4. Declaration of Possessor of Real Estate-Pedigree-Trespass quare clausum-Commons.-South Hampton v. Fowler. [54 N. H. 197]. 1. The declarations of one in possession of real estate are competent to rebut a title set up by or under the person who made them, and are also affirmative evidence of title in the party for whom the person in possession declares that he holds it. 2. Evidence as to pedigree is confined to the declarations of relatives of the family. 3. The declarations of a party's ancestor, since deceased, not in possession, nor claiming title to the premises in question, as to the occupancy or ownership of the premises, are inadmissible. In an action of trespass quare clausum, if the jury return a special verdict that the title to that part of the premises described in the declaration upon which the trespass complained of was committed was in the defendant, he will be entitled to a general verdict. 5. The plaintiffs claimed that the unoccupied lands within the original limits of the town of S. became originally the property of the town, the plaintiffs claiming title through the town to the locus in quo. Held, that to rebut this claim it was admissible for the defendant to read in evidence extracts from the town records, that certain other unoccupied lands were owned by commoners, and to read from said records the lists of certain persons designated as commoners or proprietors, and as such entitled to certain lands, some of said extracts having no reference to the locus to her, until and including July 1, 1869. On August 9, 1869, in response to her written demand for the payment of the principal sum of $1,500, they paid her $393.50, and on January 1, 1870, they paid her $33.20, being the interest then due upon the remainder of the principal sum. May 12, 1870, after making a further demand on that day for the balance due upon said writing, H. B. died. The executor of H. B. brought an action against the executors of C. W. B. to recover said balance. Upon the trial the defendants offered to prove (1) that H. B. in her lifetime admitted that the writing was given for money which C. W. B. invested for her, and which was lost;--held, that the evidence was immaterial; (2) that H. B. admitted in her lifetime that she was not to call for any part of the principal sum, unless it was necessary for her support! -held, that the evidence was inadmissible, because it contradicted the written agreement; (3) that within 48 hours preceding the death of C W. B., she agreed that if L. W. B. would agree to pay her $90 per year so long as she lived, she would surrender said writing, and that said L. W. B. did so agree; -held inadmissible, because sets up a nude agreement inter alios, and because it was never executed on either part; (4) that the executor of C. W. B. paid her $393.50, August 9, 1869, part of said sum of $1,500, in comsideration of which she agreed that she would not call for any more of said principal sum; -held inadmissible, because it sets up a verbal release without consideration; (5) that H. B., immediately after said payment of $393.50 asked the forgive-in quo, as admissions by the town that the title to the lands in dispute was in ness of Mrs. C. W. B., one of the executors of C. W. B., for making said de mand, and promised that she would not call for any further sum upon said writing than the interest;-held inadmissible, because it set up a verbal release without consideration; (6) that H. B. was not of sufficient capacity to make the demand of May 12, 1870; that the same was not hers, but was made by one G. G. B. when she was dying;-held immaterial; that the first demand was sufficient to fix the liablility of the defendants. the commoners under whom the defendant claimed. Contract based on Worthless Patent Invalid.-Jenkins v. Abbotts. [54 N. H. 447]. The plaintiff, by a memorandum in writing, sold to the defendants the right to lay or put down concrete paving within a certain territory for a term of years, the defendants agreeing to pay a royalty of eight cents for each square yard of paving so put down by them. The only right the plaintiff owned was a right under a patent, which as a patent, was worthless. Held, that the agreement was without consideration, and that the plaintiff could not maintain an action against the defendants to recover the sum agreed to be paid as royalty. Attachment-Sale of Attached Property-Bankruptcy more than Four Months after Attachment Madə-Mortgaged Property in hands of Assignee-U. S. Bankrupt Law Supersedes State Law-Assignee may Waive Notice.-Rowe v. Page. [54 N. H. 190.] 1. At the April term, 1873. of this court, on the final calling of the docket, and during the absence of the plaintiffs' counsel, the counsel for the defendants withdrew his appearance, and a default was entered, and "judgment nisi" entered upon the docket. Neither the plaintiffs nor their counsel had any knowledge that the case was not continued, until a short time previous to the next term. At the next term, on motion of the plaintiffs' counsel and a statement of these facts, the action was brought forward and judgment rendered for the plaintiffs, on which execution issued, and a demand was duly made within thirty days from the rendition of the judgment upon the receiptor for the property attached upon the original writ. Held, that the attachment was not dissolved, even as against third persons. 