plated, of which a nonsuit whether granted by a court or referee is not one. In any case it can be affected after the lapse of the two terms only through the fiction of an entry by special leave of the court, as of a date when the party was yet alive.

But, further, leave to enter such judgment nunc pro tunc, even if properly applied for, would not have been granted. The reason of the rule is, that the party shall not be prejudiced by the delay of the court in giving judgment if it can be avoided. (2 Tidd, 965.) The delay, however, always had reference in some manner to the merits of the controversy, as motions for new trial, or in arrest of judgments, bills of exception or verdicts with leave reserved to move to enter nonsuit.

There, as was said by Cockburn, C. J., in Moor v. Roberts, 3 Com. Bench, N. S. 845, "it is to be treated as though the appellate action had taken place at the trial." "Such a proceeding," he remarks, "is not under the statute, but under the ordinary inherent jurisdiction of the court. The whole is to be taken to have been done at the trial." In the case cited, the question of nonsuit also came up and the court in banco, having granted a rule absolute to enter a nonsuit, that further objection was taken and recognized, and to insure regularity of action, leave given if the defendant desired it to set aside the rule for the nonsuit, and to direct instead a verdict for the defendants. In the present case, the delay did not result from the act of the court in any such sense. The party was not delayed in entering his judgment. He, in fact, did enter it without interference, and there his rights under the statute, even upon a final report, would have ended. The vacating of that judgment, report and reference was upon collateral grounds, quite independent of the merits of the controversy. In every case where such leave has been granted to enter judgment nunc pro tunc, the verdict was, at least, in existence at the time of the parties' death. Here there was no report in existence at the time of the plaintiff's decease. This case is more analogous to that of a verdict set aside by order of special term, for alleged misconduct of the jury and the death of the party intermediate the appeal from that order and the hearing at general term. The court is of opinion, that in such a case the action would have to be continued before the appeal from the order setting aside the verdict could be regularly heard. In every view of the matter, the judgment last entered herein should be set aside with ten dollars costs.

claims were concerned, the United States stands solely in the place of an agent or trustee, and that with regard to insured ships, the underwriters are subrogated to the rights of the owners to the fund. In an article on "The Law of Homicide," there is a very exhaustive examination of the question whether malice may be presumed or must be proved. This was the turning point in the Stokes case before the court of appeals. The writer reaches the conclusion that "the presumption of malice from the fact of killing and a fortiori from the fact of intentional killing, has been firmly established in the common law from the earliest period," and "that it has only been questioned in two or three modern instances." An article on "The Reporters and Text-writers," made up of opinions expressed from the bench, or in treaties, upon the merits of the old reporters and text-writers- the usual digests, book notices, etc., constitute the remainder of the contents. The Law Review is worthy of a most generous support.

The United States Jurist (W. H. & O. H. Morrison, Washington) contains, besides its usual excellent English and American digests, book notices, legal intelligence, etc., an article on "Foreign Intervention," translated from Mr. William Beach Lawrence's "Commentaire Sur le Droit International." We regret to learn that Mr. James Schouler, who has conducted the Jurist from its commencement, has withdrawn from the editorial management with the present number. Mr. Schouler is an able lawyer and writer, and the Jurist can ill afford to spare him.

The Southern Law Review (F. T. Reid & Co., Nashville), is winning a deservedly good reputation by the excellence of its contents, and the ability with which it is conducted. The present number contains the concluding paper of Judge Cooper, on "English and French Law;" "The Liability of Carriers;" "Dower in Qualified Fees;" "Construction; ""Rules Governing in Conservatory Proceedings in Louisiana;" "Alteration of Negotiable Instruments," and the usual digests, etc.

The Bench and Bar (Callaghan & Co., Chicago), has articles on "The Late Chief Justice Chase;" "Parsons on Contracts;" "The Bible as a Law Book," and "Circumstantial Evidence;" reports of several recent opinions, digests, etc. The number is interesting.

