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The Albany Law Journal.

Majesty's High Court of Justice, with the exception of the Lord Chief Justice, Master of the Rolls, Lord

Chief Justice of the Common Pleas and the Lord ALBANY, OCTOBER 11, 1873.

Chief Baron, who are to be specifically appointed to their offices by the same title and rank in respect to

procedure, as has hitherto been done. But the perTHE SUPREME COURT OF ENGLAND.

manent members of the High Court are not to exceed Who can say that the age is not one of progress ? twenty-one, when, by vacancies, the incumbents Or what lawyer, standing in Westminster Hall, as he | shall be reduced to that number. recalls its founder William Rufus, and the parent of And in this, we cannot too much admire the conall the courts which there congregate, the Aula Regis sistency and good faith of the British Parliament in now hesitates to exclaim with Galileo, E pur si muove" | dealing with their judges, compared with the legislaas he reads in the September number of the Law tures of some of our States who have not hesitated Reports, the act of the British parliament “for the to change the name and organization of their courts, constitution of a supreme court” in England, passed in order to get rid of one set of officers and give August 5, 1873. Alas for the glory of the departed, their places to new ones, as rewards for political when, after the 2d November, 1874, we shall have to service or subserviency. speak of the Queen's Bench and Common Pleas, The Lord Chief Justice is to be the President of names long since consecrated to the cause of justice, the High Court, in the absence of the Lord Chancellor. and venerable by all the glorious associations of near | The “Court of Appeal” is to consist of five er a thousand years, as things of the past. And the officio judges, and not exceeding nine ordinary judges. remarkable thing about it is, that a body of English - The five ex officio judges are the Lord Chancellor, men have done this, when their whole law is a matter the Lord Chief Justice, the Master of the Rolls, the of precedent and tradition, and no way has even yet Lord Chief Justice of the Common Pleas and the been discovered for stating or explaining that law by Lord Chief Baron of the Exchequer. The ordinary any process which is not sanctified by the consecrated judges are to be, at first, the existing Lords Justices robe and wig of the jurist who pronounces the oracle. of Appeal in Chancery, the existing salaried judges Lord Selborne must, hereafter, be as immortal in of the Judicial Committee of the Privy Council, and fame, as he who applied the torch to the temple of such three other persons as the Queen may appoint. old, since he has not only destroyed the ancient Besides these, the Queen may, if she thinks fit, from fabric, but has erected a larger and more compact time to time, appoint as additional judges of the Court one in its place.

of Appeal, any person who has been a judge of the The act of which we are speaking contains one Superior Courts of Westminster, or Lord Justice in hundred sections, besides a schedule of rules of pro- | Scotland, or Lord Chancellor or Lord Justice of cedure having fifty-eight clauses, the whole covering Appeal in Ireland, or Chief Justice of the High fifty-four large octavo pages, “ for the constitution of Court in Bengal, Madras or Bombay, and who may a Supreme Court," etc. To do this it unites and con signify his willingness to serve as such judge in the solidates the High Court of Chancery, Queen's Bench, Court of Appeal. Common Pleas, Court of Exchequer, High Court of The members of this court are to be styled "Lord Admiralty, Court of Probate, Court of Divorce, etc., | Justices of Appeal.” But neither of them is any and the London Court of Bankruptcy.

longer to be required to take or have taken the degree This supreme court is to consist of two parts or of Serjeant at Law. The tenure of their offices is divisions, one “Her Majesty's High Court of Justice," to be for life, and their salaries, except for the ex officio generally spoken of as simply the “High Court;" the judges which are to remain as at present, are to be other " Her Majesty's Court of Appeal.”

£5,000 in the Court of Appeal, and £4,000 in the The “ High Court" is to consist, at its first organi High Court. zation, of the Lord Chancellor, the Lord Chief Justice The jurisdiction of the several courts above named, of England, the Master of the Rolls, the Lord Chief together with that of the Court of Common Pleas at Justice of the Common Pleas, the Lord Chief Baron | Lancaster, the Court of Pleas of Durham and the of the Exchequer, the several Vice-Chancellors of the courts created by Commissioners of Assize, of Oyer High Court of Chancery, the Judge of the Court of and Terminer collectively, is vested in this High Probate and of the Court of Divorce, etc., the several Court. On the other hand, the Court of Appeal is Puisne Justices of the Courts of Queen's Bench and to have the jurisdiction of the Lord Chancellor and Common Pleas, the several junior Barons of the the Court of Appeal in Chancery, the Court of Appeal Court of Exchequer, and the Judge of the High | in Chancery of Lancaster, the Court of the Lord Court of Admiralty, except such, if any of these, as Warden of the Stanneries, the Court of Exchequer shall be appointed ordinary judges of the Court of Chamber, and all jurisdiction now exercised by Appeals. As vacancies occur in these offices, new her Majesty in Council or the Judicial Committee of appointments are to be made as judges of Her 'the Privy Council upon appeal upon any judgment or

