among other estates that of the Chateau of Champigneulles, near Nancy, where she resides. She appears to be of a weak mind, and for some time past to have labored under illusions, believing herself to be pursued by invisible beings, and a victim of constant persecution by them. She had fallen into the hands of a medical man Dr. Blain Des Cormiers, who by humoring her monomania, acquired a complete empire over her. In this he was assisted by a female named Herrest, the wife of a concierge, and who had become his mistress. He placed this woman with the Countess as attendant, and by that means completely isolated her from her friends after turning out all her old servants, some of whom had been more than thirty years in the family. This couple did not, of course, give their services gratu itously; the Doctor obtained from the lady sums of money estimated to amount to 50,000 francs a year, while the woman received a salary of 20,000 francs per annum, which she took care to have paid in advance. The orgies in which they indulged at the chateau also caused quite a scandal in the neighborhood. The relatives of the Countess, in order to protect her from those harpies, applied to the court for a verdict that she was not in her right state of mind, and incapable of managing her fortune. The judges, while declaring that her insanity was only partial, gave judgment depriving her of the administration of her pecuniary affairs, and ordering the assembling of a family council for the appointment of a guardian. There is in preparation an alphabetical index of cases decided by home and foreign judicatures which have been affirmed, overruled, commented upon, etc., in the Decisions of the Pennsylvania Courts. The work is by Boyd Crumrine; and the object of it is to enable the profession to determine the exact statutes of every case at home and abroad in the Pennsylvania Courts. This work will be invaluable to the Pennsylvania lawyer. Cluseret and the Swiss Times have been at law. He was engaged to write his souvenirs in the hope of giving that dull paper a little life; but the proprie tors, finding their paper likely to be shut out of France, got frightened; so they stopped short the publication of the Cluseret notions. He sued them for 162f. for copy already furnished and for 10,000f. damages for the loss of the money he might have made on copy to come. There was a contract, and the court held that the editors had fair opportunity to know what sort of literary material Cluseret would furnish; that they had stopped him and he was ready to go on. So he was judged right in his demand, and received a verdict; but not for 10,000f., as the court did not take him at his own valuation, but cut the damages down to 800f. A remarkable instance of the frequently asserted doctrine of French courts of law, that a man has no right to carry on trade in his own name when that name is manifestly used to induce a belief in the public mind that a new-comer is identical with an old established firm, has just been afforded by the judgment of the Paris Court of Appeals in case of Möet & Chandon v. Moet & Company. The well-known Epernay purveyors of sparkling champagne alleged that the defendant, a Dutchman from Maestricht, named John Frederic Moet (without the two dots over his name), lately came to Rheims for the express purpose of setting up a champagne house, and leading the public to believe that he was the real original house. It was in vain urged by counsel for the defense that "every man had a property in his own name; that Moet not calling himself Möet, set up at Rheims, and not at Epernay; and that his prospectuses and bottles set forth that his firm was established in 1872," whereas the old house of Möet is of half a century standing. The Court held that the public would not be aware of these distinctions, and was of opinion that the large business which "Moet & Co." had done within a very short time was in itself a proof that they must have been mistaken for Moet & Chandon. Accordingly an injunction was granted, and damages to the extent of 35,000f. LEGAL NEWS. The sheriffs in Texas recently held a convention at Corsicana, in that State. Colonel Whitley, chief of the secret service division of the treasury department, has resigned. Mrs. A. B. Lockwood, the female lawyer of Washington, is in Texas on an important legal mission. Ex-solicitor Banfield will resume the practice of the law in San Francisco. The law department of Howard University at Washington will open on the 16th inst. The decision by the Supreme Court of Wisconsin, on the application for an injunction to compel railroads to obey the Potter law, will not be delivered until the 15th inst. Chief Justice Waite is at Lynn, Conn.; AttorneyGeneral Williams is visiting his relatives in Webster, this State; Assistant Attorney-General Goforth has returned to Washington from his vacation, and Hon. A. F. Judd, of Honolulu, Attorney-General of the Hawaiian Islands, is at Geneva, in this State. The Supreme Court of California, on the 7th inst., in the habeas corpus case of the twenty-three Chinese women brought to San Francisco on the steamer Japan, decided that the State law which regulates such immigration is constitutional, and remanded the women to the master of the steamer Japan, to be returned to China. The treasury department has issued title thirtythree of the Revised Statutes of June 22, 1874, which contains the entire codified tariff. This work, which makes a small book of forty pages, will be sent to all customs officers, and is the final authority on all tariff legislation as it existed on December 1, 1873. The publication of this work was made necessary by the fact that the entire revision of the statutes cannot be published until December, if it is ready then. Commissioner Baker reports an extraordinary and most creditable amount of work in the invalid division of the pension office since the adjournment of congress in behalf of badly disabled soldiers, to whom special pensions were awarded by the act of June 18, 1874. In addition to the regular work, over 3,000 of these cases have been adjusted during the months of July and August, and in time for the payments now being made. This is extraordinary, and ought to be gratifying to those interested. The total number of cases adjusted in the