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Snydacker v. Broose, 51 Ill. 357; Abbott v. Kimball, 19 Vt. 551: Welsh v. Cochran, 63 N. Y. 181; Hyde v. Cooper, 26 Vt. 552. In the case last cited, Redfield, C. J., in rendering the opinion of the court, said: "When the party does not direct or control the course of the officer, but requires him to proceed at the peril, and the officer makes a mistake of law in judging of his official duty, whereby he becomes a trespasser even by relation, the party is not affected by it, even when he receives money, which is the result of such irregularity, although he was aware of the course pursued by the officer. He is not liable, unless he consents to the officer's course, or subsequently adopts it." There is an entire absence of competent testimony in this case to show that the plaintiff in error authorized, or had knowledge of, any improper conduct of the officer, if there was any, and, therefore, nothing upon which to base a verdict against him for damages for any trespass then committed. Before he can be so held, it must appear (1) that there was such an abuse of the process, by the constable, as to make him a trespasser, and to forfeit all protection which his writ otherwise would give; and (2) that plaintiff in error either directed or counseled such wrongful conduct, or thereafter consented thereto by accepting the benefits result ing therefrom, with full knowledge of the facts. The instructions which were given by the court at the special instances of the defendant in error, ignored these principles, which lie at the foundation of the liability of the plaintiff in error, and are erroneous.

We publish in this issue of the LAW JOURNAL the reply of Jacob Spahn, Esq., of Rochester, N. Y., to the general letter sent by the Commissioners on Statutory Revision to different members of the bar in relation to the amendment to the Code of Civil Procedure. There may be also found a special letter from Mr. Spahn urging the reasons for the change which he proposes and which in fact is to allow either party to an action to take a general exception to the charge of the trial judge. We recognize the importance and weight of the suggestions which Mr. Spahn makes and we believe that such an amendment would work to the futher

ance of justice and would prevent many of the. difficulties and dangers of the charge of the trial judge which now exist. But we protest that an exception should be taken by either party after the trial in a reasonable time and to specific parts of the charge of the judge, not to the charge in general, for we cannot and do not consider that any practice which will materially increase the work of the appellate courts is desirable, and it is most important that there should be less matter come up before the appellate court and that appeals should be restricted. It is very easy for the practitioner to form a short bill of exceptions, after the trial, to the charge of the judge, though we consider that either party should be allowed to except at the time of the trial before the case goes to the jury as well as to make requests to charge which are most proper for the just trial of any cause. It is, therefore, with great pleasure that we recommend the suggestions of Mr. Spahn in so far as they allow exceptions to be taken to specific parts of the judge's charge during the time allowed for an appeal.

During the last few weeks two judges have recommended changes which, on account of the importance of the reforms and the distinguished character and great learning of the judges, entitle them to profound consideration and respect from the bar. Last week we had occasion to comment on the case of the People v. Shea, which was recently decided by the Court of Appeals. Judge Peckham, who has had wide experience as an active practitioner, trial judge, and as a member of the court of last resort, calls the attention of the public as well as of the bar to the unfortunate, unnecessary, unreasonable and improper rules of practice which allow a mass of worthless facts and immaterial testimony to come before the appellate court of last resort. The great care which the judges of the Court of Appeals take with their opinions and with their work, and the literary quality of the opinions, not to speak of their great legal worth, are too well-known to here comment upon. Does it not seem ridiculous and like loading a faithful public servant down to send before him for review ten thousand printed folios embracing two thousand printed pages of record, exclu

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sive of some three hundred pages of questions put to jurymen, which came before the court in the case of the People v. Shea? There has been so much said within the last year and a half in regard to limiting appeals to the court of last resort that we really believed that some practical benefit would accrue to the But, seemingly, this relief to the court has disappeared in the vociferous flagellations of the discordant notes of code reformers. Something should be done; but it is most humiliating to the bar that the suggestion should have to come from the judges of the court that must be relieved. It is most proper that every benefit should be accorded to a man who is accused of murder, but from a practical standpoint we think it is almost prejudicial to the accused to go before the court of last resort, with such an unwiedly mass of absolute nothingness. A few well chosen points, such as exceptions to the charge of the trial judge, the admission of testimony which can be easily picked out and attacked, and which are clearly fixed in the mind of the counsel for defense, would practically give the court a better opportunity to judge of the merits of the case, while it would be absolutely impossible for the minds of any court to comprehend such a mass of testimony as we have referred to. But these suggestions of Judge Peckham do not stand alone as the only reminder to the members of our profession that our procedure is not in accord with business principles. It has been a favorite theory of this journal that too many appeals involve unnecessary delay, which is most prejudicial to the rights of suitors. Reforms cannot proceed along business lines without comprehending the broad principles of the law. Judge Brewer, of the United States Supreme Court, in his address to the American Bar Association, most clearly discussed this subject,