2. The receiptor restored the property attached to the debtors, who stored it in the loft of their store, and sold a portion of the same. Held, that as between the officer and the debtors the special property acquired by the attachment still subsisted as to the property unsold. 3. More than four months after the property was attached, a creditors' petition was filed against the debtors in the United States District Court, upon which they were adjudged bankrupt, and the unsold portion of the property attached was taken possession of by the assignee. Subsequently the plaintiffs obtained judgment against the bankrupts in the suits upon which the property had been attached, and execution issued thereon and was placed in the hands of an officer, who seasonably demanded it of the receiptor. The assignee sold that portion of the attached property which came into his hands. The officer demanded it of him before the sale. Held, that the assignee, standing in the place of the bankrupts, took their property subject to the lien created by the attachment, and that the officer could main-charged, it is no ground of exception that the jury were erroneously told that tain an action against him for the property attached. 4. Subsequent to the attachment and prior to the commencement of proceedings in bankruptcy against them, the debtors assigned all their property for the benefit of their creditors under the insolvent laws of this state to one P., who was subsequently appointed assignee in bankruptcy,and he took possession of the same, including the property attached, the same being subject to a mortgage which he treated as fraudulent. Held, that in a suit by the officer against the assignee, to recover damages for the conversion of said property, it would be no defence to show that the property was subject to a mortgage, unless it was also shown that it was restored to the mortgagees so as to exonerate the officer. Whether he is estopped to deny the fraudulent character of the mortgage, quaære? 5. When Congress has exercised its power of making a general bankrupt law, and it has gone into operation, the state insolvent laws are suspended. 6. By sec. 14 of the bankrupt act passed in 1867, it is provided that no action shall be maintained against an assignee in bankruptcy for any thing done by him as such assignee, without giving him twenty days' notice of such action. Held, that in a suit brought against him, the assignee, by appearance and pleading, waived any exception for want of such notice, and admitted himself rightly in court. Entry of Grantee of Growing Timber after Reasonable TimeTrespass-Damages.-Hoit v. The Stratton Mills. [45 N. H. 452]. I. If the grantee of the absolute title to growing timber enters and removes the timber after the expiration of a reasonable time for its removal, he is liable in trespass to the owner of the land for such entry, and for the damage done to the land thereby, but not in that action for the damage done to the owner of the land by the trees remaining upon the land after the expiration of a reasonable time for their removal. 2. If in such a sale of growing timber it was to be paid for when taken, at a given price per thousand feet, then the owner of the land could not recover in trespass for the value of the timber, nor for the increased growth of the timber after the expiration of such reasonable time for its removal; but he might recover in that action for the increased value of the increased growth of the timber, after the expiration of such reasonable.time. See opinion in same case, 54 N. H. 109. Bigamy-Indictment-Marriage in fact-State v. Clark. [54 N. H. 456]. I. An indictment upon Gen. Stat., ch. 256, sec. 5, alleged that the defendant, being a married man, and having a lawful wife alive, aid, etc., cohabit with one C. M. J., single woman, etc, Held, sufficient after verdict. 2. On the trial of such an indictment, the testimony of persons who were present and witnessed the former marriage ceremony is admissible to show the fact of such marriage. 3. On the question of handwriting, the jury may compare the writing in dispute with one admitted to be genuine. 4. Where the instructions to the jury were such that in any view they must have found the fact of one valid subsisting marriage at the time of the unlawful cohabitation there was evidence from which they might find that the first of the two former marriages had been cancelled by a divorce. State Process to compel the Attendance of Witnesses-Impeaching Testimony-Witnesses, not Experts, to Insanity-Rape -State v. Archer. [54 N. H. 465.] 1. It is only in a capital case that the respondent is allowed the process of the state to compel the attendance of his witnesses, and not in such a case, unless the respondent is poor and unable to furnish them himself. 