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order of the High Court of Admiralty, etc. It is referee, whose finding is to be equivalent to the veralso to hear and determine appeals from any judgment, dict of a jury. All solicitors, attorneys and proctors with certain exceptions, of the High Court aforesaid. of the several courts now existing, are to become And the judicial force of appeals to the House of solicitors of the Supreme Court, but nothing in the Lords made up of the Lord Chancellor and the cor act seems to favor the filling up or bridging over that poral presence of a Peer or two upon its otherwise | impassable gull which the law and usage have so long empty benches, is no longer to be repeated.

kept open between barristers and attorneys in the It would require more space than can be afforded, | English courts. to enter further into details of the constitution of this The act, as already suggested, is accompanied by a court, while, for the same reason, only an outline can schedule of rules of procedure. And in those, the be given of the mode in which these powers and changes and reform in the old system are as radical jurisdiction are to be exercised.

| as in the courts themselves. All proceedings are In the first place, the court is to have cognizance instituted by what is called "an action," no matter of all civil causes both in law and equity, and is whether heretofore they were cognizable in law, empowered to exercise jurisdiction as nearly as may chancery or admiralty. The action is to be combe, in the same manner as the same might have been / menced by “a writ of summons which shall be exercised by the respective courts whose jurisdictions indorsed with a statement of the nature of the claim they have, and, among other things, to exercise full made, or of the relief or remedy required in the equity powers by way of right or relief, and to apply action.” The writ states to which division of the and enforce all remedies known to and adopted by court it is intended to have the action assigned. The courts of equity, including the custody and education forms of these writs are to be fixed by rules of court. of infants. And either from never having heard No misjoinder or defect of parties seems to be an what might be done in New York by way of judges objection to the court proceeding till all such errors playing off injunctions upon each other, or from being are corrected, and right parties are before it. One of a frightened by what had already been done there, the class of parties interested may sue in behalf of the act declares that “no cause or proceeding, at any time others. pending in the High Court of Justice or before the The defendant is to file and deliver to the plaintiff Court of Appeal, shall be restrained by prohibition or a printed statement of his defense, set-off or counterinjunction.” And where there is a conflict or vari- claim, if any, and the plaintiff is to file and deliver a ance between the rules of equity and the rules of printed statement of his reply, if any, to such defense, common law with reference to the same matter, the set-off or counter-claim. And all that is said of form rules of equity shall prevail. Practically, for purposes is, that “such statements shall be as brief as the of remedy, the assignment of a debt or chose in nature of the case will admit.” The plaintiff may action, not negotiable in terms, is made as effectual in embrace ever so many causes of action in the same transferring the legal right to the same, as if it had a writ, and separate trials, if necessary, may be had of negotiable form.

those subject-matters of claim. If a question of law The time honored division of the year into terms, arises in a trial, which it is desirable to have settled is done away with, and what is more, with Hilary before evidence has been offered, the judge trying the and Michaelmas terms, even the “Hilary Rules," so cause may raise and reserve it for decision before gravely promulgated by the judges in Westminster proceeding any further in the trial. The parties in Hall in 1833, are, by the sweeping act of 1873, con- | an action may have new trial orders for discovery signed to the receptacle of all things lost and for upon interrogations filed by the one seeking it. gotten. Fortunately, the subject of vacations which, | The mode of trying an issue is before a judge or next to costs and fees, come nearest a lawyer's comfort judges, or before a judge sitting with assessors, or and sense of independence, is not wholly overlooked, before a judge and jury, or before an official or special but is left to be regulated by Her Majesty in Council, referee, with or without assessors. The plaintiff on upon the recommendation of the Council of Judges. defendant is to give notice by which of these modes

The danger of confusion that might, at first thought, he wishes his case to be tried, and this is to be be apprehended from concentrating so many and so determined by the court or judge before whom the various and conflicting matters under the cognizance case is pending, and different issues of fact in the of one court, is obviated by a division of the High same case may be tried by any of these different Court into tive parts or sections corresponding to the modes of trial, if the court or judge see fit so to order. courts of Chancery, Queen's Bench, Common Pleas, The testimony of witnesses in all trials is to be Exchequer, and Divorce and Admiralty, and bearing given orally unless there are rules or a special order of their names. And a corresponding distribution of the court to the contrary, doing away the distinction, the business of the court is to be made by means of in this respect, between proceedings in law and rules regulating the arrangement of the same. | equity. Bills of exception and proceedings in error

The judge who tries a cause under this act has | are abolished, and appeals may be from a part or the great latitude in sending it for a hearing before a 'whole of any judgment.

