large steamer, evidently engaged in turning around in a way that must cross the course of the former, is bound to keep out of her way, and give room for her necessary path in turning. When that duty has attached, she cannot relieve herself of it by getting across the bows of the latter and claiming that the latter is then in the position of a following or overtaking vessel. The Franconia, 2 Prob. Div. 8; The Cayuga, 14 Wall. 270. There was danger of collision from the very act of sheering to the westward, and the Unit was therefore bound to refrain from such a change. The Nichols, 7 Wall. 656; The Free State, 91 U. S. 200. (2) A large steamer, engaged in making a turn in the East river, is bound to special watchfulness and care to avoid contact with other vessels. The lookout having failed to continue his attention to a tug and tow on the opposite side of the river, and a collision having happened, which by such attention would have been avoided by the steamer's timely backing, held, that both were in fault, the steamer for inattention, and the tug for steering across the steamer's path, instead of stopping, as he might have doue. The previous fault of the tug did not relieve the steamer of her duty to keep constant watch for the purpose of avoiding injury. The Maria Martin, 12 Wall. 31; The Vim, 12 Fed. Rep. 906; The Pegasus, 19 id. 46. Dist. Ct., S. D. New York, April 29, 1884. The State of Texas. Opinion by Brown, J. REMOVAL OF CAUSE-AMOUNT IN DISPUTE-ACT OF 1875-CITIZENSHIP.-(1) In order that a cause may be removed from the State courts to the United State courts, under § 639, Rev. Stat., the sum in dispute, exclusive of costs, must exceed $500 at the time of the commencement of the action in the State courts. In Spear on the Law of the Fed. Judic., at p. 462, speaking of the amount in dispute, the author says: "The absence of this condition is fatal to the right of removal as given by the statute. The right depends upon a statute, and the facts as they existed when the suit was commenced in the State court in respect to the sum or value in dispute must determine whether this particular condition of the statute is present,' citing Roberts v. Nelson, 8 Blatchf. 74, 77. This author adds: "These general provisions of the statute apply to all the cases enumerated therein, and constitute a part of the legal requirements in the removal of these cases from the State courts to the Circuit Courts of the United States." (2) A suit cannot be removed from a State court to the United States courts under the act of 1875, unless the requisite citizenship of the parties existed both when the action was begun and the petition for removal filed. That proposition is maintained by a line of authorities cited in Spear Fed. Jud. 501, 502, among which is Jackson v. Ins. Co., 3 Woods, 413, opinion by Judge Woods. There is however a line of authorities to the proposition that the cause cannot be removed unless the required citizenship existed, not only when the petition for removal is filed, but also at the time the action is begun in the State court. The case of Houser v. Clayton, 3 Woods, 273, opinion by Justice Bradley, and the case of Kaeiser v. Illinois Cent. R., 6 Fed. Rep. 1, opinion by Judge McCrary, of the Eighth Circuit, are cited, and other authorities to the same proposition; Spear Fed. Jud. 502, 503. The Supreme Court of the United States, in the case of Gibson v. Bruce, 2 Sup. Ct. 873, hold that a suit cannot be removed from a State court, under the act of 1875, unless the requisite citizenship of the parties exists both when the suit was begun and when the petition for removal is filed. Cir. Ct., N. D. Ala., April, 1884. Carrick v. Landman. Opinion by Bruce, J. 66 NEBRASKA SUPREME COURT ABSTRACT. LIMITATION ACKNOWLEDGMENT — OPENING AND CLOSING.-(1) A writing signed by the party as follows: I am sorry that you have had to pay the notes of Frank Pillond and myself, upon which you were surety for us. I cannot at this time pay you the money, but propose to pay you my share, which I am told is about $413. I hope to be able to pay you soon, but will let you know in a few days what I can do;" held, to take the debt out of the statute of limitations. (2) A partial payment, acknowledgment of the debt, or promise to pay, made after the debt is barred, will revive it. (3) A defendant is not entitled to the opening and closing on a trial, unless he by his answer admits the allegations of the plaintiff's petition, and relies entirely upon an affirmative defense. Rolf v. Pillond. Opinion by Reese, J. [Decided May 28, 1884.] CONTRACT-ILLEGAL-PUBLIC POLICY.