2. Any person, who heard the respondent testify on a former hearing, may testify what he then stated for the purpose of contradicting his present story. Such impeaching testimony is not confined to such witnesses as took minutes of his former testimony. 3. A respondent is not obliged to testify so as to criminate himself in relation to any collateral matters, even though he volunteers as a witness in chief; but if the witness chooses to testify, on cross-examination, that he has been guilty of a felony, it would be competent as affecting the credit of the witness. 4. Witnesses, not experts, can not, as a general rule, give their opinions as to the mental soundness or unsoundness of the respondent. 5. Proof of the actual commission of a rape by the respondent would warrant a conviction for an assult with an intent to commit rape. Sale of Liquor Prima Facie Illegal in this State, Otherwise Le-able police court City of Cincinnati that he Will repplication for rit erroer to gal-License-Secret Agreement of Partners.-Corning & Co. v. Ab bott & Co. [54 N. H. 469.] I. Sales of intoxicating liquors, if made in this state since the act of 1855, will be presumed to be illegal and void until the vender's authority to sell is shown 2. But if such sale is made in another state' court of common poliece and in the main time he ask that the sentence and judgment be suspended and born fixed as the court may think just.-[American Newspaper Reporter. -A TEXAS judge is credited with the following neat decision: "The fact the presumption willbe that the sale is legal until it is shown to be otherwise. 3 is. Jones, the jail is an old rickety affair, as cold as an iron wedge. You applied A sale of spirituous liquors without license from the United States government is not void. 4. Information and belief on the part of a vendor of spirituous liq-freeze to death there. The weather has not moderated, and to keep you to this court for release on bail, giving it as your opinion that you would uors, that the purchaser was intending to sell the same contrary to law, does not invalidate the sale. 5. The plaintiffs will not be affected by any secret understanding or agreement between partners, not known to the plaintiffs, limiting the general power of either partner. When Delivery no Sale-Special Count.-Clay v. Bohonon. [54 N. H. 474] 1. When goods are bargained for and delivered, with the agree ment that they shall remain the property of the vendor until they are paid for, if the same are not paid for within the time specified the vendor may retake the goods, or bring assumpsit for the price. 2. But neither a count for goods sold and delivered, nor for goods bargained and sold, can be maintained for the price of the goods; but a special count should be inserted, founded upon the special contract. Homestead-Levy thereon, when Valid-Conveyance vold as to Creditors-Currier v. Sutherland. [54 N. H. 475.] 1. A levy on premises, of which the execution debtor is in possession, claiming a homestead therein, made without any application on the part of the debtor for the assignment of a homestead to him, is valid against a grantee of the debtor whose deed is fraudulent and void as to creditors, although the value of the premises does not exceed the amount exempted by law from attachment or levy. 2. It is not impossible for a conveyance of property, which is exempt from attachment or levy, to be fraudulent and void as to creditors. Damages in Trespass qu. cl. fr.-Foote v. Merrill. [54 N. H. 490.] In trespass quare clausum fregit, and for cutting down and carrying away trees, the measure of damages is the amount of injury which the plaintiff suffered from the whole trespass taken as a continuous act: the increased value of the trees, occasioned by the labor of the defendant in converting them into timber, is not to be included. Private Railroad-Highway-Obstruction-Negligence.-Hall v. Brown. [54 N. H. 495.] 1. The defendants being owners of a private railroad, with the consent of the W. M. Railroad Corporation, were used to run their cars and engines over a part of the track of the said corporation, including a highway crossing;-held, that, while thus in occupation of the track, they were to be considered proprietors of the railroad, so far as regards their rights and liabilities in obstructing the crossing, under Gen. Stats. ch, 108, sec. 7. 2. That statute is directed to the object of protecting travellers against delay from the obstruction of cars, etc., at railroad crossings; its violation, therefore, does not create an absolute liability for damage which is not caused directly by such delay. 3. The defendants left their cars standing across the highway for more than two minutes. While the highway was thus obstructed, the plaintiff's horse was driven up to the crossing, and, after being delayed more than two minutes, took fright when an engine was attached and the cars started, ran and was killed ;—held, that the plaintiff must show actual negligence or fault on the part of the defendants before he could recover. Discharge in Bankruptcy no Bar to Suit on Bond Executed before Bankruptcy.