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These are some of the most prominent points in stances, while the younger members of the family respect to which the act in question works a change were considered rather wild and reckless. The sonin the existing system of administering justice in in-law, Colvin, was a man of weak intellect, someEngland. Its details are too numerous to be com- | times insane, and occasionally accustomed to wander mented upon in a singe article. Those already men- | away for days and weeks without giving an account tioned are sufficiently significant to suggest the of himself. importance of the reforms it proposes. Pleading, for In May, 1812, Colvin suddenly disappeared. The aught that appears, may be regarded as a defunct general impression was that he had gone on one of science, except as a process of intellectual training for his customary tramps. Days and weeks and months the student. Nobody need, hereafter, give color, wore away into years, but he returned not; nor was confess and avoid, or come down upon his adversary there tidings of him. Rumor was not idle. It was with the mystical objurgation of an absque hoc. remembered that the two younger Boorns and Colvin Nothing technical is any longer to stand between had not lived together amicably — that they somesuitors and justice, and that strange coyness and times quarreled and sometimes came to blows. It jealousy which have so long kept equity and common was reported that one of the brothers had stated that law asunder, have come to an end, and they are here- Colvin was dead, and the other that “they had put after to go lovingly to work to disarm wrong and him where potatoes would not freeze." In short, peoinjustice wherever they find it, and to hold up a com- ple at length came to the conclusion that the Boorn mon shield behind which innocence is to be safe, and brothers had murdered Colvin. right can always find security and protection. At Then came the “circumstantial evidence.” Some least such is the promise which this act holds out, and children at play near the “old Boorn place " found a the world will wait with no ordinary interest for musty old hat which was recognized as the hat Colvin time to solve the problem.

had worn when last seen. About this time Amos Boorn, uncle of the young men, and a man of good

character, dreamed a dream wherein Colvin came to A REMARKABLE CASE OF ERRONEOUS CON him and told him he had been murdered, and that if VICTION.

he would, follow he would show him where he was Most students of “Greenleaf on Evidence” will buried. Three times was the dream repeated. The remember a brief note in one of the volumes referring place of burial as described in the dream was an old to the trial and conviction of the Boorn brothers for cellar hole, and which was used at the time of Colvin's the murder of Russell Colvin, and the subsequent disappearance as a place for burying potatoes, but return of the man supposed to have been murdered. which had afterward been filled up. These dreams to The case was so extraordinary and so opposed to all the simple townsmen was "confirmation strong as our notions as to the infallibility of tests of crime | proof of Holy Writ." that very likely many of us have taken Mr. Green- About this time a barn on the Boorn farm was leaf's statement cum grano salis.

burned and it was supposed by many that the body But a recent full report of the case by one of the might have been concealed under it. But the circumcounsel at the trial * renders it impossible longer to stance that formed the apex of this evidential cone entertain a doubt as to the facts. The reporter - the was this: A lad was walking with a dog over the Hon. Mr. Sargeant -- is about the only survivor of Boorn property -- suddenly the dog began to dig bethose who were interested in the affair or connected neath an old stump – he dug out some bones -- they with the trial, and as no complete account of the case were pronounced to be human bones. has been heretofore published, this little pamphlet is | Jesse and Stephen Boorn were straightway arrested tiinely and most acceptable. It contains a general for the murder of Russell Colvin. This was in 1819, sevaccount of the case and a full report of the evidence en years after Colvin's disappearance. The examination and proceedings taken from the minutes of Chief lasted several days and was attended by a large conJustice Chase who presided at the trial, and who, by course of people. Mr. Sargeant says: "The country was the way, was the uncle of the late Chief Justice of scoured for evidence. The old cellar hole was rethe United States.

opened, and a large knife, a pen-knife and a button The following is a brief statement of the facts: In were found. The large knife and button were iden1812 Barney Boorn with his family, consisting of his | tified as having belonged to Colvin. The bones found wife, two sons, Stephen and Jesse, a daughter and in the hollow stump were brought into court, and her husband, Russell Colvin -- lived in the town of four physicians'were called, who, after an examinaManchester. Vermont, near the Battenkill river. The tion, pronounced them to be the bones of a human old people were reputable and in comfortable circum. foot, together with some toe-nails, and perhaps a

thumb-nail. One of the physicians, who lived in * The Trial, Confession and Conviction of Jesse and Arlington, after thinking the matter over, concluded Stephen Boorn for the murder of Russell Colvin, and the return of the man supposed to have been murdered. By there might, after all, be a doubt about it, and on Hon. Leonard Sargeant, ex-Lieut. Governor of Vermont. Manchester: D. K. Simonds, 1873.