and said:

tion. Limit the right of review. Terminate all review in one appellate court. Reverse the rule of decision in appellate courts, and instead of assuming that injury was done, if error is shown, require the party complaining of a judgment or decree, to show affirmatively not merely that some error was committed in the trial court, but also that if that error had not been committed the result must necessarily have been different. It may be said that this would make reversals very difficult to obtain. They should be difficult. The end of litigation should be almost always in the trial court. Business men understand that it is best that the decisions of their committees of arbitration should be final and without any review. While some of our profession seem to think that justice is more likely to be secured, if by repeated reviews in successive courts, even to the highest in the nation, the fees of counsel can be made to equal, if not exceed, the amount in controversy between the clients. In criminal cases there should be no appeal. I say it with relutance, but the truth is that you can trust a jury to do justice to the accused with more safety than you can an appellate court to secure protection to the public by the speedy punishment of a criminal. To guard against any possible wrong to an accused, a board of review and pardons might be created, with power to set aside a conviction or reduce the punishment, if on the full record it appears not that a technical error has been committed, but that the defendant is not guilty, or has been excessively punished.

"The truth of it is, brethren, that in our desire to perfect a system of administration, one which shall finally extract from confused masses of facts and fiction the absolute and ultimate verities, we forget that tardy justice is often gross injustice. We are putting too heavy burdens on our clients, as well as exhausting the patience of the public. Better an occasional blunder on the part of a jury or a justice of the peace, than the habit of protracted litigation.

"The administration of justice would soon be considered a mockery if first impressions controlled every case. But greater expedition can be obtained without detracting from fullest examination and consideration. Shorten the "The idea of home rule and local self-governtime of process. Curtail the right of continu- ment is growing in favor. Thoughtful men ances. When once a case has been commenced, more and more see that the wise thing is to deny to every other court the right to interfere cast upon each community full responsibility for or take jurisdiction of any matter that can be the management of its local affairs, and that brought by either party into the pending litiga- | the great danger to free government is in the

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centralization of power.

Is it not in line with this thought that as far as possible the final settlement of all controversies which are in themselves local shall be by the immediate friends and neighbors of the litigants? Was not that the underlying thought of the jury as first established? And while we boast that the jury system is the great bulwark of our liberties, are we not in danger of undermining its strength and impairing its influence by the freedom of appeal? Is not the implication therein that the jury and the trial judge cannot be trusted, and is not the sense of responsibility taken away from both when they understand that no matter what they may decide, some superior and supposed wiser tribunal is going to review their decisions and correct whatever of mistakes they may make?"

as old as Plato.

The nation is an individual and when it has decided puts itself in position to enforce that decision. Law is the "I will" of the American people. Law is to transmute half formed purpose into resolute purpose; it is to convert aspiration into life. The nation has its body which must be fed; its mind; its emotions; its will which must be carried out.

The different forces that administer to the corporate individual were eloquently cited. The man whose body is fed and whose intellect is brightened is unavailing unless he has a definite purpose and pursues that purpose with definite resolution. It is the same with the nation if it means to accomplish anything. The nation is what its executed laws are no more, no higher, no better.

