THE NEW Code.

To the Editor of the Albany Law Journal: SIR-Section 883 of the New Code of Procedure provides that objections to the competency of a witness, or to the relevancy of testimony taken in a de bene esse examination, or objections to the form or materiality of any particular question or answer, need not be noted on the deposition, but may be raised for the first time at the trial. We are told by Mr. Throop in his notes that this is new. Is not this an entire and radical change of the previous practice and a dangerous innovation of the general rule, that where counsel conducts an oral examination he must take objections at the time, and in case of informalities, resort to a motion to suppress before trial, or he will be held to have waived them? Sturm v. Atlantic Mutual Ins. Co., 63 N. Y. 87. And will not this section be the fruitful source of surprises, nonsuits, withdrawals of jurors and miscarriages of justice, to the annoyance and at the cost of suitors and at the waste of the valuable time of the courts? Please bring this subject to the notice of the profession through your valuable JOURNAL that we may be further enlightened. NEW YORK, October 22, 1877.

THE

NOTES.

E. A. T.

HE October number of the Journal of Jurisprudence and Scottish Law Magazine contains the following articles: The Doctrine of Consideration in the Law of Obligations; Gavelkind, a peculiar tenure of the county of Kent (No. II); Famous Scottish Trials, and the continued article, A Procurator Fiscal, what he was, what he is, and what he will be. The editorial and other matter contained in the number is of the usual interest.

Mr. Justice Hawkins is the pattern of punctuality, and was at Newgate at a quarter to ten on Monday in last week, proposing to proceed with the Penge case; but it was twenty-five minutes past the hour when a hot and hurried looking, but indispensable, alderman preceded the judge into the court. Mr. Justice Hawkins, with his sourest smile said, to encourage the unfortunate alderman who sat next to him on the throne of justice, that the delay was inevitable, and that nobody was to blame. The "nobody" was a flash of the old Hawkinsian satire; but the alderman addressed did not see it.. - A litigation once arose in the University of Cambridge whether doctors in law or doctors in medicine should hold precedence. The chancellor asked whether the thief or the hangman preceded at the execution, and on being told that the thief ususally took the lead, "Well, then, let the doctors of the law have the precedence, and let the doctors in medicine be next in rank."

A correspondent suggests the following plan for preventing the accumulation of business in the court of last resort: Divide the Court of Appeals into two or more parts, as for example: 1. Let part one sit to hear appeals from all orders and judgments in (a) probate cases, and all other appeals from surrogate's decisions; (b) all so-called equity cases, i. e. Special Term cases; (c) all assessment and tax cases; (d) all special proceedings. 2. Let part two hear appeals from all orders and judgments in cases of (a) torts; (b) criminal cases; (c) commercial cases; (d) ejectment, dower, etc. The

foregoing may not fairly divide the business, but some classification could be easily devised which would. Then let us have say ten judges - five for each part, or else make three parts, and have five in part one, and three in each of the others. Thus each part could have its presiding judge, and the presiding judge of part one might be chief-judge of the court. In case of any dispute about the part to which a case belonged, let the matter be settled by the chief-judge, or a submission of points on that question. Observe: 1. While we should have but one court, we should have the labor distributed. 2. We should have uniformity of decisions, as each part would probably not have occasion to encroach upon the rules or doctrines pronounced by, or at least applied by the other. The bug-bear of a want of uniformity amounts to nothing any way. We have seen that by the commission. A re-argument before the whole court, or some one part, could very easily adjust all the probable conflicts. 3. We should, doubtless, secure a more thorough examination of each case, i. e., each judge could more carefully examine each case, whether he wrote in it or not, than under the present system.

