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the plaintiff, by accepting the amount allowed him by the board of supervisors, with knowledge that the balance had been rejected, cannot maintain the action we cannot consider the effect of an approval of the claim by the board of health. Brick v. County of Plymonth. Opinion by Rothrock, C. J. [Decided April 25, 1884.]


COSTS-DISMISSAL OF SUIT — DISCRETION. - Whenever an actor or plaintiff declines to proceed further and dismisses his own suit, he thereby takes on himself the costs he has caused to be incurred. 2 Dan. Ch. Pra., star page, 1376 et seq.; Beames on Costs (22 law lib.), star page 228; Cooth v. Jackson, 6 Ves. 12, 41; Brooks v. Byam, 2 Sto. Rep. 553; Eastburu v. Kirk, 2 Johns. Ch. 317; Saunders v. Frost, 5 Pick. 259; Due v. Pidcock, 7 Halst. 363; Bruce v. Gale, 2 Beasly (N. J. Ch.), 211; Moses v. Dade, 58 Ala. 211; Wykam v. Wykam, 18 Ves. 395, 423. The present case is presented in a different aspect. After the original bill and the original answers were filed, the defendants purchased their peace, or purchased the complainant's cause of action. One term of the contract was that complainant was to dismiss his suit. This he failed to do, and defendants were forced to set up the release in bar of the further prosecution of the suit. They did this in an amended answer. They probably should have raised it by cross bill; but no objection was made to the form of its presentation. Moses v. Dade, 58 Ala. 211; Jones v. Clark (in MS.), Ala. Being raised by the pleadings and the case going off on that defense, the exercise of the judicial function was necessarily called into requisition. This case is therefore brought directly within the rule which allows to the chancellor a discretion in the imposition of costs; a discretion which we cannot revise. Allen v. Lewis. Opinion by Stone, J. [Decided Jan., 1884.]

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FLIGHT Flight from a charge of crime raises a presumption of guilt; but this presumption may be modified or overthrown by evidence showing that the flight was occasioned by other causes than consciousness of guilt, and when there is such evidence the jury should be directed to consider it and determine how far it tends to rebut the presumption. State v. Phillips, 24 Mo. 475; State v. Williams, 54 id. 170; State v. Mallon, 75 id. 355. Sup. Ct., Mo. State v. King. Opinion by Hough, C. J. (78 Mo. 555.) [See 7 Am. Rep. 592; 35 id. 69; 119 Mass. 312; 56 Ga. 113. Must be actual, not constructive. 8 Phila. 606.--ED.]

As a

INTENT-KNOWLEDGE-CHARGE ERRONEOUS.-On au indictment for selling cattle, knowing them to be under quarantine, evidence was given on the trial of facts tending to create a belief in the mind of defendant that the quarantine had been removed when the sale was made. It was held error in the court to refuse on request to charge for an acquittal if the jury found that the defendant did so believe in those facts. general rule intent and knowledge is of the very essence of crime, and wherever a statute makes a guilty knowledge part of the definition of an offense, knowledge is a material fact to be averred and proved. Rex v. Jukes, 8 T. R.536. And the burden of proof, which in such case does not shift, is cast upon the State. 1 Lead. Cr. Cas. 553. The sale of cattle is in itself an innocent, lawful act. The statutory offense is selling in violation

of a known the case that a defendant, on fair and just grounds, believed the legal impediment to be out of the way, guilty knowledge is disproved and a defense is made. Sup. Ct., N J. Hess v. State. Opinion by Knapp, J. (16 Vroom, 445.) [Where intent is an essential element to constitute a crime the defendant may testify as to it. 60 N. Y. 221; 18 Am. Rep. 158.-ED.]

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Editor of the Albany Law Journal:

Will you allow me through the JOURNAL to say a few words on the one sentence of Mr. Fowler's learned and enthusiastic essay on "Codification in the State of New York," which appears to me to bear upon the practical question of the adoption of Mr. Field's Civil Code?

On page 66, Mr. Fowler declares that " a poor Code is better than no Code." His idea of a Code may be gathered from what he says on page 16. “A true statement of codification is concerned only with those larger principles indicated; those which have the force of law universally, or independently of the peculiar group of facts to which they have been applied."