-Eastman v. Hibbard. [54 N. H. 504] A discharge under the United States bankrupt act of 1867 is no bar to a suit against a surety on a bond executed before the bankruptcy to secure the plaintiff for such damages as might be occasioned him by an injunction staying the collection of an execution, when the equity proceeding in which the injunction was issued was not determined till after the discharge. Legal News and Notes. -A KANSAS Court has decided that a man and his wife may go to a circus on a ticket that says admit one," as they are "one flesh" and considered as a unit. This question also settles, in a manner, the female suffrage controversy, as it would be illegal for husband and wife, being "one flesh," to cast more than one vote. -MR. TRAVIS, a Cincinnati lawyer, filed a document worded as follows: The defendant Now on the 28th day of July 1875 gives notice to the honor from freezing, I will direct the sheriff to hang you at four o'clock this afternoon." -AN attempt was recently made in Brooklyn to place a negro boy in a particular school, after the board had provided special schools for colored children. Judge Gilbert decided that the third section of the civil rights act did not prohibit discriminating between the races, but only discriminating against any race; and that personal preference could not weigh against the allottment of the board. If that boy attends a white school, it is only as a visitor. -JUDGE PAXSON, of the Supreme Court of Pennsylvania, has recently decided, in the case of Durham et al. v. Baird et al., that, where the parties are citizens of different states, and entitled to have their cause removed into a United States Court, if the petitioners bring themselves within the terms of the law, the right of removal is complete, and the act of removal takes place when a copy of the record is duly filed in the district court, for the state court has no discretion in the matter, the petition being merely for the sake of form. --THE TWEED SUITS seem at last to approach trial, as by a recent decision of the New York Supreme Court, the defendant is obliged to desist from further dilatory pleas, and to answer within a week. In addition to the six million suit, another has lately been brought against Tweed, in which his bail is fixed at one million dollars. In the mean time the illustrious Tammany chief is living in Ludlow street jail. His counsel pretend to be well pleased with the ruling requiring them to answer at once, and say that they will put in "a general denial of the whole story." -THE law known as the Plimsoll act, which was passed in the last session of the English Parliament, went into effect on the first of this month. It will be interesting to shippers of produce to Europe to know that this law provides that no cargo, of which more than one-third consists of any kind of grain, corn, rice,paddy, pulse, seeds,nuts or nut kernels, shall be carried on board any British ship unless it is contained in bags, sacks or barrels, or secured from shifting by boards, bulkheads or otherwise. Captains who permit the violation of the law in this regard are liable to a fine of £200. THE ATTORNEY-GENERAL of the United States has given the following opinion regarding the branding of cigar boxes: "The Commissioner of Internal Revenue has referred to the attorney-general the question whether the law requiring wooden cigar boxes to be branded with the name of the manufacturer, district and number of his factory is to be construed as extending to pasteboard and tin boxes, which are extensively used in packing cigarettes. The internal revenue officials could not agree, the commissioner maintaining that the law must be literally fulfilled, although he does not know by what process tin will be made to take the impression of a hot branding iron. On the pasteboard boxes the heat scorches the surface and otherwise disfigures the package. It is understood that the attorney-general will decide that it is not the scope of the law to require business men to damage their wares by a forced construction of the act, which, prior to the passage of the Revised Statutes, did not present the ambiguity it is now claimed the law is in volved in." -THE Scotchman of the 17th ult., gives the following Scotch court incident: "Yesterday, for the first time since 1761, there were no cases before the Circuit Court of Justiciary in Aberdeen. Lord Deas, the presiding judge, at tended by a guard of honor of the Ninety-second and Ninety-third Highlanders, walked from the Douglas Hotel at 10 o'clock, accompanied by the Lord Provost and Magistrate, Sheriff Guthrie Smith, Mr. Roger Montgomerie, Advocate Depute, etc., Mr. E. S. Gorhur, Lord Advocate, member of Paliament for the universities of Glasgow and Aberdeen, and Sir Charles Shand, Chief Justice of the Mauritius, also took part in the procession. On the court assem bling, the advocate Depute formally intimated that there was no criminal business to submit to the court. [Applause.] Lord Provost Jamison expressed on behalf of the town and county authorities present, their gratification at there being no cases for trial, and his own pride that it had fallen to his lot to present, according to immemorial usage, a pair of white gloves to his Lordship. The gloves, a magnificent pair, worked with gold thread and contained in a neat oak case, having the city arms inlaid on the lid, were then presented to Lord Deas, and pairs of plain white gloves to the Lord Advocate, Sir C. Shand, the sheriffs and other gentlemen officially connected with the court." SEYMOUR D. THOMPSON, Editor. ST. LOUIS, FRIDAY, NOVEMBER 5, 1875. RECORDER HACKETT.