The London Standard thus speaks of French Courts of Justice. The President of the Court of Cassation, the highest judicial functionary in France, receives the salary of a London police magistrate, £1,200 a year; but he is robed in scarlet aud ermine, and wears a decoration on his breast. The Judges of Assizes and the Procureurs at the Assizes also wear scarlet, and their velvet mortar caps are braided with gold. In all the other Courts the gowns of Judges and Procureurs are of black cloth, with white furred tippets, and their caps are braided with gold, silver, or plain velvet, according to the degree. The correctional Judges generally sport silk cassocks and sashes, and cambrie falls, and are rather imposing to look upon. In pronouncing sentence the presiding Judge covers his head, and so do the others, and they all stand up; but when the judgment has been read, all the puisne Judges lift their caps in token of assent-hence the term opiner du bonnet for to be of one mind with a speaker. Judg ments are never delivered ex tempore in France, but always drawn up in the consulting room, and written on paper with numerous “considerations,” and quotations of the articles of the Code which meet the case in point; moreover, prisoners are not present when sentence is pronounced. The presiding Judge having read the sentence, hands it to the clerk, and retires with his brethren. Then the prisoner is brought in again, and the clerk reads him the document close to the dock. The point is worth remembering by British writers of fiction, who occasionally make a French Judge sentence a prisoner off-hand and favor him with a moral lecture into the bargain, as is done in Englaud. We have said that French Judges are usually arrogant toward barristers. As a fact they will stand no sort of impertinence from the bar, and have it in their power to disbar an advocate summarily for any term not exceeding two years. M. Emile Ollivier was once disbarred for six months owing to an uncivil slip of the tongue. It is fair to add that if some French Judges systematically abuse the large powers they enjoy, and if the judicature as a whole is anti-liberal. haughty, and narrow-minded to a rare degree, there are yet honest and intelligent Judges to be found who will not prostitute their office at the bidding of a minister.

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, NOVEMBER 3, 1877.

CURRENT TOPICS.

tained in a preamble to certain resolutions in respect to the subject, passed by the legislature of this State last winter, and in an article in the ALBANY LAW JOURNAL, of the 28th of April last. The article in question endeavored to show that the rule in the bankrupt law forbidding preferences while theoretically fair, was in practice very frequently unjust. We instanced the case where the debtor owed a thousand dollars to one creditor for borrowed money, and a thousand dollars to another, the balance of an account, where a thousand dollars profit had been

Court in the First Department, decided that the new rules relating to admissions to the Bar apply to young men who have completed the course prescribed by the old rules. A class of young men had been examined for admission, and the point was raised that the new rules did not apply to them, inasmuch as such rules should have been published three weeks in the State paper, under section 18 of the Code. But the eourt held otherwise, and that the young men could only be admitted as attorneys. Judge Davis read a letter from Chief Judge Church, to the effect that section 18 had no application to the subject.

Vacation over, and the more pressing official duties disposed of for the time, Judge Neilson resumes in our columns to-day his valuable papers on Rufus Choate. The biographies of lawyers are seldom written. Nothing of them goes down to the next generation but tradition, and their names are seldom recalled save as one turns the pages of the law reports. He who can break in upon this silence and lessen the sin of this ingratitude is a benefactor to his profession. This Judge Neilson is doing most successfully. Although much has been written of Choate, it has utterly failed to present any thing like an adequate picture of the great advocate, and greater man. Those who knew him

both debts. If the borrowed money was paid no one would lose; if the debtor's money was equally distributed, one creditor would in reality make a profit of $500 out of the transaction, and the other would lose $500. We do not consider the forbidding of perferences by any means the strongest reason for repealing the bankrupt law, nor do we think the getters up of the document referred to, do so; but we believe the article in question was quoted for the purpose of making a point with the mercantile community, who are supposed to wish no distinction to be made between a debt which represents merely a profit upon a sale of goods, and one which represents a loan of money. There are numerous arguments of great strength for the abolition of this law, one of which we will mention, as its existence is the chief reason, with numerous individuals, for a perpetuation of the law. This is the expense of bankruptcy proceedings, an expense which is made unbearable by exorbitant and dishonest fees, by official carelessness and wastefulness in the management of bankrupt estates, and not unfrequently by official robbery. Under the pretense of an equitable division of the property of insolvents, debtors and creditors have been alike plundered. The people of all classes ask to be relieved from a continuance of the burden. Are those who are growing rich out of bankruptcy pro

their demand?

The friends of the existing bankrupt law, who are for the most part the officials and others deriving profit from its operation, are working with all their might to prevent its repeal by the present Congress. Among other things they have prepared a petition for the amendment of the law, including a remonstrance against its repeal in the form of a pamphlet of forty-five pages, in which is contained all the reasons possible to be contrived for the continuance of the present order of things. According to this document, there have been no substantial arguments presented for the repeal, and the only attempt at an argument has been what was conVOL. 16.- No. 18.

