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charging the jury in as clear and compact, and yet full and explicit, instructions as were ever given by any court. He never allowed any question of expediency or personal consideration to influence his judgment. The most appropriate inscription for his tombstone would be the words that most fitly characterize him in his last great office, "An upright judge."

In asking the court to turn aside for a moment from the pressing demands of the living, while we pay the grateful tribute of friendship to the dead; in recalling the genial friend, the eloquent advocate, the learned judge, we dwell only on the brighter side. It were not becoming to speak of the faults or failings of the dead-" de mortuis nihil nisi bonum." In the beautiful cemetery where he sleeps his last sleep, the wayward wind may fling dead leaves upon his grave, or the unsightly weed may force its way through the turf that covers it, but loving hearts will bring, and kind hands lay upon it, the chaplet of flowers, the wreath of immortelles.

Our friend was taken in the bright meridian of his days, but the works he has left behind him will be his monument, and will attest that he had not altogether lived in vain.

"It matters not how long we live, but how?

Life's more than breath and the quick round of blood,

It's a great spirit and a busy heart.

We live in deeds, not years; in thought, not breath;

In feelings, not in figures on a dial;

We should count time by heart-throbs. He most lives

Who thinks most, feels the noblest, acts the best."

In behalf and at the request of the bar, I ask "that these resolutions be spread upon the records of this court."

Hon. B. W. POOR then addressed the court as follows:

MAY IT PLEASE THE COURT-I do not propose to add any words of mine to what has been said so justly of our deceased friend. I only rise to say, that our whole bar hold Judge Barker in affectionate remembrance, and with entire unanimity approve the eulogium so fittingly pronounced by my brother Graham; and that they concur in the request, that the resolutions presented be entered on record.

Chief Justice BECK, in behalf of the members of the supreme bench, responded as follows:

GENTLEMEN OF THE BAR-The request, so proper both in words and manner, just presented by your representative, Mr. Graham, the court most readily grants, and directs that the resolutions and proceedings of the bar meeting be spread upon the records.

It is fitting that the testimony of cotemporary members of the profession, to the worth, learning and ability of those who have administered the law in the courts of the State, should be perpetuated here.

Upon the virtues, wisdom and learning of the judiciary must the people depend for the right administration of the law, and the correct dispensation of public justice. Those who possess these qualities and have faithfully exercised them in the public service are entitled to honor while living, and grateful remembrance when dead. You bring a suitable tribute to the memory of one who possessed, in an eminent degree, these high qualities. Judge Barker was among the strong men of the profession, and was distinguished both at the bar and upon the bench for great learning. Nature rarely endows men with qualities of mind of so high order as our gifted professional brother possessed. He was peculiarly fitted for the profession of the law. Clearness of perception and vigorous common sense, together with a happy faculty of expressing his thoughts readily in choice and forcible language, united to make an able, successful practitioner. Just and accurate discrimination in the application of legal principles, with his other qualities, gave him the high position as a judge, which he justly held in the estimation of the profession. Honesty of purpose, and the faithful application of the rules of the law to the cases in his court, won for him the name of a good as well as a learned and able judge.

We cheerfully unite with you in the tribute of respect to his memory, and we mingle our tears with yours over the grave of the departed.

The sorrowful occasion imparts to all of us, in impressive tones, the solemn admonition that we, too, are mortal, and that our green graves and winding sheets are fully within our view. Let us prepare for that inevitable end, and in the faithful discharge of our duties upon the bench and at the bar, merit, as did our departed professional brother, the approval of our associates, and the kindly remembrances of those we shall leave behind.

It is ordered that the resolutions and proceedings of the bar meetings, presented to the court, be spread in full upon the records.

INDEX.

ACCORD AND SATISFACTION.

UNEXECUTED. An unexecuted agreement for accord and satisfaction
is no defense. Woodward v. Willard, 542.

ACKNOWLEDGMENT.

EFFECT OF CERTIFICATE: EVIDENCE. While the certificate of acknowl-
edgment to a conveyance establishes a prima facie case that the
signature of the person purporting to have executed the conveyance
is genuine, this presumption will not prevail against positive evi-
dence to the contrary. Borland v. Walrath et al., 130.