-They are having a lively time in New York city over the office of recorder. It seems that Judge Hackett, who has held the office ably and acceptably for many years, refused to appoint to certain offices within his gift a list of names which had been furnished him by "Honest John Kelly," Chief of the Tammany Society. Judge Hackett wrote a letter to Mr. Kelly declining thus to turn his court into a political workshop, in which he used the following language: "If there exists an office which more than any other one should be utterly divorced from political considerations, it is that of a clerk or deputy clerk a of criminal court. Even if disposed to throw open its books and records to a politician I could not do it, because the deputy clerk is not appointed by the judges of the court of general sessions. The officers who escort and guard prisoners to and from the city prison, and who to some extent control process, ought not to be mere politicians, but such reliable men as the judges select." The upshot is, that Recorder Hackett has been thrown overboard by the Tammany society and Mr. F. A. Smythe nominated in his place. The Republicans and anti-Tammany or Morrissey Democrats have, however, renominated him, and if the "independent voter" does his duty, he will be elected. As the election takes place on the day this side of the JOURNAL goes to press, we are not able to give the result. dispassioned study, but golden hopes are cherished that the new king will restore the equilibrium so much desired. From late accounts of the conduct of that young man, these hopes seem likely to be disappointed. BANKRUPTCY PROCEDURE-COMPOSITIONS.-In the cases of Spades v. Spades and Muir v. Foley, reported in 8 Chicago Legal News, 33, Mr. District Judge Gresham of the United States District Court for the district of Indiana, sitting at Indianapolis, on application to settle certain questions of practice with regard to compositions in bankruptcy, states the order which will be made in case of an application for a composition, the notice which the register must give, and the entries he must make in his record. The learned judge says that the proposition of the debtor must be adopted by a majority in number and three-fourths in value of the creditors assembled at such meeting, voting either in person or by proxy; but the resolution must be confirmed by the signature of the debtor and of two-thirds in number and one-half in value of all the creditors. He also rules as follows: A reasonable time, after the adoption of the resolution, may be given, to secure such additional signatures as may be required to confirm it. In settling the composition, whether for or against it, creditors whose debts do not exceed fifty dollars shall not count in determining the number, but shall count in determining the value. Secured creditors are not counted at all, unless they satisfy the register that there is an excess due them over the value of their security. That excess being determined by the creditors. Secured creditors, within the meaning of this exception, are those who are secured by a pledge, in some form, of property that, apart from their lien upon it, would go into the fund for general distribution. Creditors who have personal security only, are entitled to vote the same as unsecured creditors. In case the debtor is a partnership, all creditors, individual and partnership, may vote without a classification, if at the meeting the creditors are content to do so; but if one of any class of creditors perceives that the other class is about to force upon him an unjust composition, he may demand a classification and a separate vote; and should it, at the second meeting, called for the final allowance of the composition by the court, appear to the court that injustice has been done by a common voting of all the creditors, individual and partnership, the court can then consider if any, and what redress should be given. THE BERLIN JURIDICAL SOCIETY.