THE OCTOBER QUARTERLIES.

The American Law Review (Little, Brown & Co., Boston) has an unusually good table of contents. The opening article on "An Elective Judiciary," which we copy elsewhere, is the best discussion of the subject we have seen, not excepting Mr. Dorman B. Eaton's essay. The second article is an able discussion of "The Distribution of the Geneva Awards," and a very thorough exposure of the fallacy (to call it by no harsher term), of the conclusions of the Congressional Committee, that the money awarded "is the money of the United States, to be disposed of at its pleasure, subject to no trust, and especially to no legal rights in any individual or corporation by whom a legal or equitable claim can be set up or maintained, to any part of the sum awarded as against the United States." The Review shows that the bulk of the money awarded was upon claims of private individuals, that so far as private

CORRESPONDENCE.

DEAR SIR-Mr. Curtis, in his recent letter (8 A. L. J., p. 163), refers to the "chief justice" of the court of appeals. He is "chief judge." A recent law work is dedicated to an ex-chief judge of the the same court, as if the dignity were a permanent one in the same individual. A dedication distinguishing the object of it as chief or ex-chief judge of that court, would convey an erroneous idea to the profession abroad, unless it should particularize him as the member of the court having for the present, or during some previous term or terms, the shortest time to serve, and, therefore, chief judge by operation of law.

345 BROADWAY, N. Y., October 3, 1873. DEAR SIR-In (8 A. L. J., p. 174), an article from the Solicitors' Journal, on another topic than the present, occurs the following: "The difficulty is, however, that all general rules of law aiming at consequences generally beneficial, are constantly producing results

which, in the particular instance, amount to great injustice." This is an objection to the codifying of the law which has often occurred to me, and I hope will be well considered and answered before any change of the common law into statute law as a Code implies, shall become fastened upon us. Common law is the product of the enlightenment of common reason by common necessity. It varies to suit new exigencies, but without departure from the principles which are its foundation. Statute law relates to particular mischiefs which require special preventives and remedies. To codify the common law, is the confusion of these two, and limits courts to the words of the statute, or else illustrates its own uselessness by leaving them to the reason of the law as it was before the Code, which, in the case of the common law, is common reason. B. W. H.

COURT OF APPEALS DECISIONS.

The following decisions were announced on the tenth inst:

Judgments affirmed with costs-Sullivan v. The Mayor, Aldermen and Commonalty of the city of New York; Leverich v. The same; Hammersley v. The same; Douglas v. The same.-Judgment reversed and new trials granted, costs to abide event - Turner v. Treadway; Maguin v. Dinsmore, Pres., etc.-Judg ment reversed and judgment ordered declaring that the beneficiaries named in the codicil are not entitled to any thing from the residuary estate until it shall be ascertained by a sale of the land, that the proceeds do not amount to $30,000, with costs to all the parties to be paid from the estate - Fincke v. Fincke.—Order of general term reversed, and order of special term affirmed with costs- Bennett v. Stevenson.- Appeal dismissed without costs - The People ex rel. Ebenezer M. Davis v. Hill.-Appeals dismissed with costsThe Dry Dock, East Broadway and Battery Railroad Company v. Cunningham; Barry v. The Mutual Life Insurance Company; Brune v. Whitredge.

NOTES.

At the forthcoming meeting of the Association for the Promotion of Social Science at Norwich, England, a question for discussion in the jurisprudence department is this: Is it desirable and practicable to effect an assimilation of English and Foreign Commercial Law? and if so to what extent, and what steps should be taken to effect such assimilation? In connection with this it may be mentioned, that a meeting of foreign jurists has been held at Ghent and another is shortly to be held at Brussels, with the object of framing a code of international law.