Is it not conceivable that these "larger principles" should be stated in a statute so imperfectly, that our legal system would be thereby injured, instead of benefited? We all know what work our Legislature makes with very simple principles; by calling a statute a "Code" we cannot secure it any especial immunity, although Mr. Fowler appears to think so. He says on page 52: "But this may safely be claimed for codification. It will tend to certainty in legal administration; it will enable us to remove the enormities of the case law; it will render the frame-work of the law accessible to the unlearned, and mainly it will afford more exact bases for forensic discussion. It will also introduce simpler methods of logic. * ** Another merit may be and is claimed for codification, that it will ultimately necessitate a higher type of legislative activity." Will any statute, no matter how "poor," if called a "Code," necessarily produce any or all of these results?

If not, can any one favor Mr. Field's Code, without having convinced himself by an examination that it is not a "poor" Code? That examination is all that the opponents of the Code ask for. But it should be made, not as though a digest were being examined, by taking one or two sections and ascertaining their agreement with the authorities, but by an examination of the whole work and by a comparison of the different parts, so as to ascertain how it will stand the strain which will be put upon it, after it becomes a statute, when immense interests may depend upon the interpretation of any sentence and when every other section will be ransacked to find aid for the various interpretations. Every lawyer of whom I happen to know that he has personally examined this Code thoroughly, agrees with the opinion expressed in my pamphlet of 1882, that is "poor" beyond amendment; and the object of this letter is to emphasize the fact that whatever opinion lawyers may hold on the subject of codification in general, no one should advocate this Code without having examined it thoroughly, and examined it as a statute.

Respectfully yours, NEW YORK, Aug. 20, 1884.



THE American Law Review for July-August con

tains the following leading articles: A short history of the Supreme Court (England) and its procedure, by T. W. Tempany; Injunction against Criminal Acts, by Seymour D. Thompson; Liability of Employer, for wrongful acts of persons serving him in the course of an independent employment, by H. A. Har


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The Albany Law Journal.




E have received from Mr. Simon Sterne, and have perused with pleasure and instruction, the paper which he read at the late meeting of the American Bar Association, on Prevention of Defective and Slipshod Legislation. It is an exceedingly able and suggestive production, and was eminently worthy of the discussion which it elicited, and of the reference made of it to the committee on jurisprudence and law reform. We shall give the paper in full week after next, and we hope our State Bar Association will pay heed to its lessons. The reader will find in it an excellent account of the English methods of legislation, which will probably be novel to most of them, and some pregnant comparisons between those methods and our own. This is

a most vital topic, and Mr. Sterne has struck it vigorously. Perhaps we should not quite agree with him about bi-ennial sessions; that is to say, while we might agree that the reason generally given for them is unsound, yet really there may not be in most States any need of more frequent sessions. We might, perhaps, also consider some of Mr. Sterne's analogies a little out of parallel. We are much impressed by his idea that there is less legislative corruption than there seems, and that most of the attempted corruption reaches not beyond the lobby. Unquestionably, many a good legislator's vote is supposed by promoters or opponents of bills to be bought and sold, without his ever hearing of such a transaction, or even being approached. We would fain believe in Mr. Sterne's theory on this point. We commend his suggestions to our senators, some of whom we know to be genuinely interested in the idea of improving and regenerating our legislative methods and practices.

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We feel relieved. We have found out the cause of that earthquake the other day. It was the "sensation" created by her blessed majesty, the queen's proclamation, "that in all times hereafter the judges of county courts in England and Wales shall be called, known and addressed by the style and title of "His Honour" prefixed to the word "Judge "before their respective names, and shall have "Rank and Precedence next after Knights Bachelors." We hope Henry, Duke of Norfolk, will see to this at once, as the queen commands him.

Such privileges as the above ought to compensate for some pecuniary disadvantages of the legal profession in England, as for example, the inability of a barrister to compel payment of his fees. In a recent case the Master of the Rolls said that any agreement as to fees between solicitor and barrister "was wholly unprofessional, and equally dishonorable to both parties." The barrister's only safety is in exacting his fees beforehand, and this seems to us an unreasonable requirement. It seems to us a great deal better to let every barrister be his own attorney and solicitor, if he wishes, as is the custom among us. This seems to us as little demoralizing as all this business of retainers, reminders, refreshers, etc.