-They have in the capitol of the German Empire a society of this name, whose ob-register, they are admitted to vote the same as unsecured ject is the cultivation of juridical science. Meetings are frequently held throughout the winter, when papers are read and questions discussed relating to the better administration of justice and the prevention of crime. The society provides a reading-room and a library. Prize essays are also in vogue, the prizes being the means of arousing the ambition of the young, and affording an inducement to the older members to engage in studies more profound than remunerative. The latter object is better accomplished by means of a fund, called the "Savigny Stiftung," of which the society is trustee. The Law Magazine a Review, of London, suggests establishing a similar fund in England, where they already have the Eldon and Vinerian scholarships, the Stowell fellowship, prizes established by the former Chichele Professor of International Law at Oxford, and also prizes awarded under the name of Dr. Bernard, to which may be added the Whewell scholarships. The "Stiftung" has already elicited from Prof. Maassen, of Vienna, the History of the Sources and Literature of Canon Law in the West to the close of the Middle Ages, and has assisted Dr. Paul Kruger, Privat-Docent of the University of Munich, in his journeys undertaken for the collection of MSS., as well as in the publication of his new edition of the "Codex Justinianus." A Savigny Committee was established in Barcelona, Spain, in 1869, having as their object like purposes to those of the German society, with whom they kept themselves in correspondence. Unfortunately the condition of affairs in Spain of late years has not been calculated to afford the proper atmosphere for calm and SLANDER BY MInisters of the GOSPEL.-The clergy wield great power, and, as their statements are respected by many people as though they were made upon divine authority, or at least dictated by the highest human motives, it is obvious that pulpit strictures upon the character or conduct of particular individuals, unless restrained by the temporal authority, might at times work great injury to individuals and stir up great strife in neighborhoods. That it is possible for clergymen so to abuse their sacred functions is evidenced by the case of Derouin v. Archambault, recently determined in the Court of Review at Montreal and reported in 19 Lower Canada Jurist, 157, which was an action brought against a priest for uttering in the pulpit the following language: "There is a man in the parish who has had the audacity to ask the council for a license to sell liquor. I forbid the granting of one to him. He is an idler and a loafer living at your expense, and fattening on your sweat. He keeps a disorderly house which is a scandal to the parish. He must be driven from it. Do not encourage him. Ruin him. Drive him out. That is the way to get rid of him." In the court below judgment was given for the defendant, and one of the grounds on which it was placed was, that the words imputed having been alleged to have been part of a sermon preached in church, the defendant was amenable only to his ecclesiastical superiors. But this pretension was, in the Court of Review, abandoned by the defendant's counsel, and the judges repudiated it in strong terms, and all concurred in reversing the judgment. In New Mexico, a Catholic country, as we have already seen (ante, p. 647), they have a statute in the following language, which we commend to our arctic brethren: "Whereas, various ministers of the gospel are frequently committing grave slanders against particular persons, in temples and chapels, losing sight of charity and evangelical meekness, and profaning those sacred places which are dedicated exclusively to the worship of the Supreme Being; therefore, if in the future, any minister of the gospel of any denomination whatever, or any other person, by word or any other manner, slander any person or persons within any temple, they shall on conviction before a justice of the peace or probate judge, be fined not exceeding fifty, nor less than twenty-five dollars." THE ENGLISH ADMIRALTY has lately issued a circular letter which seems to be opposed to the honorable maintenance of freedom which has so long distinguished the British nation. The commanding officers of war-vessels, cruising in waters of slave-holding countries, are told, regarding their treatment of slaves taking refuge with them, that "slaves must not be misled into the belief that they will find their liberty by getting under the British flag;" nor must they be permanently received on board any species of British ships, except to save their lives; for such action would be "in the first instance, to encourage and assist in a breach of the law of the country, and, next, to protect the person breaking that law." And in foreign ports, where one has been shown to be legally a slave, he must not be retained. Even if a slave, on the high seas, escapes on board a British vessel, he must be surrendered, on demand, to the country whence he escaped. The Nation in commenting on this circular, calls attention to Lord Mansfield's decision in the Somerset case, and asserts that this position of the admiralty is contrary to a long course of wellestablished English decisions. As soon as this circular was made public, meetings were held throughout the kingdom, and remonstrances and petitions poured in from all quarters, condemning the order in no measured terms. The press also lent its power to swell the popular voice, and under the force of so great a pressure, the department recalled this paper. To the British government the vox populi is indeed the vox Dei; and the present ministry has too slight a hold on its position to dare brook the popular