THE LORD CHANCELLOR'S SALARY.- The papers laid before the house of commons' select committee of last session on the civil service expenditure, show that within living memory the official income of the chief legal functionary of this kingdom was much higher than it is at present. A communication from Lord Hatherley stated that in Lord Eldon's time, the salary of the lord chancellor, including bankruptcy fees, exceeded £20,000 a year. At a much more recent date it was as high as £14,000. Lord Hatherley says: "The last reduction was made by Lord Truro, and I had the pleasure, as solicitor-general, of introducing the bill which reduced the salary from £14,000 to its present amount of £10,000- namely, £6,000 as lord chancellor and £4,000 as speaker of the house of lords."

The examination of witnesses for the defense in the Tichborne case, says the Daily News, has already occupied twenty-three entire days, during which 129 persons have given their testimony. The average rate, therefore, is little more than five witnesses a day. The total of witnesses for the prosecution was 212, and forty days having been consumed in taking their evidence, it will be found that the average rate of progress comes curiously near to that of the pace at which Dr. Kenealy's witnesses are disposed of. Thus, since the commencement of this trial, on the 23d of April last, there have been examined altogether just 341 witnesses, occupying sixty-four days. The remainder of the 101 days on which the court has sat has been thus consumed: Mr. Hawkins' speech occupied five days; reading the claimant's examinations and affidavits on which the present indictment is based twelve days; speech of Dr. Kenealy, twenty-one days. The prosecution have notice of nearly 110 witnesses yet to come.

LEGAL NEWS.

The faculty of the law school of Kentucky University positively refuse to lecture to a class of only five students.

The fall term of the Union law school of the Chicago and Northwestern universities commenced on the 6th inst.

An ineffectual effort has been made in the Pennsylvania Constitutional Convention to increase the salaries of the judges of that State.

The attorney-general has accepted the resignation of C. R. Mobley, United States attorney for the southern district of Florida.

The late Hon. William M. Meridith, of Philadelphia, after a life of successful practice at the bar, left an estate valued at $100,000.

Hon. Jesse Gay has received the democratic nomination for judge of the supreme court for the fourth judicial district of this State.

Hon. P. Emory Aldrich, of Worcester, has been appointed judge of the superior court of Massachusetts, vice Devens promoted to the supreme court.

Chief Justice Ripley, of Minnesota, who was recently stricken with paralysis, is slowly improving in health, and his attendants entertain hopes of his recovery.

The Washington Chronicle says of Justice Miller, who has just returned from Europe:

He has reason to feel gratified with the complimentary manner in which his name has been mentioned by the bar and the press throughout the country during his absence, for the vacant chief justiceship of the court where he has already acquired fame as a jurist. Although known to be a decided republican, this commendation has come from every section without regard to political parties.

The United States District Court for the Western District of Wisconsin, in the matter of the proposed bridge across the Mississippi river, has rendered an opinion sustaining the views of Attorney-General Williams as to the authority of congress to pass laws upon the subject of bridges over the Mississippi river, and the conferring upon the secretary of war exclusive jurisdiction to approve or disapprove of the location of such bridges, and as to the conclusiveness of his action.

The Albany Law Journal.

ALBANY, OCTOBER 25, 1873.

"FIDUCIARY CHARACTER" UNDER THE BANKRUPT LAW.

One of the most important questions that have arisen under the Bankrupt Act, is as to the meaning of the term "fiduciary character," as used in the thirtythird section. This section provides "that no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act." Does this section include factors and commission merchants? The decisions upon this point, though not numerous, are conflicting.

The corresponding provision in the bankrupt act of 1841, excluded from its benefits "all persons owing debts created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any fiduciary capacity." Under this provision the Supreme Court of the United States decided in Chapman v. Forsyth, 2 How. 202, that " a factor who owes his principal money, received on the sale of his goods, is not a fiduciary debtor within the meaning of the act." This conclusion was reached largely by the doctrine of noscitur a sociis, but it none the less gave a legal significance to the language involved.