-No court of law or equity will iend its assistance in any way toward carrying out an illegal contract, therefore such a contract cannot be enforced by any one party against the other, either directly, by asking the court to carry it into effect, or indirectly, by claiming damages or compensation for a breach of it. Sykes v. Beadon, 11 Ch. Div. 170; 27 Eug. R. 435, note. A contract by which G. & K., who were the holders of a license to trade with the Fort Peck Indian agency, agreed to pay to K. & S. the one-half of the net profits of such trade for the consideration of the said K. & S. purchasing all goods and supplies necessary and proper for said trade at their own account and credit, and immediately resell and invoice such goods to said G. & K. at said agency at cost price, cost of transportation and insurance added, and one of the said K. & S. take entire charge, management and control of said business, devoting his entire time and attention thereto, and residing at Fort Peck, is illegal, for the reason that it contemplates the violation of the statute as well as the public policy of the government of the United States. Chief Justice Marshall, in the case of Armstrong v. Toler, 11 Wheat. 268, stated the law with great clear. ness and perspicuity in the following language: "Ques tions upon illegal contracts have arisen very often, both in England and in this country, and no principle is better settled than that no action can be maintained on a contract, the consideration of which is either wicked in itself or prohibited by law." We have seen above, to my own satisfaction at least, that the plaintiffs and defendants in the case at bar cannot be consid. ered as partners, for the want of an intention on their part to establish that relationship, as expressed by the language of the contract, as well as the lack of mutuality of its terms. It cannot be claimed that the plaintiffs are entitled to this remedy for the purpose of fol lowing their money or property in the hands of the defendants, and claiming a share of its product or earnings, for they have placed neither money, property nor services there. They have given to the defend. ants, so far as they could, the ægis of their license, for which the defendants promised them a certain share of the net profits of their business; but as we have seen, the consideration being illegal, that promise can not be enforced. It may be claimed that the defendants, having done business in the name of the plaintiffs, are estopped to deny the interest of the plaintiffs in that business. That would probably be so, could the plaintiffs' case ever reach the point at which the defendants are required to develop their defense: but the difficulty is in the inherent weakness of the plaintiffs' case. They cannot reach the enemies' works except through the contract, which, by reason of its ille gality, is "no thoroughfare" for them. Gould v. Ken founded, to but if an indictment professes do 80, a material variance will be fatal: or if the statute does not support the verdict, it must fail. If there had been no allegations in the indictment as to the law, the indictment might have been sustained; but as these allegations make it quite evi. dent that the finding of the grand jury was upon a law which had been repealed I think that judgment must be United arrested. Cir. Ct., Dist. N. H., May 13, 1884. States v. Goodwin. Opinion by Clark, J. (20 Fed. Rep. 237.) NEGLIGENCE-DEFENDANT'S QUESTION FOR JURYOF PARENT NOT IMPUTED TO CHILD.—(1) The plaintiffs in error employed the defendant in error to labor for them in and about a cane-mill while engaged in crushing sugar cane. The defendant in error was a boy of the age of eleven years, and while feeding the mill his hand was caught between the rollers and so severely injured as to require the amputation of two of his fingers. This action was instituted by him, through his next friend, for damages resulting from the alleged SENTENCED TO DEATH-A SCENE IN AN ENGcarelessness of the plaintiffs in error, in requiring him at his age to feed the cane-mill, that being a dangerous employment. Upon the trial the plaintiffs in error requested the court to give a number of instructions, a part of which the court refused to give, to which refusal the plaintiffs in error excepted. The jury having returned a verdict in favor of the defendant in error, CRIMINAL LAW. LISH COURT. THE prisoner in the dock would not under ordinary circumstances attract attention. Shambling, undersized and listless, one may see dozens of his type hanging around the pit banks any Saturday afternoon, hungry, lazy loafers whose sole object is to drag through an animal existence with as little work as possible. Whether the repeated sight of the weekly arrival of the pay clerk with his bags of yellow sovereigns acted as a cumulative temptation to this man's vaguely brooding mind, or whether impelled by some sudden onslaught of the devil, we cannot tell, but one Saturday morning he was noticed lounging near the bank of the neighboring town, and when poor Meredith, little suspecting how short a span of life remained for him emerged therefrom, laden as usual with the colliery wages, the prisoner quietly followed and in broad day light, on a well frequented highway, almost in sight of the passers-by, shot him and decamped with the coveted bags. So bungling was the execution of the crime that detection and arrest were quick and easy, and now some two months after that fatal