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Not long ago the Populists in Kansas decided not to have any more lawyers in the LegislaWe publish in this issue of the LAW JOURNAL ture. More than fifty per cent. of the legislaan article written by Hon. Horatio Seymour, tors in Congress have been lawyers. It ought Jr., formerly State engineer and surveyor, one so to be. They are fitted to shape the national of the most earnest advocates of the improve- will, to give it definite resolve. We need conment of the canal provided for in the bill to be tinuous sessions of the law. The legislature submitted in the form of a referendum at the represents the superficial will of the people, the next election. Mr. Seymour was formerly State whims of partisan feeling or prejudice. The engineer and surveyor, and although this plan courts are to represent the deeper purpose of was first originally suggested by the late Samuel the nation. They understand and interpret J. Tilden, it has since been taken up and the trend of national life. By way of illustrawarmly advocated by Mr. Seymour, who at tion, the great waterways of the nation were present resides at Marquette, Mich. It can given to the nation, the great railways were readily be seen that he is anxious still for the subject to federal jurisdiction and protection, success of the canal improvement project. the great lakes are also under federal jurisdicAlthough the subject is not strictly legal, yet it tion. No act of the Legislature has produced involves important interests which are akin to the effect of Lincoln's signing the document our profession, and we must for a moment turn that set slaves free. The hand of the people aside from the strict consideration of legal held the pen. principles to the consideration of vital interests of the State and country.

After the adjournment of the American Bar Association at Detroit, the Rev. Lyman Abbott, successor to the Rev. Henry Ward Beecher as pastor of Plymouth Church, delivered before the members of the Association a most interesting and cultured address. In giving his definition of law, he said:

Law is not a command addressed from a superior to an inferior. It is the corporate will of the nation addressed to the individual. A comparison of the nation to the individual is

The lawyer is not merely one to settle disputes or to prevent them. Beyond is the function he performs in the American commonwealth. He converts creed into deed. We are measured by what we do far more than by what we think. Deed is the measure of the creed. The threads out of which the pattern is to be woven are living threads. The lawyer works them into the national fabric. Blackstone is right; there is an analogy between laws of nature and laws of jurisprudence. Laws of right and wrong exist; they are. Webster said it was useless to re-enact the laws of God. The temporary and the human laws will not stand

opposed to divine principle. Deep in the heart are written the principles of truth, justice, honor. It is not true we want dishonest money; we want honest money; and the question is, What is honest money? The education of the lawyer can not be too broad or too deep. The great principles of our national jurisprudence run back to the time of the great Mosaic period. The lawyer must discern the principles of social life. He must trace the trend of history to see what the future holds. The religions of the world are two classes. Pagan religions picture God as an angry God. The Hebrews showed He was a just God. Then came the belief that He was a merciful God. Our prisons are reformatory. It is ours to present the highest ideals, said the speaker, referring to his own calling. The function of the minister is to hold up the highest pictures. It is the duty of the lawyer to shape the aspiration into a living, determined and powerful resolution.

In the English letter to the Green Bag appears a most comprehensive distinction between solicitors and barristers, a subject which is rather hazy and uncertain to many Americans. It appears that the distinction is gradually disappearing from various causes, and especially for the reason that English practice is coming more and more to allow the solicitors to practice in some of the inferior courts, while barristers in many instances have done away with the services of solicitors in the arrangement of the case and the preparation of evidence in the cause. The letter is well worth printing, and is as follows:

The line which divides the barrister from the solicitor in the English practice is so shadowy in some respects, although so distinct in others, that it is hardly to be wondered at that confusion exists on the subject in America. In fact there are a good many professional men in England who would be puzzled to know where the function of the solicitor stops and the practice of the barrister begins. An American who was recently called to the bar desired to retain a copy of a letter on private and personal business, which, therefore, he had taken pains to write in copying ink. He handed it, with a letter-press copying book, to

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the clerk of his chambers. The latter under- . stood that a copy was required, but he failed to see what the copying book had to do with it. At last, when it dawned upon him, he said, with much disdain: “I am sorry, sir, but there is no copying press in the temple. Solicitors take letter-press copies of their letters, but barristers have their opinions written out in fair hand." In other words, the clerk plainly intimated that barristers had no connection with business, that was an affair of solicitors only. He was, in the main, correct. Solicitors do what in America is known as chamber work." They see the client, and act for him in every possible way, performing services in this respect which an American lawyer would never dream of consenting to do, and charging therefore feee of "six-and-eight pence" and "thirteen-and-four pence," and other small sums which would be too trivial to figure on the books of your lawyers, as well as larger and more imposing amounts. And now, of recent years, they are encroaching upon the preserves of the barrister to an extent which is most alarming to the latter. They may appear as advocates in the county courts and before referees, masters and judges in chambers. In the county courts they don a gown and wear bands at the neck, and, but for the absence of the wig, would pass in appearance for the barristers. In almost every respect, except in high court work, they are taking the places of those who are popularly spoken of as belonging to the "upper branch" of the profession. But the barrister has exclusively the right of audience in the higher courts.