invalid division for the same period was 6,782. A convention, appointed by the governor of Pennsylvania under the provisions of an act passed at the last session of the legislature of that State to suggest amendments to its constitution, is now in session in Philadelphia. There are present, Chief Justice Agnew, president of the commission; Hon. M. Williams, of Tioga county; Hon. B. H. Brewster; A. R. McClintock, Esq., of Wilkesbarre; W. H. Playford, of Fayette, and Wm. A. Wallace, of Clearfield - Attorney-General Dimmick being absent. The meeting is held with closed doors, and the commission will continue to hold sessions from time to time until the next meeting of the legislature. The act under which it was appointed provides that the commissioners shall determine whether any amendments to the constitution of the commonwealth are advisable or necessary, and prepare the same in proper form, and make return to the legislature at its next session. All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. Communications on business matters should be addressed to the publishers. The Albany Law Journal. ALBANY, SEPTEMBER 19, 1874. PERPETUATING TESTIMONY. There is a decision in the September number of Howard's Practice Reports, on this subject, which is a great surprise to us, and which we believe to be radically mistaken and calculated to mislead the profession. We refer to the decision of Judge Lester, County Judge of Saratoga county, in the case of Cheever v. Saratoga County Bank. The points of the decision are as follows: first, under the provisions of the Revised Statutes for the perpetuation of testimony (article 5, title 3, chapter 7, part 3), a party to an action has not an absolute right to examine a witness; second, the witness cannot be examined unless he is old, infirm or a non-resident, and third, the proceeding must be taken in good faith, and the judge applied to for the order of examination has a discretion to grant or refuse it accordingly. If Judge Lester is correct in his view of the law it is quite important to know it, and it will be a revelation to the compilers and revisers of our statutes, as well as to the profession at large. The title of the statutes in question is "Of Evidence." The first article relates to "taking, conditionally, the testimony of witnesses within this State." This provides for the taking of the testimony of any witness, in an action at law pending in any court of record, and commenced by the actual service of process or where the defendant shall have appeared in the action, where the "witness is about to depart from this State, or is so sick or infirm as to afford reasonable grounds for apprehension that he will not be able to attend the trial of such suit." If the officer is satisfied that circumstances require the examination in order to attain justice between the parties, he issues the order. The application may be defeated by the adverse party, showing that the witness is not about to depart from this State, or that he is not sick or infirm, or that the application is made collusively, to avoid his being examined on the trial of the cause. The deposition, if taken, may be read by either party on the trial upon proof of the witness' inability to attend by reason of death, sickness, insanity, infirmity, or continuous absence from the State. The fifth article relates to "proceedings to perpetuate testimony." It provides that any person who is a party to a suit pending in any court of this State, or who expects to be a party to a suit about to be commenced, may cause the testimony of any material witness to be taken conditionally and perpetuated. This is done by presenting to the judge due proof, by affidavit, that the applicant is a party to a suit actually pending in a court of record, or has good reason to expect to be a party to such a suit, and that the testimony of the witness is material and necessary. Hereupon the officer shall appoint such a time and place for the examination as is particularly prescribed, and on satisfactory proof of the service of the order on the adverse party or expected adverse party, the officer shall proceed with the examination. On the trial the deposition may be read in case of the death or insanity of the witness, or his inability to attend by reason of old age, sickness, or infirmity. These two articles are separate, distinct and independent enactments, and each contains in itself complete provisions for carrying its purposes into effect. Intervening these two articles, are article second, "of taking the testimony of witnesses out of this State; "article third, "of affidavits taken, and other judicial proceedings had in other States and foreign countries," and article fourth, "of depositions taken in this State, to be used in the courts of other States and countries." Judge Lester holds, that the testimony of a witness cannot be taken under article five, without showing the danger of losing his evidence by reason of "age, non-residence or infirmity." In other words, that the provisions of article one apply to article five. In this we have no doubt he errs. It must be conceded that there is nothing in article five to support the judge's views. It grants the privilege of examination without exacting any of the conditions required by article one. The right is absolute and unconditional. And when the order is duly served, the officer is required to "proceed" with the examination. No discretion is conferred on him in the matter. Now, that these two articles were intended to be independent is evident from a comparison of their provisions. Article one applies only to courts of law; article five applies to all courts of record. Article one applies only to actions actually pending; article five applies also to anticipated actions. Article one applies only to witnesses sick, infirm, or about to depart the State; article five applies to all witnesses without any of these conditions. Under article one, the officer grants the order if he is satisfied that circumstances require it, in order to attain justice between the parties; under article five he issues the order as a matter of course. Under article one, cause may be shown against the application, by proof that the witness is not sick, infirm, or about to depart; under article six there is no provision of this