The first case under the act of 1867, involving this question, was that of In re Seymour, 1 Bened. 348;❘ B. R. Sup. 7, wherein Judge Blatchford held that the term "fiduciary character" included commission merchants, and that their failure to return the property committed to them for sale, or to remit the proceeds to their principals, was a defalcation, while acting in a "fiduciary character." In commenting upon Chapman v. Forsyth, the learned judge said: "The Supreme Court held that a discharge under the act of 1841 did not release the bankrupt from any such debts (as were mentioned in the clause of the act of 1841, above quoted), and that no debt fell within the description of a debt created by a defalcation while acting in any other fiduciary capacity, unless it was a debt created by a defalcation while acting in a capacity of the same class and character, as the capacity of executor, administrator, guardian and trustee. The court held that the language of the act of 1841 was not broad enough to include every fiduciary capacity, but was limited to fiduciary capacities of a specified standard and character. That was clearly so under that act. But in the act of 1867, the language seems to have been intentionally made so broad as to extend to a debt created by a defalcation of the bankrupt while acting in any fiduciary capacity, and not to be limited to any special fiduciary capacity. Therefore under the act of 1867," says the judge, "No debt created by the defalcation of a bankrupt

while acting in any fiduciary capacity will be discharged."

This opinion was repeated in Re Kimball, 2 B. R. 74, 114; 2 Blatchf. 554, and received the qualified approval of Mr. Justice Nelson. It was followed in Whitaker v. Chapman, 3 Lans. 155, which was an action to recover from the defendants, who were factors, or commission merchants, the proceeds, less commissions, of cheese which plaintiff had consigned to them to be sold. The defendants, severally, set up a discharge in bankruptcy, after the alleged conversion, which they claimed released them from the debt. The court held that "the debt was clearly contracted while the defendants were acting in a fiduciary character, within the meaning of our Code, and according to numerous decisions under it in our own State." Then after citing and approving Re Seymour, the court said: "The language of the act (the bankruptcy act) is general, and there is nothing in its provisions which can be construed to confine such debts to any particular class or kind of trusts." Seymour's case was also followed by the Supreme Court of Missouri, in Lemcke v. Booth, 47 Mo. 385; 4 Am. Rep. 326, the facts of which were, in effect, identical with those in Whitaker v. Chapman. The decision was based entirely upon the reasoning of Judge Blatchford, and the case does not therefore add strength to this view of the question.

Against this current of authority is the decision of the Supreme Court of Massachusetts, in Cronin v. Cotting, 104 Mass. 245; 6 Am. Rep. 232. This was an action of contract to recover the balance of proceeds of accepted bills of exchange, delivered by the plaintiff to defendant for collection, with directions to apply the proceeds, so far as required, to the payment of a debt due from plaintiff to the estate of defendant's husband, of which she was administratrix, and to return balance to plaintiff. The defendant interposed a discharge in bankruptcy. It was argued that this transaction constituted a fiduciary relation between the parties within the contemplation of the bankrupt act. The court said in answer: "This would require an interpretation so broad that almost all pecuniary obligations, especially those implied by law, would be included in the exemption.

"We are inclined to the opinion that the phrase implies a fiduciary relation existing previously to, or independently of, the particular transaction from which the debt arises. The collocation tends to favor this interpretation. If the phrase, "while acting," etc., be referred to that which immediately precedes, it implies something in the nature of defalcation. If it be referred to the first branch of the provision, its association with fraud and embezzlement, carries the implication of a debt growing out of some fraudulent misappropriation, or at least breach of trust. ›

"The debt in this case arose exclusively out of a single transaction between the parties. Its creation involved no element other than that of contract.

The existence of the liability did not spring from any breach of trust. The only default consisted in the non-payment of the balance to the plaintiff, after satisfying the purpose of the pledge. The debt did not result from, but preceded that default.

It is due from the defendant personally, and not as administratrix. Toward the plaintiff she sustained no "fiduciary character," while acting in which this debt was created by her. It is simply a debt by contract, like any other which results from the rightful possession of money that belongs to another. We are of opinion, therefore, that this debt does not come within the meaning of the clause of the bankrupt act above quoted."