In a notice of Dr. Wharton's "Commentaries on American Law," the London Law Times remarks: "It is a curious point that while the judgment of the Supreme Court of the United States as to the constitutionality of any given proceeding is decisive as to the case in litigation, neither the executive nor the legislature are concluded thereby from acting directly in the teeth of the court's decision. And we may here note that a description of the executive as 'he' reads extremely oddly. The striking point about the whole is the excessive deliberation with which over-hasty legislation is guarded against, and the very careful provision made by the various amendments to the Constitution of the United States for the overruling of any legislation, either by Congress or by the several States, oppressive in its character to individuals or classes. And this brings us to a notable decision under the fourteenth amendment, in Kinney's case, 30 Gratt. 858, in which it was held that a State law forbidding marriage between whites and persons of African descent does not discriminate against the latter, because the prohibition applies to both cases alike. Similarly it has been held in Pace v. Alabama, 106 U. S. 583, that affixing a greater punishment to adultery between a negro and a white than is imposed on adulterers of the same race does not discriminate against persons but against the offense.

Logically, it may be allowed, these rulings are defensible, but it is not a little amazing that Dr. Wharton records these decisions without a word of disapproval, and even seems disposed to defend them." It is curious how incapable the English seem to be of comprehending our Federal system and laws.

We regret the necessity of dividing Mr. Courtlandt Parker's address, the first installment of which we give this week, but we judged it better to divide it than to give up a whole number to it. It is an important paper, and as it comes but once a year we do not grudge the space. Its history of New Jersey railway taxation is very interesting.

of upsetting the testament, and invoked to his aid
the old familiar friend of lawyers-"mental inca-
pacity." He filed a bill in Chancery, and by con-
sent an issue devisarit vel non was sent down for
trial, and came on for hearing before Cresswell, J.,
and a special jury at Stafford Assizes on Saturday,
March 15, 1856. For the widow, plaintiff on the
issue, Sir F. Thesiger, afterward Lord Chancellor
Chelmsford, was specially retained to lead, and on
the other side appeared the famous Chief Justice
Cockburn, then attorney-general.

On the first day's hearing the ladies who had written the letters after the son's death were called, and in cross-examination admitted their previous statements as to the old man's incapacity to recognize his loss, he having actually stated to one of them that the person dead was Mrs. Swinfen.

A LEGAL ROMANCE, OR THE SWINFEN | Other damaging points also were made against the



HOME thirty years ago there dwelt in Stafford-
shire an old country gentleman named Sam
Swinfen, the possessor of an estate valued at be-
tween £60,000 and £70,000. He had inherited his
property somewhat unexpectedly, and was accus
tomed to complain of the ruinous condition in
which he found it, the Manor House, Swinfen Hall,
being so dilapidated as to be almost uninhabitable,
and the most valuable article therein being, as he
averred, a half barrel of sour beer in the cellar.
This state of things he ascribed to the extravagance
of his predecessor in the title, and for many years
he and his wife passed a secluded life in two rooms
of the old mansion on her death in 1848, how-
ever, he invited his only son, H. I. Swinfen, to take
up his abode with him. This the younger man
did, bringing with him his wife, with whom he had
contracted a romantic marriage against his father's
approval. The old sore was healed, and a complete
reconciliation took place. The son set about im-
proving the estate, with marked success, and all
went well till the latter's sudden death in 1854.
The father was now eighty years of age, and in a
state of physical, and as it was then thought, men-
tal paralysis. In fact, friends of the family, writ
ing in the widow's behalf in answer to letters of
condolence, stated that old Mr. Swinfen was hap-
pily spared the shock, being incapable of understand-occasion like Maria Theresa, and abandoned by all
ing the loss he had sustained." Under these cir- she quietly returned to the Hall, and awaited
cumstances the widow, who, let us state at once, is events. Speedily possession was demanded and
the heroine of our tale, actually took some steps to refused. The heir's next step was to take a rule nisi
test his sanity, but the doctors differing, nothing for attachment against her. This was quashed on
was done.
the ground of insufficient proof of disobedience
(Swinfen v. Swinfen, L. J. R. 25, C. P. 303), but the
court consisting of Cresswell, Williams and Willes
all seemed to agree that the compromise was