sort, but the officer must "proceed" on proof of the service of the order. Under article one, the deposition may be read on the trial if the witness has continued absent from the State; there is no such provision under article five. Under article five, the officer to whom the application is made may order the examination to be had before any other officer to whom such appli cation might have been originally made, residing in the same county with the witness; no such provision in article one, but instead, an authority to make an order to show cause why a referee should not be appointed to take the testimony. Article five is a complete statute in itself and makes no reference to article one, and how Judge Lester can imagine that the few particular provisions which he selects from article one apply also to article five we are unable to conjecture. His honor, however, does allege three reasons for his holding. First, he says, there is no reason shown in the case under discussion for the taking of the testimony which does not exist in the case of every witness in each of the three hundred cases at issue in his honor's county. This is a reason which certainly cannot seem of much weight to anybody but his honor, who evidently dreads the prospect that he may be called on in each of the said cases, "what there is left of them, left of three hundred." The statute does not restrict the right to any particular class or character of actions, and if it may possibly subject the judges to a good deal of work, still that is one of the penalties of the judicial station. Second, he says, that the applicant's theory has not been the general understanding of the profession. Certainly, if his honor has taken the sense of the profession on the subject his report is entitled to respect, however unimportant the authority reported may be; but we venture to say that he is mistaken on this point. It is quite certain that the "general understanding" of that portion of the profession which forms the general term of the third department differ from his honor in this particular, as we shall show. Thirdly, his honor cites the case of Paton v. Westervelt, 5 How. Pr. R. 399, to sustain his views. It certainly does sustain them, and it behooves us to examine it. That was a decision made by Judge Campbell at chambers, twenty-four years ago. Judge Lester says he cannot find that it "has ever been doubted or questioned." Nor can we, nor that it has ever been alluded to or cited as authority. Judge Campbell says it is requisite on such an application to show good faith. But this he bases on a misapprehension of the language of the chancellor, in Matter of Kips, 1 Pai. 608. Judge Campbell quotes the Chancellor: "The officer must have some discretion and may require the party on whose application the examination is made, to explain the nature of the litigation so far as to enable him to judge whether such applicant is proceeding in good faith to perpetuate testimony against the adverse parties, or is under that pretense only fishing for testimony to be used against the witnesses or for other purposes." Now this language was not used in regard to the granting of the order, but in regard to the course of examination after it was granted. The question before the Chancellor was upon the receipt of certain evidence, and whether the witness should be compelled to answer certain questions. He says if the testimony is calculated to criminate the witness he is not compellable to testify. He continues: "So if the master is satisfied, the question can have no possible bearing upon the questions which may arise in the cause, he ought not to compel the witness to answer; especially where a reasonable objection is urged by him." And he then continues as quoted by Judge Campbell. On the other hand, it was held in Jackson v. Perkins, 2 Wend. 316, that it is not necessary, on such an application, to state the probable inability of the witness to attend the trial. The court say: "The act is not confined to any particular class of witnesses; it embraces all; those in the strength and vigor of manhood, as well as the aged and infirm." That does not look much like requiring the exhibition of "good faith" in the application. But a more recent decision and rather nearer home is that to which we alluded as made by the General Term of the Third Department. What is quite remarkable, too, it was made in this very case before Judge Lester. When the judge issued the order in question the defendant appealed from it to the Supreme Court, on the ground that it was improperly granted, it not being shown that the witness was sick, infirm, or about to depart, or that " good faith" was intended. The Special Term, Judge Learned presiding, affirmed the order. The defendant appealed from that decision to the General Term and the order was affirmed, without any opinion being given. The defendant then applied to Judge Lester to revoke or reverse his own order, and although these decisions of the Supreme Court were cited to him, he made the decision reported, without any reference to them. What puzzles us most of all is to guess on what ground he permitted the examination of the one witness, who, though over 80 years of age, was shown to be in perfect health, and was present before Judge Lester, and listening with great eagerness and intelligence to the proceedings. On the whole we suspect that this decision is one of which judges will hereafter say that "it is not to be regarded as a precedent, but restricted to the peculiar circumstances of the particular case." IS A PHYSICIAN A NECESSARY? This point has been recently adjudicated in a very remarkable case in the Central Criminal Court of London. The "Peculiar People" are a religious sect in England, one of whose principal doctrines is derived from a literal interpretation of the fourteenth and fifteenth verses of the fifth chapter of the general epistle of James: "Is any sick among you? Let him call for the elders of the church; and let them pray over him, anointing him with oil in the name of the Lord; and the prayer of faith shall save the sick, and the Lord shall raise him up; and if he have committed sins, they shall be forgiven." This passage of scripture is one on which the Catholic Church base the doctrine of extreme unction. The peculiar treat |