morning this commonplace criminal stands here to receive his wage and have his own span of days exactly meted out. The promising junior, assigned by the formal humanity of our law for his defense, has made the most of a hopeless case, resting principally upon a possible insanity of which there has been some faint evidence given, but the judge has covertly destroyed his slender plea,telling the jury that if such excuses are to be taken, our pris ons may at once be turned into lunatic asylums. Mere empty clap trap this, but when delivered from judicial lips by that incarnation of wisdom to rustic jurors, a judge on Circuit, it is abundantly sufficient to seal the prisoner's fate, and so after a quarter of an hour's livered their verdict. MANSLAUGHTER-FIGHT IN STREET.-Where F., a saloon keeper, and the defendant attempted to eject M. and others from a saloon because of their noise and disturbance, and after something of an altercation M. departed, with F. in pursuit, and immediately after-retirement, for decency's sake, the twelve have deward they engaged in a struggle in the open street and in the presence of many people, and F., when in danger of receiving personal chastisement, but not in such imminent peril as to justify the use of a deadly weapon, shot and killed M., held, that a punishment for manslaughter is not excessive, and that the verdict is sustained by the evidence. Sup. Ct. Iowa, June 6, 1884. State v. Fitzsimmons. Opinion by Reed, J. (19 N. W. Rep. 821.) INDICTMENT-PLEADING MATTERS OF LAW--SUR PLUSAGE. It is never necessary to set forth matters of law in a criminal proceeding. U. S. v. Rhodes, 1 Abb. (U. S.) 28. But if the indictment set out the of fense with greater particularity than is required the proof must correspond with the averment; nothing connected with the offense is regarded as surplusage. U. S. v. Brown, 3 McLean, 233. And it must be that if the law supposed to govern the offense be set out in the indictment, and the grand jury present it to the court as their finding, it cannot be rejected, if erroneous, because it was the ground of their action. In Butler v. State, 3 McCord, 383, it was held that an indictment need not recite the statute on which it is Is there no one here, beside ourselves, who feels a sickening doubt of the justice of the dreadful sentence just impending? Look at that wretched specimen of humanity, not a muscle of whose face or bands betrays what is passing in his dim brain. To the damning evidence, to his counsel's appeal, to the judge's summing up, to the verdict itself he has listened disconnectedly with that indolent lack of interest characteristic of his stupid class, himself the least concerned spectator in the densely crowded court, and now as the low tones of the judge pronouncing sentence strike on his ear, he looks up at him with a slight vague speculation in his eyes, evidently noting with dull surprise, the black cap which has suddenly appeared on the judicial wig. It is clear the judge is far too case-hardened to feel any qualms such as are troubling our less ancient conscience. Behind the expression of decorous pity on his face lurks an irrepressible self complacency which receives from the tremendous power he is now exercising, a gratification unowned, but real and deep. His well-modulated voice, bated to a theatric whisper, is under excellent control, and the lace handkerchief in his hand shows not the slightest quiver. This is his first circuit, probably his first murder case, and his hard self control does much to explain his personal unpopularity with the bar. But why does the keen and zealous B. down there, who as magistrate's clerk has been the main instrument of conviction, bite his moustache and look anywhere but at the dock? We know his kindly nature too well to have suspected him of gratification at the success of his well arranged proofs, but we did not expect that such success would cause him positive disquiet. Perhaps the prisoner's demeanor and appearance have impressed him, as they have ourselves, and he regretfully thinks of those little circumstances pointing to insanity which no one followed up, because in fact no one was paid to do so. However, the strain of the present moment will soon pass off, and when we dine together at the "Hop-pole" this evening our friend will be himself again. Look now during this interval of hushed attention, when even the "irresponsible frivolity" of the junior bar is silent, at the expression of all these faces whose eyes converge upon the prisoner. If instead of an English court of justice, the scene were a Roman amphitheatre, the act, a gladiator's death, the general expression of animal excitement might be more intense, but it is still sufficiently prominent to be painful. The same passion is being ministered too, and we feel it with the rest. Two persons only have their thoughts elsewhere. That young and handsome barrister, gazing abstractedly at the skylight, is the prisoner's counsel, who his duty done, has at his tongue's end hosts of brilliant