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.] ALABAMA SUPREME COURT ABSTRACT. 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; Eastburn 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.] CRIMINAL LAW. 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.] PRESUMPTION OF GUILT ARISING FROM. As a INTENT-KNOWLEDGE-CHARGE ERRONEOUS.-On an 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 interdict. When the case shows 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.] CORRESPONDENCE. MR. MILLER ON MR. FOWLER'S PAMPHLET. 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 stat ute 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 leg islative 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. The Albany Law Journal. ALBANY, SEPTEMBER 6, 1884. CURRENT TOPICS. E have received from Mr. Simon Sterne, and W perused pleasure 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. At the same meeting Mr. David Dudley Field introduced the following resolution, which was unanimously adopted: "That a special committee of five be appointed by the president, to consider and report at the next annual meeting, whether the present delay and uncertainty in judicial administration can be lessened, and if so, by what means. Thus early has Judge Dillon's address begun to show the promise of fruitage. We are told that the "banquet" (how we detest that word!) was a very amusing occasion. Among the toasts was one to the "evils of codification," to which, naturally, Mr. Field was called to respond. We can imagine that the speaker was very pathetic on this theme. The tears he shed were doubtless as abundant as those of the "Walrus and the Carpenter," when they regretted the necessity VOL. 30- No. 10. In a 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. 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. The 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. 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. of upsetting the testament, and invoked to his aid the old familiar friend of lawyers "mental inca 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 ofpacity." He filed a bill in Chancery, and by condisapproval, 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. sent an issue devisavit 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 CASES. will, and Thesiger was so impressed that he sent for the widow to his lodgings, and strongly urged SOME thirty years ago there dwelt in Stafford her to leave the matter in his hands to settle as best shire an old country gentleman named Sam Swinfen, the possessor of an estate valued at between £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, however, 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 improving 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, mental 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 happily spared the shock, being incapable of understanding the loss he had sustained." Under these circumstances the widow, who, let us state at once, is the heroine of our tale, actually took some steps to test his sanity, but the doctors differing, nothing was done. 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. he could. It appears the judge had privately intimated 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 prevailed upon to take the night to think the matter over, but next morning saw no change in her determination, and she telegraphed to Thesiger "offer refused." We may judge then her astonishment, when on arriving at court on Monday morning, 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 Thesiger. 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 occasion like Maria Theresa, and abandoned by all she quietly returned to the Hall, and awaited events. Speedily possession was demanded and refused. The heir's next step was to take a rule nisi for attachment against her. This was quashed on 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 binding. 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 disThereupon, Captain Swinfen cast about for means tinctly that the mere relationship of counsel and 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. 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 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, L. J. N. S. Exch. 383. This however was a 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 little too much, and the court unanimously dismissed many men of ordinary powers performing ordinary He * 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 opinions and general 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, Tennescalled when Ohio was still a western State, is very difsee and Kentucky. The western man, who was so trust to him at times for fortune and character and life. The law trusts him with a privilege, in respect 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 popular clamor and powerful interest, speaking with a boldness which a sense of duty can alone recommend, 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 remuneration to be by gratuity." And he then proceeds with little difficulty to show, from a long and Englishman! And yet they live largely under the 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 personce 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. THE AMERICAN BAR ASSOCIATION, COURTLANDT PARKER, THE PRESIDENT'S ADDRESS, 1884. 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 ferent in his individualities from all that I have mentioned. 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 citizens. There seems to be something in mere boundary 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 differeut the Scotchman, Irishman, Welshman, thought, and of mental and moral being among our very same laws, and have but one Parliament. Much We in America have no differences so strongly marked as those we find still existing in the two small But there are differ islands forming Great Britain. ences nevertheless between the inhabitants of different sections. Hence in performing the task allotted to me I shall not mention the States alphabetically, nor according to seniority of settlement, but shall note their statutory changes according to the grand geographical divisions existing by common consent. We have eastern, middle, southern and western States. I shall remark upon them in this order. An advancing public sentiment tiring of the too often recurrence of legislative machinery has verymuch lightened the labors of your present president, while the slowness of printers and other causes have nevertheless 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 |