I examining a human skeleton at home was convinced that he had been mistaken, and the next day went and they were sentenced to be executed on the 28th into court and retracted his former statement. The of January, 1820. other physicians were not satisfied, and to settle the Strenuous efforts were made to secure a commutamatter sent to a neighboring town and had a leg that tion of sentence, but failed. had been amputated and buried, exhumed and brought The Boorns thereupon protested their innocence, into court, and, on comparing the two specimens, every and urged that efforts be made to discover the missone was convinced that the bones were not human. ing man. An advertisement was inserted in the This dampened the public ardor somewhat, and it is | Rutland Herald, and widely copied by other papers, probable that Jesse would have been discharged, but asking information of said Colvin. The notice was that on Saturday he made a statement that he believed copied in the Evening Post of November 29th, 1819, and Colvin had been murdered, and that his brother came to the attention of a Mr. Chadwick, of New Stephen was the murderer. That Stephen had told Jersey, who recognized the description as that of a him the previous winter that he (Stephen) and Colvin man living with his brother-in-law, at Dover, in his were hoeing in what was called the “Glazier lot," State. He communicated the fact to the parties in that they had a quarrel and Colvin attempted to run interest, and the man was identified as the lost Colvin. away; that he struck him on the back part of the He was brought back to Vermont, and was fully head with a club and fractured his skull; that he recognized and identified by scores of those who had (Jesse) did not know what had become of the body, known him. He was partly insane, and had no exbut mentioned several places where it might be cuse for his absence, but freely admitted that the found. Whether it was to save himself, or some other Boorn brothers had neither hurt him nor frightened consideration, that induced Jesse to make this state- | him away. Of course, the Boorn's were released, ment, was never known, but it added immensely to although the court was at a loss to know what course the fuel which was already in a blaze of excitement. | to pursue, to effect the discharge. The next day, Sunday, nearly all the people for miles There were many who pretended to believe that around turned out to search for the remains of Colvin. Colvin was really murdered, and that the man supStumps were overturned, cellar-holes examined and posed to be him was an impostor, but no one who the side of the mountain back of the premises care- examines the proofs of the identity of Colvin can fully searched, but all to no purpose; nothing resemb- believe it for a moment. ling human remains was found.”

The confession of Jesse was no doubt made with In September following, an indictment was found the purpose of screening himself and of casting the against both Stephen and Jesse, the principal witness guilt upon his brother and that of Stephen was debeing a man who was confined in the jail with them, signed to save them both from the punishment which and who testified that Jesse made a confession to they were assured would certainly follow unless the him. It was said to have been made in the night confession was made. “Out of thine own mouth when Jesse awoke appearing much disturbed. | will I judge thee,” is popularly considered the very

While they were in jail, they were visited by many highest species of judgment, but this case strongly persons, and were told by men of character and in- illustrates its fallacy. fluence, and by officers of the law, that the case was clearly against them, that to confess was the best thing they could do, and that if they confessed, an attempt

CURRENT TOPICS. would be made to have their sentence commuted. It is stated by a Washington correspondent and Thereupon, Stephen made a written confession, that very likely correctly, that the President will not make he killed Colvin, but claimed that it was done in a an appointment of chief justice until congress meets. quarrel, and that Colvin struckohim first. The con- In the first place, he does not consider there is any fession coincided substantially with what circumstan- | public need of such an appointment, as the business tial evidence there was.

of the court will go forward in just as satisfactory The trial took place in November, before Chief | manner for the short time it will be in session before Justice Chase and Judges Doolittle and Brayton. convened as though the bench was full. Associate State's attorney Sheldon appearing for the prosecu- Justice Clifford of Maine will preside as the senior tion, and Richard Skinner, Wellman and Leonard justice of the court. No cases of general public Sargeant, for the respondents. The evidence against interest are to be immediately decided. If a chief the prisoners was entirely circumstantial, and mostly justice were to be appointed and take his seat before unimportant, with the exception of the confessions, confirmation, he would incur the risk in some imporwhich were objected to by the prisoner's counsel on tant case of disappointing the members of the senate the ground that they were extorted by undue influ- belonging to the party in majority, or if his decision ence, but they were admitted. The case was ably were pleasing to that majority, it might subject him argued by the various counsel, and submitted to the to charges from the other political party of partisan jury. The jury, after an absence of one hour, re-action and subserviency that would be unpleasant. turned a verdict of murder against both prisoners, 'A chief justice, by sitting before confirmation, would