expressions and striking appeals which come unbidden, now they are no longer needed, and that poor woman weeping bitterly in the distant corner, who can speak her griefs? At length the judge has finished his formal sentence and not less formal platitudes. The convict, passionless to the last, is hustled down the trap door to the cells below. In three weeks time he will pass through another trap door and "justice will be vindicated!" How the account will stand in better balanced books than ours, nor you nor we can tell, but the general rush from the court room scatters our dissatisfied reverie, and we return to the civil side where our interminable mining suit is dragging its slow length along. No danger that these slight indications in the evidence will be left unworked, for that is an issue involving money! CORRESPONDENCE. EXEMPTION FROM EXECUTION. Editor of the Albany Law Journal: In addition to certain enumerated articles in the inventory set apart, but not appraised, for the widow and minor children, they are also entitled to "other household furniture, which shall not exceed $150 in value." And by a still further provision they are also entitled to necessary household furniture, provisions or other personal property, in the discretion of said appraisers, to the value of not exceeding $150, in addition to the personal property now exempt from appraisal by said section." Under the last provision $150 in cash is sometimes allowed, or other property than household furniture. But the question is whether, under the former clause, "other household furniture which shall not exceed $150 in value," any thing but strictly household furniture can be set apart and appraised in lieu thereof. It would seem not by the strict letter of the law; and yet McClellan's Surrogate's Court Practice (2d ed.), at pages 377-8, in giving the form of an inventory filled out, enumerates under this provision as follows: THE COURT OF APPEALS DECISIONS. HE following decisions were handed down Tuesday, Oct. 21, 1884: Judgment reversed, new trial granted, costs to abide the event-William McKinley and another, appellants, v. Peter Bowe, sheriff, etc., respondent; Daniel N. Crouse and others, respondents, v. Laura Frothingham and others, appellants. Judgment affirmed with costs-People ex rel. Mills Water Works Company, appellant, v. John G. Forrest and others, respondents; Jacob Stroher, respondent, v. Philip B. Elting, appellant; Frederick Diederick, respondent, v. John Keon, appellant; Henry Bamber, receiver, etc., appellant, v. City of Rochester, respondent; Bronson C. Ramsay and another, respondents, v. City of Buffalo, appellant; Archibald M. McPherson, respondent, v. George Sandrock, appellant; Jules L. Redmond, appellant, v. Jas. T. Eaton and another, respondents; Wells A. Bingham, survivor, etc., appellant, v. Richard C. Harris and others, respondents: Charles B. Perry, appellant, v. Cyrus Strong and others, respondents; Samuel M. Pettengill, appellant, v. Alfred S. Barnes, respondent. -Judgment affirmed-People, respondent, v. John McKeon, appellant.-Appeals dismissed with costsMarion Hovey et al., appellants, v. William E. Dodge et al., respondents; People ex rel. Board of Supervisors of Chenango County, appellant, v. Board of State Assessors, respondent.-Order modified and affirmed without costs-Marion G. Washburn (formerly Catlin), respondent, v. William H. Catlin, appellant.-Order affirmed with costs-Stephen C. Johnson, appellant, v. New York, Ontario and Western Railroad, respondent; People ex rel. Willard Van Houton, appellant, v. Ambrose Sadler, superintendent, etc., respondent; In re Claim of Receiver of Guardian Savings Bank, respondent, v. S. F. Knapp, receiver, etc., of Bowling Green Savings Bank, appellant. The Albany Law Journal. ALBANY, NOVEMBER 1, 1884. CURRENT TOPICS. lawyer," and that he is either too modest or too censorious. As for the rules which the writer in the Century lays down, they are mere truisms. Of course "a lawyer ought to be a gentleman; " "ought not to lie; ""ought not to sell his services for promotion of injustice and knavery." But to assert that the typical lawyer does either of the two latter [R. THEODORE BACON seems to have taken things is to beg the whole question. And as for the the morals of protes clergyman put question We are not going to find fault with him for this, nor to call him a pharisee or a hypocrite. But we may be allowed to say that we think he exaggerates, as most reformers do, at least if he is correctly reported in the Century for November as having said to the Social Science Association that "the typical lawyer is not the type of honesty." We think that lawyers are the honestest class of men on earth. We think this is so intrinsically, and by reason of their position. Intrinsically, as a class, they are much more honest than merchants, so many of whom cheat and lie; than people who gamble in stocks; than clergymen, so many of whom preach creeds that they do not believe - and we may add, to congregations which pretend to believe them