clamor. It has long been a principle in England, that no slave can live on English soil, and the fiction that British ships are a part of the British territory leads to an application of this principle in the case of vessels. But it is only by the comity of nations or by treaty that Great Britain is permitted to anchor her vessels in foreign harbors; and to interfere with the law of the country in whose ports one of her vessels may be, would not be warrantable. Should a Portugese come to England with a slave, that slave would be free on touching free soil; but to receive him, a fugitive, on board an English ship, lying in Lisbon harbor, and to declare him thereby a free man, would be to force English municipal law upon a friendly state. The act would be clearly illegal, and its illegality should not be overlooked because of sympathy with the sentiment which prompted it. We therefore think the circular was sound in principle. It only sought to command what the government had long been forced to recognize as an international duty. It was previously the practice to act as the circular required, though not without remonstrance. OBLIGATIONS OF RAILWAYS TO EXPRESS COMPANIES.-E. M. Sargent brought action against the Boston and Lowell Railroad Company (115 Mass. 416), on the following grounds: For many years prior to 1866 the plaintiff had a contract with defendant, under which he carried on an express business between Boston and Lowell, which by his skill, energy and courtesy he made very profitable. In November, 1865, the defendant gave notice that it would make a contract for carrying express articles with the highest bidder. The contract was awarded to certain parties, claimed to be in fact merely the agents of the railway, and the plaintiff was notified that thereafter he would not be permitted to have his goods carried in the baggage-car of the company, but must have them sent as freight, if at all. The defendant afterwards took upon itself the carrying of all express articles along its line. Though the plaintiff repeatedly offered fair compen sation for the privilege of conducting an express business over defendant's road, he was as frequently refused. Hence this action of tort. The plaintiff claimed the right of having special facilities extended to him, because they had been given to other express companies. Wells, J., in delivering the opinion of the court, said: "We know of no principle or rule of law which imposes upon a railroad corporation the obligation to perform service in the transportation of freight, otherwise than as the carrier of goods for the owner in accordance with their consignment; or which forbids it from establishing uniform regulations applicable alike to all persons composing the public to whom the service is due." The court held further, that "railroad companies can not be required to convert their passenger trains to the purposes of freight at the discretion of parties not responsible for the management of the trains; nor can they be compelled to admit others than their own agents and servants upon their trains or to their stations, for the custody, care, receipt and delivery of freight or parcels." The fact that the company had given plaintiff special facilities under a special contract, was considered no good reason for forcing defendant to continue the extra accommodations after the contract was at an end. The statute of 1867, c. 339, requires railways to give to all persons or companies reasonable and equal terms and accommodations; but it was said that this did not forbid a company from carrying on the express business itself, and to refuse to allow similar G. KOERNER. privileges to other companies; since the manner in which the jury, or allowing the legislature to do so in such cases as railway shall fulfill its duty to the public is within the discre- mentioned, would be readily adopted by the people. tion of the directors. It is not material that the corporation carries on this business itself, or that this is ultra vires. The BELLEVILLE, Oct. 26, 1875. obligation of railways is to accommodate the public; and this being accomplished, the public and the law are satisfied. Special facilities are rightly the subject of sp.cial contracts alone. Unanimity of the Jury. The Hon. James R. Lackland. On the 9th ult. died the Honorable James R. Lackland, one of the foremost members of the Missouri Bar. At a meeting of the St. Louis Bar, held on the 16th inst., a beautiful memorial of his worth was formally expressed and There seems to be at the present time an almost universal adopted by his professional brethren. An interesting incipublic opinion prevailing that the requirement of unamimity in dent varied the usual exercises of such occasions. A wreath a verdict has become a serious defect in the administration of immortelles, produced at the meeting, was ordered to be of justice. The control exercised by the judiciary in Eng- hung in the room in which he had presided as Judge of the land over juries, the care with which juries are there selected St. Louis Circuit Court.' It will now be seen hanging there, from the more