ACCESSORY.

See CRIMINAL LAW, 16.

ADMINISTRATOR.

1. PROPERTY EXEMPT TO WIDOW: ESTOPPEL. Property which under
the statute is exempt to the widow, as the head of the family, is not
to be deemed assets in the hands of the administrator, nor to be
administered upon as such. Ellsworth v. Ellsworth, Adm'r, 164.

2. Consent on her part to such administration, under a misapprehen-
sion of her rights, will not estop her from afterward claiming the
property or its proceeds. Id.

3. So, too, in order to entitle a party to claim the benefit of an estop-
pel of this character, it must be shown that he acted in good faith,
relying upon the estoppel and in the belief of its truth. Id.

4. FILING OF CLAIMS: STATUTE OF LIMITATIONS. Where the plaintiff,
being a non-resident of the State, sent to an attorney for collection
a promissory note within the time allowed by law for filing claims
of this character against an estate, and the attorney, upon inquiry,
learning of the death of one of the makers, wrote to the adminis-
trator of his estate, who informed him by letter in reply, that his
decedent was only security, that if the principal did not pay he
would, and requesting that no costs be made; and, further, that the
principal was then absent from home, that he would see him on his
return and communicate to plaintiff's attorney the result of the
interview, and requested that no suit be brought on the note until
he should thus hear from him; and the attorney, relying upon these
statements and requests, delayed filing the claim until after the
expiration of the statutory period of eighteen months, it was held,
that the circumstances entitled plaintiff to equitable relief against
the bar of the statute, within the meaning of section 2405 of the
Revision, and that the claim was, therefore, not barred. Brayley v.
Ross, Adm'r, et al., 505.

5. HEIRS: RIGHT TO ASSETS. The mere fact that no administrator of
an estate has been appointed after considerable lapse of time, does
not confer upon the heirs of the intestate the property in the per-
sonal effects of the deceased, nor enable them to maintain suit in
their own name, on a promissory note forming a part thereof.
Haynes et al. v. Harris, 516.

6. Upon the appointment of an administrator, his title in such property
relates back to the death of the intestate. Id.

7. But if it were shown that there were no debts against the estate,
and that the period fixed for granting letters of administration had
expired, it seems that the right of the heirs to the proceeds of the
note, would be protected and enforced. Id.

AGENT.

See PRINCIPAL AND AGENT.

AMENDMENT.

1. DISCRETION. The action of the trial court in allowing an amenu-
ment to the defendant's answer, which does not substantially change
the defense, after the evidence has closed, and during the closing
argument of plaintiff's counsel, will not be disturbed. Tegler & Co.
v. Shipman, 194.

2. VERIFICATION. The court below may, under section 2981 of the
Revision, permit an amendment without verification to previous
pleadings which have been verified. Id.

See ATTACHMENT, 1, 3.

ARBITRATION AND AWARD

AFFIDAVIT OF ARBITRATORS. If arbitrators are, in fact, sworn at the
time of entering upon their duties, the fact that the oath was not
reduced to writing, and signed by them until after the hearing or
trial, will not vitiate the award, especially if the party complaining
consented to such course. Ogden v. Forney, 205.·

ATTORNEY.

See CONTRACT, 18.

ATTACHMENT.

1. AMENDMENT. An amendment, curing a defect as to the form of the
affidavit for a writ of attachment, may be properly allowed. Shaf
fer v. Sundwall et al., 579.

2. STATEMENT OF INDEBTEDNESS. If, in an action commenced by
attachment, the amount claimed to be due is stated in the body of
the petition, it need not again be stated in that portion of the peti-
tion which asks for the writ. Id.

3. AMENDMENT. A writ of attachment issued from the circuit court,
having the seal of the district court impressed thereon, is invalid.
It is the same as if the writ had no seal, and the defect cannot be
cured by amendment. Id.

BAIL BOND.

See PARTIES.

PLEADING, 9.

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