but do not; than physicians, many of whom practice methods in which they have no faith, and hold out hopes which they know to be false; than editors, many of whom sell their opinions, and change them from day to day according to the exigencies of party demands, and advocate men whom and measures which they know to be unworthy, at the dictation of the caucus. By reason of their position they are honest, because they are called on to make no profession of belief, and make none, in the justice of their clients' causes. They are simply the mouth-piece of their clients, presenting their causes for what they are worth, and leaving the responsibility of decision with the proper tribunals. Mr. Bacon is quite right in saying that the lawyer generally believes he is right and his client is right. At the worst, he cannot know he is wrong until he hears the evidence on both sides, and even then it is his duty to see that the court does not apply a wrong rule of construction or discretion. So the writer in the Century on this topic of "Lawyers' Morals" is far astray when he says "there must be many dishonorable lawyers, for undeniably there is a vast number of civil cases in which one side is palpably in the wrong." This assertion we deny. We undertake to say that the writer of it does not know any thing of what he is talking about. Any lawyer could make him believe either side by turns of any case. The cases in which a lawyer can or ought to see at the outset that his client is wrong are extremely few. The cases in which the event shows that one side is palpably wrong are those depending on facts which can only be known after trial. As to questions of law it is extravagant to say that any one is ever palpably in the wrong, for the courts themselves are not harmonious with each other, nor with themselves for any length of time. In short, we think Mr. Bacon is the "typical VOL. 30- No. 18. the association, whether it is not the most highly educated attorneys who "prove the most facile and unscrupulous instruments as the advocates of large corporations and monopolies," we would simply remark that the most unscrupulous examples of thick and thin advocacy, and the most disgusting exhibitions of injustice which the world has ever seen, have been and still are in church councils. The ideal lawyer seldom has been better portrayed than in the following, by Judge Cassoday, of Wisconsin, in a recent address to the law class of the University of Wisconsin: "But remember the true lawyer is not, as some suppose, a skilled magician, engaged in the business of winning causes by withholding, suppressing and manufacturing evidence and perverting law, but an honest man who makes his client's cause his own, and then wisely counsels and ably maintains, regardless of the effect upon his personal interests. Such a man will be broad, generous, benevolent, forgiving, ready to spend and be spent, to sacrifice and be sacrificed, in order that his convictions of right and justice may be triumphant. His purpose will be to build up rather than to pull down-to heal wounds rather than to make wounds to praise others rather than to traduce others - a peace-maker rather than a peace-breaker. He will be thoroughly master of himself— master of his temper— master of his disposition * * * master of his will master of all his faculties. He may sometimes lose his cause, but will never lose himself. He will always be loyal to the truth and the law as well as his client, to his conscience and his country as well as himself. He will be a minister of justice - called by the good, because he is wanted - retained by the wise, because he is useful trusted by all, because he is honest. In the common law we must ever look to the great English lawyers and judges who took the law in its infancy and reduced it to a philosophical science. We are not however to blindly worship, but to wisely discriminate, for while we are always to admire all noble qualities of head and heart, yet we are to reject as unworthy, all hate, arrogance, envy and jealousy, even in men like Coke-all corruption, even in men like Bacon- all superstition, even in men like Hale-all coarse vulgarity and profanity, even in men like Thurlow - all abnormal ambition and conceit, even in men like Loughborough - all prejudice and malignity, even in men like Burke-all deceptive plotting, even in men like Eldon - and to spurn with contempt all cruelty and wickedness in men like Jeffreys - all vacilation, knavery and profligacy in men like Shaftesbury — Mrs. James Bennett sends us two copies of a pamphlet, entitled "An appeal for Woman Suffrage,' an address delivered by her, with an injunction on the title page in her own valuable autograph, to "vote for Blaine," because a vote for Cleveland, whether the accusations against him are true or false, will amount to a vote "for the destruction of woman, body and soul, for whom Jesus shed his blood." It is greatly to be feared that Mrs. Bennett lacks the logical faculty which should characterize the statesman and the