will, and Thesiger was so impressed that he sent
for the widow to his lodgings, and strongly urged
her to leave the matter in his hands to settle as best
he could. It appears the judge had privately inti-
mated to Thesiger his opinion that the case was
going against him, and Thesiger led the widow to
understand that the defendant offered to settle on
her an annuity of £1,000 if she would give up the
estate. This, with that courage and pertinacity
she showed from beginning to end of the litigation,
she absolutely refused. She was ultimately pre-
vailed upon to take the night to think the matter
over, but next morning saw no change in her de-
termination, and she telegraphed to Thesiger
"offer refused." We may judge then her astonish-
ment, when on arriving at court on Monday morn-
ing, she was met by her counsel leaving the court
room, and coolly informed that he had done the
best he could for her, and had settled the matter
on the terms originally proposed. Sir H. Burrard
was with her, and demanded of Thesiger by whose
authority he had acted. "By yours," replied Thesi-
ger. The deuce you did!" exclaimed Sir Harry.
Thesiger, however, marched off, and the widow was
left to digest the situation as best she could.


But if the heir had a verdict, the widow had possession, and to possession she clung. From the beginning she had asserted that she would stand or fall by the will, and at this crisis she rose to the

The old gentleman, in fact, was not insane. He knew that in default of a will the estate would pass to the heir-at-law and representative of his predecessor, Captain Swinfen, of the Sixth Dragoon Guards, and after due consideration he gave instructions for, and executed a will, whereby he devised the whole property to the widow. The will was made on July 7, 1854, and on the 26th of the same month the testator died. Thereupon, Captain Swinfen cast about for means tinctly that the mere relationship of counsel and

Another rule accordingly was taken out (Swinfen v. Swinfen, L. J. R., 26 C. P. 97), in answer to which Mrs. Swinfen made an affidavit setting out all the facts. Fortunately for her Crowder, J., happened to be sitting this time, and he held dis

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client did not give a general power to compromise, and that there was no special authority shown, but on the contrary an emphatic repudiation. The other judges held to their previous views, but the practice of the court being to confirm rules for at tachment only when the judges were unanimous, the rule fell through, and the widow escaped as by fire.

The heir, who evidently had more confidence in the verdict already obtained than in the result of a fresh trial, went to chancery with a supplemental bill for a decree for a specific performance of the compromise (Swinfen v. Swinfen, 27 L. J. R. Eq. 35), and now a fresh actor appeared upon the scene, in the person of Kennedy, a provincial barrister prac-ford, ticing at Birmingham, who had taken up the forlorn widow's cause, and who proved a champion very different from Thesiger. The Master of the Rolls, Romilly, in an able and exhaustive judgment, rejected the compromise, taking the same view as Crowder, that counsel had no power to give estates away at his own discretion. He instanced with approval a case within his own knowledge where a great advocate had in open court refused to consent to a compromise actually agreed to by his client, on the ground that the client did not understand the sacrifice he was making, and refusing the specific performance prayed, he ordered a new trial.

This judgment was the first crumb of comfort that had fallen to the widow's lot, but was, of course, far from pleasing to the heir, who appealed -only to get an excoriation from the lord justices (Swinfen v. Swinfen, 27 L. J. R. Eq. 69), Knight Bruce observing that the heir's attempt was only a pis aller, and varying the Master of the Rolls' decision in the widow's favor, so far as to give her costs of the suit.

The new trial accordingly came on at Stafford in March, 1858. The evidence of the letters remained, but a mass of other evidence was put in, all tending to show that the testator's mental faculties, if impaired at all, were not so damaged as to deprive him of testamentary competency. The judge summed up against the widow, but the jury were not influenced by his lordship, and returned a verdict establishing the will, a result due principally to the able advocacy and thorough mastery of the case displayed by Kennedy.