responsible and intelligent classes, have in some a touching memento of his fame and virtue. The expression measure prevented, in that country, the injurious consequences of affection and esteem in which his memory is held by his of the unanimity principle, which we but too often have wit-associates was earnest, sincere, and universal. nessed with us. We are sure that had they in England the same experience on the subject that we have, it would have been abolished there long ago. Many years ago the writer of this had prepared a bill, which was referred to the Committee on the Judiciary of the Legislature of Illinois, and received the approbation of that committee, though it failed to pass, in which he attempted to regulate the finding of a verdict in such a manner as to divest the unanimity feature of its dangers, without doing absolutely away with it. The idea was not an original one, for it was found in a law which was, and probably still is, in force in the Australian colonies of Great Britain; and was represented, in a very able article on the jury system in one of the English quarterlies, as working remarkably well. The bill before the Illinois legislature provided, that the court should minute the exact time when the jury retires to consider of their verdict, that a verdict rendered within a certain time, say six hours, must be unanimous (so as to prevent hasty decisions by less than twelve men); that after that | time, and within six hours following, a verdict of eleven should be received; within the next six hours, one of ten; within the next six hours, one of nine; and after that, one of eight. This was the principle of the law proposed. Perhaps it might have still been improved by allowing a bare majority to find a verdict, provided the judge trying the case approved of it, which is a method adopted in some of the states on the continent. In these spontaneous tributes of honor to the memory of the deceased, the St. Louis Bar has unquestionably honored itself. It would have been a reflection on its own title to the high position of integrity and usefulness to which it aspires, if it had passed the death of such a distinguished and beloved chieftain in silence and indifference. The brilliant and eventful career of the deceased, as well as its sorrowful termination, ought to be a subject of the profoundest interest to the profession in all its departments. The older our country and institutions become, the farther we seem to leave in the past the type of character which distinguished the life of this eminent jurist and advocate. James R. Lackland was born in Maryland in 1820. His father emigrated to Missouri in 1828, and settled on the homestead in St. Louis county, from which the lifeless remains of his honored son were carried to Bellefontaine Cemetery on the 11th ult. Like all the immediate descendants of the pioneers of the West, he was educated to a manhood of usefulness by the toils and privations which attended his youth. In the labor of the farm, in which he engaged to assist his father in the support of the family, he first learned and appreciated the reality and earnestness of life. His means of education were necessarily limited by the circumstances of his situation. Nevertheless, he acquired by his own enterprise, and the assistance his father was able to afford him, a fair English education. It seems that he started While on this point it may also be suggested whether the out in life, when he left the homestead, without any thought jury trial should not be dispensed with in many cases. It of the legal profession, engaging first as clerk in a wholesale should perhaps be maintained in all criminal cases, and all ac- grocery business, next as an assistant clerk on a steamboat on tions sounding merely in damages, as they are technically the river. Mere chance or accident gave him employment called, or in all cases where both parties consent to it. It is in the clerk's office of the St. Louis Court of Common Pleas. well known that most lawyers are agreed that in cases of con- It was while engaged in this employment that his attention was tracts, land titles, accounts, etc., no more unsatisfactory mode first turned to the legal profession. He immediately commenced of trial could have been devised by the ingenuity of man the study of the law while still discharging his duties as depthan that by jury. We try the most important chancery cases uty clerk. Entering the office of Hon. Charles D. Drake now by the courts exclusively; and, under the supervision of soon thereafter, he was admitted to practice in 1846. · higher courts, this mode of deciding cases has proved to be acceptable. The constitutions of many of our states may have to be changed to allow this latter improvement in our jurisprudence; but it is pretty certain that an amendment doing away with a At the threshold of his career, he met the usual discouragements allied with the "toil and endeavor" of the young practitioner, which were not in any way mitigated by the presence of either fortune or influential friends. But no one was better qualified to surmount such adversi |