lawyer. Governor Cleveland certainly should not be made to suffer on false accusations. We are grossly ignorant of politics, and take no pleasure in them, but we do not understand that the Republicans are more favorable to woman suffrage than the Democrats. We cordially concede that Mr. Blaine is a handsomer man than Governor Cleveland. Some years ago we got ourselves into a terrible scrape by writing of a reigning prima donna, that so long as she wore high heels, painted, powdered, pinched her vitals by tight lacing, and squirmed and wriggled in her gait she would not be fit to vote. Now we will venture under our breath to say that we do not think that if women are generally such fools as to be liable to be seduced, as Mrs. Bennett seems to think they would be if Governor Cleveland should be elected, they are not fit to vote. Nor do we see how the elective franchise is going to save them from seduction. With one remark in Mrs. Bennett's screed we heartily concur : "God says he takes no pleasure in fools." If the sensible women want to vote we should say, let them. We have seldom known a sensible woman who did. Most of such women prefer to stay at home and rear men to do the voting. This however Mrs. Bennett seems to think "a crucifixion afresh." The British idea of eloquence differs quite widely from our own, and British eloquence, compared with ours, is heavy. In a very complimentary notice of Mr. David Dudley Field's recently published works, in the London Law Times, speaking of his argument in the Milligan case, the writer says: "We confess that we admire, but do not altogether like, Mr. Field's poetical fervor of expression. Speaking of the weight of the judgment about to be pronounced by the court, he says: 'It will stand when the statue, which with returning peace we have raised above the dome of the Capitol, shall have fallen from its pedestal, its sword broken, nd its shield scattered (quare shattered) in pieces; nay, when the dome itself, which though uplifted into the air, seems immovable as the mountains, shall have crumbled; it will stand as long as that most imperishable thing of all, our mother-tongue, shall be spoken or read among men.' Now the last of these images is pretty and touching, but the first two savor of the stump, and remind us of the writ ings of another American who does not profess dignity, and mocks at sentiment. Bursts of eloquence, such as this, are best unwritten." And elsewhere the writer speaks of Mr. Field as "eloquent beyond the bounds of moderation." It will amuse Mr. Field to learn that he is considered an eloquent' man at all, to say nothing of being immoderately eloquent. We confess that the above quotation is rather livelier reading than most British eloquence; and yet we never heard the British find any fault with the figure of the New Zealander sitting on the broken arch of London bridge and sketching the ruins of St. Paul's, rendered famous by Macaulay, but by no means original with him, but used before What would the him by several English authors. Times say of Daniel Webster's apostrophe to the National flag floating over the same dome, or rather its more humble predecessor? We think Mr. Field's figure of speech fine and appropriate, but we are able to take a little of the poetry out of it. That statue, so far from being raised with "returning peace, " stood there, we believe, before the civil war. At all events its form was decided on by Jeff. Davis, while secretary of State, and it is amusing to note the changes from the artist's original design, as explained in Hicks' memoir of the artist Crawford. 1 We venture to give the following extracts from a letter from a Maine lawyer: "From my standpoint of construction a sermon could be written on that little poem that so charmed Judge Folger. He must have drunk in its sweetness. That'sof' come in' was to him like the voices of the 'shining ones in Bunyan's Pilgrim's Progress, who met Christian at the end of his grand fight, in the land of Beulah, and whispered their sweet invitation to go up with them to the mountains of God. I want to thank you for the many pleasant hours your editorial work has given me. Instead of sending us a dull, cold law-book, merely, the sparkles of editorial humor have brightened its face into a most cheerful and welcome weekly visitant." IN NOTES OF CASES. N Stevenson v. Phoenix Ins. Co., Ky. Ct. App., Sept. 16, 1884, 6 Ky. L. Rep. 196, it was held that where one has taken out a policy of fire insurance containing a provision making it void if the insured should take out other policies, and he subsequently takes out another policy, having a similar provision against his then holding or afterward taking out other insurance, he cannot recover on the first policy on the ground that the second forbidding other insurance was void ab initio by rea son of the existence of the first, and was therefore in reality no violation of the first. These provisions against other insurance are for the benefit of the insurer, and are not void but voidable at the |