The heir was not yet shaken off however. He went to the Master of the Rolls for a new trial (Swinfen v. Swinfen, 28 L. J. R. Eq. 849), but far from getting it the Master stated that had the verdict been otherwise he would have sent the case down again. In the course of argument Kennedy went far and wide for instances of physical imbecility combined with mental competency. Many eminent characters in history were referred to, amongst others the great Marlborough, who stricken with paralysis, his mouth awry, unable to articulate, was yet competent to make a most important codicil just before his death. Lord Eldon, the famous chancellor, Sir Herbert James Fust, who suffered from the very disease which affected the

testator, and a recent judge (not named) who, though struck with hydrocephale, yet performed his duties "with transcendent ability" to the very last. The whole report, in fact, is well worth reading by the student of medical jurisprudence.

The writer ventures to think, from his limited observation of human nature, that the desire for vengeance is usually stronger with the fair sex than with their soi-disant lords and masters. Mrs. Swinfen was no exception to this rule. Flushed with victory she now entered the lists against her late counsel, the august chancellor himself, and sued Lord Chelmsford for damages for a "fraudulent " compromise against instructions. Swinfen v. Chelms

L. J. N. S. Exch. 383. This however was a little too much, and the court unanimously dismissed her suit, and settled by its decision the powers and responsibilities of counsel. And here, if this were a novel, and not a statement of facts, would come the obvious and happy conclusion, viz.: the marriage of the plucky widow to her devoted advocate, and the usual notice in the Times, "St. George's, Hanover Square - Swinfen to Kennedy. No cards.” But unfortunately the affairs of mankind seldom end correctly. Mrs. Swinfen did not become Mrs. Kennedy, but she did become Mrs. Brown, and thereupon followed another great suit, viz.: the leading case of Kennedy v. Brown and Wife, 32 L. J. R., C. P. 137. Kennedy alleged that having given up his other practice, and devoted himself wholly to the advocacy of the widow's rights, both at the bar and by writings and pamphlets, "designed to render her cause popular," she had agreed in return to pay him a fee of £20,000 in the event of success, and for this sum he sued. Upon the argument English common lawyers became civilians for the nonce, and went deep into the mysteries of the "lex cincia," and the old usages of the Roman patrons and advocates. C. J. Erle presided, and delivered perhaps his finest judgment, settling what in fact had hardly before been seriously doubted, that an English barrister's fee is an honorarium, and cannot be made the subject of a legal claim. He was terribly hard on poor Kennedy, but as a specimen of judicial eloquence his deliverance can hardly be surpassed, and we cannot resist the temptation of quoting therefrom the following description of a model advocate: "We are aware that in the class of advocates, as in every other numerous class, there will be bad men taking the wages of evil and therewith also for the most part, the early blight that awaits upon the servants of evil. We are aware also that there will be many men of ordinary powers performing ordinary duties without praise or blame, but the advocate entitled to permanent success must unite high powers of intellect with high principles of duty. His faculties and acquirements are tested by a ceaseless competition, proportioned to the prize to be gained, that is, wealth and power and honor without, and active exercise for the best gifts of mind within. He is trusted with interests and privileges and powers almost to an unlimited degree. His client must

trust to him at times for fortune and character and | civilization. The citizen upon the Pacific coast cannot

help but differ somewhat from his brother in the far
east. The sons of New England are not the same in

habits of thought, ir universally held opinious and gen-
cral character with those who belong to the middle
States, and they are even farther removed from the
dwellers in the far south. The southern Atlantic States
contain a population in many respects different from
that of Texas, Arkansas, and even Mississippi, Tennes-
called when Ohio was still a western State, is very dif
see and Kentucky. The western man, who was so

ferent in his individualities from all that I have men-
tioned. And as you approach the Rocky mountains
and the Pacific the character of the general western
man changes, the boundaries of each State seeming to
have something to do with creating diversity of
thought, and of mental and moral being among our
citizens. There seems to be something in mere bound-
ary everywhere, which makes men on either side differ
from each other; this is especially perceptible in the
Old World, and very remarkable in Great Britain.
How different the Scotchman, Irishman, Welshman,

and Englishman! And yet they live largely under the
very same laws, and have but one Parliament. Much
more remarkable is the difference apparently created
merely by shire or county lines in England itself, so
that there are found there over twenty dialects-dia-

lects such that it is difficult for the residents of one
county to be understood in another, though all profess-
ing to speak the English tongue.