A New York register in bankruptcy has with great care prepared and published in the newspapers, a list of assignments for the benefit of creditors under the State law, filed in that city during the last two years. The object of this compilation is to show that the State insolvent law is not sufficient to answer the purposes of the business community. The list is very formidable and would indicate that a large number of persons preferred the State to the National law, as a means of distributing insolvent estates. We do not doubt that if there were entire freedom of action in the matter, and debtors and creditors might choose whether to act under the local or the Federal procedure, the fees derived from bankruptcy proceedings would not be worth the seeking.

The President on the 29th ult. sent in to the Senate the name of John Baxter, of Tennessee, as Circuit Judge for the Sixth Circuit, and that of Romanzo Bunn as United States District Judge, for the Western District of Wisconsin. Both of these gentlemen have an excellent reputation for ability and learning, and we believe their appointment is satisfactory to the profession in the localities where they reside.

The constitutionality of the legal tender act, and the construction of the extradition treaty with England, are subjects about which some of the profession love to write and talk learnedly, but the question of the price of law books is one which comes more near to every lawyer. In almost every State there has been, at one time or another, a controversy between the lawyers and the publishers over the sum which should be deemed a proper equivalent for a volume of the regular series of reports or of the public statutes. The result has not been alike in

The Court of Appeals in the case of Ferguson v. Crawford, an abstract of which appears on page 282 of our present volume, decides that the record in a judgment of a domestic court of general jurisdiction is not conclusive as to jurisdiction, but may be impeached in a collateral action. In an action to foreclose a mortgage, a judgment of foreclosure of a prior mortgage on the same premises was set up as a defense. In the record of this judgment was what purported to be an appearance on the part of plaintiff in the principal case, by an attorney. Plaintiff offered to show that the signature of the attorney to the appearance was forged, and that such attorney had no authority to and did not appear. The evidence was not admitted at the trial, and the General Term sustained its rejection (7 Hun, 25) upon the ground that the only way for plaintiff to relieve himself was by a direct proceeding attacking the validity of the judgment, and that he could not impeach its validity collaterally. The Court of Appeals reversed this decision, holding as we have noticed above. The rule established by the court is very generally conceded to be the correct one in respect to judgments recovered in one State, and sought to be enforced in another, but its application in the case of domestic judgments is as generally denied. The Court of Appeals shows, however, that the courts of this State have not as a rule recognized the prevalent doctrine, but have made no distinction between home and foreign judgments. The decision is one of considerable interest, as finally establishing what the rule is in this State upon this very important question.

down to the bare cost of printing and binding, and even below, and in others being maintained at so high a point as to afford an exorbitant profit upon such sales as might be made. Just now the fiercest fight is in the State of Illinois, where the reports and statutes are sold at such figures as to tempt the issue of rival editions. In New Jersey, also, some of the profession are making loud complaints because they are compelled to pay more than they think proper for the official reports. In all these disputes, the claims made on either side are apt to be far more than is equitable or just. The lawyers are not (as is the popular impression) well situated pecuniarily, most of them, after paying their necessary living expenses, have but little to spare for even so essential a thing as the professional library. To them it is, therefore, a matter of moment whether a law book costs one, two or five dollars, and they feel that they should be asked to pay no more than sufficient to cover the cost of production and a moderate profit, and they are apt to estimate what this ought to amount to by comparing the price of law books with that of publications in general literature. The law publishers, who print and sell books for the sake of profit, and who must take into consideration, in fixing a price, very many contingencies, are apt to place the asking price for a volume at a sum higher than attorneys, as a rule, can afford to pay. The cost of preparing and publishing a law book is as great as that of preparing and publishing a book on some general subject, while the possible number of copies of the law book which can be sold is small in comparison with that of the others, while the chances of failure in such enterprises are about equal. Thus law book publishing has equal risks with the publishing of other books, and has not the possibility of equal returns, consequently the price of a law book must be comparatively high.

We understand that quite a number of essays have been sent in for competition for the prize offered by the State Bar Association. Among them are said to be many masterly productions, so that the effort made to develop, among the profession, by means of prizes, the spirit of careful investigation may be regarded a success. Doubtless, as has been

WE

RUFUS CHOATE.

VII.