have his action submitted to the senate for reviewal, that an elective judiciary is wrong in principle. It is, practically, for that body, if not agreeing with his of course, important that good men be placed on the decisions, could in effect exercise the power of re- bench, but it is equally important that judges be lifted viewal by refusing to confirm, while in such compli- above mere politics — above any temptation to bend cations as would probably arise in the present instance to popular passions and prejudices - above any susthere seems to be no need of fixing a precedent from picions of party subserviency. The judge should not which future harm may result. The fate of John only be upright and impartial, but he should be uniRutledge is a sufficient justification for this delay. versally believed to be so. This is quite impossible

at times, under the existing system.

The Boston Daily Advertiser has been investigating Mr. Conkling's antecedents, with a view of testing | The lawyers of Philadelphia have set about corhis capacity for the chief justiceship. It finds that he recting certain professional evils in downright good was born in 1829, and could not have been admitted earnest and in a very judicious manner. A special to the bar before his majority, in 1850. He was then committee, appointed for the purpose of devising elected district attorney of Oneida county. In 1858, means to restrain the unprofessional and disreputable he was mayor of Utica, and in 1859, when only thirty practices of certain members of the profession, has years of age, he was elected member of congress, reported in favor of having the entire Bar of Philawhere he remained three terms. In 1867, he was delphia incorporated, in which corporation the “charelected to the Senate, where he has since remained.acteristics of unity, authority and dignity as well The Advertiser is also informed that Mr. Conkling's of numbers as of influence, could not fail, by the practice, always very small, has been almost entirely adoption of wise and thorough supervision and corfined to the trial of cases before a jury. One regulation, to assist in restoring our profession to its certainly is led to wonder, in what period of his life once universally honored name and usefulness.” Mr. Conkling could have made himself such a law- "The report was adopted and a general meeting of yer as the position of chief justice of the United the Bar has been called, with a view to forming an States requires. The law has always been considered incorporated organization. The profession of the a jealous mistress, and it is generally believed that a city will be much more likely to be restored to its good lawyer is made so, only by years of hard labor traditional glory by this means than by means of a in his profession, and not in politics. There is some- closed corporation. thing, however, in the argument of the Troy Daily Times — an advocate of Mr. Conkling's appointmentthat he will undoubtedly make a good judge after five

NOTES OF CASES. or ten years' experience-that is, we can plant the

After an abstract of recent bankruptcy decisions politician on the bench, and he may, eventually,

was in type, we received the opinion of Judge Dillon grow into a jurist.

of the United States circuit court, reversing the

decision of Judge Treat In re Clemens. Judge Dillon The Democratic Convention for the Third Judicial

decided that an accommodation indorser cannot be District on Wednesday nominated the Hon. Theodore

forced into bankruptcy for a failure to pay the paper R. Westbrook, of Ulster county, for Justice of the

indorsed under the thirty-ninth section of the bankSupreme Court. Mr. Westbrook is an able lawyer

rupt act; that such paper is not his commercial and an honest man. The Republicans of the Seventh

paper." In harmony with this decision are Re NicoDistrict have nominated the Hon. David Ramsey for

demus, 3 Bankr. Reg. 55; Innes v. Carpenter, 4 id. the Supreme bench. Judge Ramsey was appointed

139; Re McDermott Ball Co., 3 id. 33, and Re Lowenby the governor to succeed the late Judge Johnson.

stein, 2 id. 99. On the other side is Re Chandler, 4 Bankr. Reg. 66. All of these decisions are of the

district court. The proposed amendments to the constitution providing for an appointive judiciary, were not directly passed upon in either of the State conventions. The | The United States supreme court, in Phonix Insubject appears to be one in which politicians do not | surance Co. v. llamilton, decided at the last term, feel very safe. The republican judiciary convention held that a nominal partner had an insurable interest of the seventh district have, however, declared against in the effects of the partnership. The firm in that the amendment, on the ground “that the people of case were commission merchants, and the insurance the State of New York have made better selections effected on the goods consigned. The court held that than we could expect under a system of appoint- the interest of the nominal partner in the liabilities of ments." While we admit that the selections by the the firm were such as, in the absence of fraud, to enpeople have, on the whole, been quite as good as we title him to join with the other members of the firm could expect under the other system, we still believe I in effecting insurance on the property of the concern.

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