We in America have no differences so strongly
marked as those we find still existing in the two small
islands forming Great Britain. But there are differ-

ences nevertheless between the inhabitants of different
sections. Hence in performing the task allotted to me
I shall not mention the States alphabetically, nor ac-
cording to seniority of settlement, but shall note their
statutory changes according to the grand geographical
We have east-
divisions existing by common consent.
ern, middle, southern and western States. I shall re-
mark upon them in this order.

An advancing public sentiment tiring of the too
often recurrence of legislative machinery has very much
lightened the labors of your present president, while
the slowness of printers and other causes have never-
theless made his task quite sufficiently hard. There
are now no less than twenty States whose Legislatures
hold only biennial sessions. Such is the case in Maine,
Vermont, New Hampshire among the eastern States;
in Delaware among the middle; in Illinois, Michigan,
Wisconsin, Missouri, Nebrasba, Colorado, Minnesota,
Oregon, Nevada among the western; in Tennessee,
West Virginia, North Carolina, Alabama, Florida,
Louisiana and Arkansas among the southern and
south-western. From none of these have I any report
at this time to make. The Louisiana Legislature is
now, or lately was, in session; too lately however to
afford any report. In Maine an adjourned session has
been busy passing into laws a revision of their general
law made by a designated commissioner.

Biennial sessions of Legislatures seem exceedingly popular among the members of this association, and it is supposed the bar generally. The member of the General Council for one State writes that its Legislature "convenes only in biennial session, and that since the last meeting of the association the State has been mercifully spared from any change in the existing law, as well as from the enactment of any new statutes." Others express the same feeling, though with less pious unction. Nor can one help sympathizing with it, and hoping that one day all of the thirty-eight commonwealths now existing in our wide domain may rest at least one winter or two from "noteworthy statutory changes."

The idea of yearly legislative sessions came to us

* * *

life. The law trusts him with a puvilege, in re-
spect of liberty of speech, which is, in practice,
bounded only by his own sense of duty, and he
may have to speak on subjects concerning the
deepest interests of social life, and the innermost
feelings of the human soul.
If an advo
cate with these qualities stands by the client in the
time of his utmost need, regardless alike of popu-
lar clamor and powerful interest, speaking with a
boldness which a sense of duty can alone recom-
mend, we say the service of such an advocate is
beyond all price to the client, and such men are the
guarantees to communities of their dearest rights, and
the words of such men carry a wholesome spirit to all
who are influenced by them. Such is the system of
advocacy intended by the law; requiring the re-
muneration to be by gratuity." And he then pro-
ceeds with little difficulty to show, from a long
course of precedent, that such an action as the
present could not lie.

After this nothing was left for Kennedy but ruin, to which he added disgrace, by certain unsavory statements made in the bitterness of despair. He was disbarred, and died broken-hearted, perhaps the only instance of a lawyer who saved his client and ruined himself.

As for Mrs. Swinfen, she may, for all the writer knows, still be living full of years and honors at Swinfen Hall, but if so, she is the sole survivor of the dramatis persone in the "Swinfen cases." Thesiger, Cockburn, Romilly, Knight Bruce, Erle, and all the other erst famous advocates and judges who figured in this long litigation, have now passed to a world where, it is to be presumed, briefs and special retainers are unknown, and new trials are not allowed.



To help to make the Nation one is an evident result

to be expected from the complete success of this Association, even if it was not avowed by its original framers. The bar have, all know, the most to do with suggesting, and ordinarily a very large share, directly or indirectly, in the framing of statute law. Familiar communion among them tends to harmonize opinions and action, and do away with those variances, if not conflict, in the institutions, legal customs, laws and polity of the different States, which so powerfully interfere with the oneness of the whole people. And as I suppose, with direct intent to aid in the most desirable result, more than simply to give information which may profit us as practitioners, was the provision of our Constitution which I am now called upon to obey, that your president at each yearly meeting shall communicate "the noteworthy changes in statute law, in the various States and by Congress which have occurred since the last meeting."

Climate, early settlement, and various other circumstances affecting locality have grouped the States of this Union in such a way as to create shades of difference not in the degree, but in the character, of their

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