The court also argued that the meaning of the term "fiduciary capacity," as used in the act of 1841, having been fixed by the Supreme Court of the United States, in Chapman v. Forsyth, it is to be presumed that congress used the same or substantially the same language in the act of 1867, in view of such meaning, and that the omission in the act of 1867 of the specific trusts named in the act of 1841 (on inferences from which Judge Blatchford's opinion was mainly based), was explainable for the reason, that the term "fiduciary" having been construed to include the specific trusts, their enumeration was no longer necessary.

The recent decision of the United States District Court, for the Western District of Wisconsin - Hopkins and Davis, JJ. takes substantially the same ground as that taken by the Supreme Court of Massachusetts, holding that the decision in Chapman v. Forsyth is controlling under the present act. The same conclusion is reached by Mr. Edwards in his recent able little work on "Factors and Brokers." The question can only be definitively settled by the United States Supreme Court, but the strength of the argument, and the weight of the authoritiesif not the number-seem to be against including factors and commission merchants within the term of the act.

THE HOME LIFE OF THE LATE CHIEF JUSTICE.

There is always more or less curiosity to learn something of the private life of those who have achieved success in this world- to know something of the means and processes which have led to greatness. Mr. Demarest Lloyd, in the November Atlantic, has undertaken, in a very readable article, to gratify this curiosity in regard to the home life of the late Chief Justice Chase. From it we make the following

extracts:

"First among his methods, he himself placed punctuality and system. He was as true to engagements as he was to his promise in every thing, and showed the same alacrity in keeping an appointment with some one who was dependent upon him as with

one of high social dignity. It was his pride to be at his post at the hour of duty, whatever it might be. He was never late on the supreme court bench until one morning last winter, when his watch was the real offender. And in this, as in every thing else, while he demanded nothing from others he would not do himself, he exacted a rigid fulfillment of duty. He had no charity for late rising, tardiness, or shiftlessness. He was always a strict economist of time, and fixed, with a rule that knew little variation, the periods at which his day should begin and end. In his work system was a necessity. His habit of preserving and arranging papers, acquired no doubt in public life, he continued and expanded in private matters as well.' He seldom destroyed any thing, whether letter, pamphlet, book, or circular. This methodical habit has made his collection of political papers one of great value. It is a storehouse of much of the vast uncollated and undigested history of the times in which he lived. Pamphlets, reports, speeches, newspaper cuttings, miscellaneous collections of all kinds indicate his provident turn of mind. His diaries he kept with great minuteness and care, and continued them even when it had become a labor to hold his pen. They cover the whole period of his active life, and, though there are sometimes short gaps in them, they form, in connection with his other papers, a circumstantial personal history, which is equaled by that of few men in our annals. Locked in these treasure-houses is much of the secret and momentous history of war times, which may some day make or mar the fame of many a man, living and dead. One of his wise habits, exhibiting his characteristic caution, was that of requiring every proposition of any kind that was submitted to him to be made in writing. A proposal in relation to his farm; the dimensions of any thing and every thing; the smallest account

must

be carefully stated on paper. This was invariable with him. Good as his memory was, he never relied upon it when he could do otherwise, and would even require his secretary to take short-hand notes of a neighbor's conversation, to retain his information upon farming topics. Among the manifestations of his careful and philosophical study of politics are old quartos in his library, in which are recorded votes and majorities in the different States, an instance of the compilation of year-books, long before such things were the product of every metropolitan press. Of course, in the crush of public business, he used other hands than his own in his necessary work, but he wrote himself with great rapidity and ease, though with a corresponding loss in legibility. His writing, when in health, was a peculiarly elastic, delicate, and almost fanciful hand; after his paralytic attack, when for a length of time his pen was a burden, his hand was shorn of its curves, and became plain and heavy, though still elegant. At this period it was very condensed and minute, and occu