In addition to this he is called upon by the solicitors to "settle" the pleadings, that is to say, to draft them; and to pass upon all the formalities in a case which is the subject-matter of litigation up to the point where issue is joined. He is also "instructed to give an opinion upon evidence and such technical questions of law as may arise. This he is supposed to do only upon a "brief" submitted to him by a solicitor. But, fortunately for him, and as a set-off to the encroachments upon his functions by the solicitor, he is now beginning to see the lay client directly, and not solely, as heretofore, through the intervention of the solicitor. When Sir Richard Webster

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documents. It is feared that if an official trustee is appointed he will not allow these charges, and in consequence there will be so much the less business to do. The argument in favor of the official trustee is based upon the fact that he will be an officer of the court and that he will be obliged to give a bond and will be compelled to report at stated intervals to the court the result of his transactions. It is urged that the irresponsibility of trustees under the present system encourages malversations and misappropriations of money. The other day five solicitors were struck off the rolls for wrong-doing. Lord Halsbury, now again the

was attorney-general sometime ago, and therefore the leader of the bar and the custodian of its prerogatives, he decided that a barrister might advise a layman in all matters which were not in litigation or likely to result immediately in litigation. It cannot be said in truth that in consequence of this clients are tumbling over each other in their mad eagerness to get access to the sacred precincts of a barrister's chambers; but it is true that more and more, each year, consultations are being held with those who seek legal advice, and opinions are being written without the intermediary of solicitors' briefs. Just now both branches of the profession | Lord Chancellor, says that no less than seventyare agitated over matters which affect them most closely. The lord chancellor has brought in a bill to create the office of legal trustee. At present there is no such office. Trustees act independently of all control, and are only answerable, in case of breach of trusts, to their cestuis que trust, who must apply to the Chancery Courts for relief. Most of the trustees are solicitors, and all of them serve without compensation.

seven solicitors were disqualified during his last administration as Lord Chancellor, and that, in his opinion, the number of breaches by trustees which never come to light is enormous.

On the other hand it is claimed that, as there are more than 15,000 solicitors on the rolls, the proportion of those who are dishonest to the entire number is infinitesimally small. Where the matter would have ended cannot be safely predicted, but it will be hung off for a while, as The idea of fees or commissions is abhorrent the recent change in government will suspend to the English courts, and they are never al- legislation on the subject for some time to come. lowed. It is sometimes the case that when The matter which has interested the other branch solicitors are appointed the instrument creating of the profession, the bar, concerns its domestic the trust provides that they shall be allowed to or internal management. A large majority of the charge for such work as they may professionally barristers, particularly the younger members, perform, but otherwise even such services re- are desirous of forming an organization for the ceive no compensation. Notwithstanding this purpose of directing, controlling and governing rule the solicitors make money out of trusts and their own affairs; and to this end a general trustees. A trustee is not simply the holder of council of the bar was formed. But it cannot a legal title or the administrator of a fund. get on without funds, and the barristers who He is a family friend and confidant, a repre- before being called are obliged to pay large sentative of a deceased father, or a grantor of sums to the already wealthy bodies which are a marriage settlement. He sympathises with known as the Inns of Court, naturally object to the beneficiary of the trust-but he takes no put their hands in their pockets to provide these step without consulting the solictor, and the funds. There are four Inns of Court - the solictor permits no consultation without enter- Middle Temple, the Inner Temple, Lincoln'sing up a charge for it. An aggrieved party inn and Gray's-inn. Conjointly they have a stated in one of the newspapers a few days ago revenue approximating $500,000 a year. Their that the appointment of an additional trustee of affairs are administered by a board of governhis estate, although there was no opposition, and ors or managers or trustees, called "Benchers." the proceedings were of the friendliest charac- They make no report of their income or their ter, had cost a little over £80. In other expenditures. Of course, they are men of inwords, nearly $400 had been expended in tegrity and high character, and no one quesconsultations," "conferences," "visits," "in- tions the honesty of the administration of the structions," and the "fair copying" of formal | funds they handle. There is simply the feel

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