E take pleasure in deferring the discussion of topics had in view with regard to Mr. Choate, to make room for communications in hand for this and the next number, which, it is hoped, will be read with interest. We anticipate a like pleasure, and a material assistance from the kindness of a few correspondents, related to Mr. Choate by ties of friendship or business, or neighborhood, by whom contributions have been promised.

We would likewise express our thanks to others who, not having time or opportunity to write formal communications, have favored us with casual incidents, which, in proper relations, would tend to illustrate Mr. Choate's gifts and peculiarities. We give here two extracts, one of which indicates his ability to understand men, to read their minds; the other, his power, by a merely intellectual and reflective process, to discern the existence and relation of omitted facts; an ability in the realm of ideas which may be truly said to be akin to that in virtue of which the astronomer from the perturbations it causes in known bodies, infers the existence and calculates the place of the unknown planet.

A gentleman formerly in practice at the Boston bar says: "In my early experience I had a case of some complication and importance in which Mr. Choate had been retained as counsel. There had been no consultation, and I was to prepare a full statement of the case. I worked at it a month with the occasional aid of my client, and arranged the points, more than thirty in number, noting fully facts and circumstances under each in their apparent order and relation. I went to Mr. Choate and read

:

the paper over to him. He said, 'Please repeat numbers twenty-six and seven.' I did so. He said, 'There is something wanting the human mind does not work in that way. The case drifts on naturally enough, down to twenty-six, but there comes up a peculiar complication, and your statement does not meet or belong to it. At that juncture the parties, if fairly disposed, would have done thus, and so, if unfairly disposed, would have taken this or that course. There is something of moment behind what you have got.' I resumed my study of the case; my client found additional correspondence and papers, and, when all had been sifted down, we found Mr. Choate was right. The matter under twenty-six gave place to a more full and connected view of the case, which, on the trial, proved to be of controlling importance."

The same gentleman says: "I went into court to see Mr. Choate, and found him addressing a jury. Chief Justice Shaw had occasion to suspend the proceedings a few minutes, and, while Mr. Choate was standing before the jury, I went to him and said, 'We want an interview in B.'s case: how long

will be in closing your argument?' He said, you 'I don't know. That red-headed juror in the back seat don't seem to understand the case yet, and I must feel of him and put some points in a new light.' I went back to my seat and Choate remained looking at the jury, now directly, now furtively, but without apparent concern, until the Chief Justice came on the bench. Mr. Choate turned suddenly and said: 'If your Honor please, I detain you no longer; gentlemen of the jury, that is our case.' He had a verdict. As we walked to his office, I told him how amazed I had been, and asked why he had changed his plan. He said, 'When you gave me that imploring whisper for Mr. B., I was conferring with my red-headed juror, and after exchanging a few additional looks, I saw I had him.'”

My gratitude is due also to ladies who have written confessing their interest in Mr. Choate's life. I take extracts from two letters, the one giving what is entitled "a bit of persiflage," the other "a rebuke.” "When Mr. Choate was in the Senate at Washington, the ladies were anxious that Mrs. Choate should come on, and often beset him about it. On one occasion when they asked him "Do you really think Mrs. Choate will come on?" he answered, "Yes, I now think she may. I have written her to come, and have even offered to pay half the expenses.” The other is the cross-examination of a new light preacher:

Mr. Choate. What are you, sir?
Witness. A candle of the Lord.
Chief Justice. A what, sir?

Mr. Choate. A dipped candle of the Lord, if your
Honor please.
J. N.

Although not written for publication, I am permitted, upon my special request, to give the following portions of letters received from the Hon. William Strong, Associate Justice of the Supreme Court of the United States. J. N.

[Extracts from letter of January 30, 1877.] "I read, carefully, Trevelyan's Life of Macaulay, twice, immediately after its publication in this country. I had previously read Dr. Brown's charming biography of Mr. Choate, and read it, I believe, more than once. Until your article in the ALBANY LAW JOURNAL appeared, it had not occurred to me to compare the two men, and, even now, I find it difficult to compare them. In my judgment, they were very unlike. Undoubtedly, there were some particulars in which they resembled each other. Both had remarkable powers of memory, but Macaulay's was rather the memory of words, while Choate's was that of ideas, as well as of words. Each of them had a large element of the dramatic. Each was a natural poet. Each was a man of great industry and of brilliant accomplishments. But here the resemblance seems to me to cease. Con