yer, and she and he are "going for" the estate of the deceased defendant, "Sharon's lovely rose " having been plucked by the icy hand of death. The

are opposed to what thinking laymen must regard as a most urgent and needy reform, and they draw from this the inference that the real reason why so many lawyers oppose such a reform is, that the law-suit was brought to have the alleged marriage deyers are interested in keeping the law in such a state of intricacy, confusion, perplexity and mystery, that whenever a business man wants to know what the law is on any point he must go to a lawyer with a large fee. In our judgment this opinion of laymen is in part justified by the facts. In other words, while we believe and fully concede that a good deal of the opposition to codification springs from learned and honest visionaries who believe that it would have the effect of checking what they are pleased to term the natural growth of the law, another portion of it is real dishonesty, having a foundation in no higher motive than the desire of lawyers to keep the law in a state of confusion and mystery, and thereby increase legal business and enhance legal fees." Now, Messrs. Carter, Dwight and J. Bleecker Miller, to the rescue! Here's another heretic to be burned! And really he seems a more offensive partisan" than ourselves. And as Rip Van Winkle says in the play, "now he'll

cotch it."

not so

It has been suspected that Shakespeare had studied law. At all events he lays down a great deal of law, and it is always good, we believe. This being true, his autograph may be deemed desirable by some lawyers. It is an exceedingly scarce signature, and not a remarkably good onegood as our own, for example, and by no means so elegant as many of the reformed autographs of those penmen who study Mr. Gaskell's Compendium, which are contrasted and published in the advertising columns of The Century. Still it is probably worth more money. At any rate, what "is claimed to be a veritable autograph" of the

clared false, and the defendant, Sarah Althea, had judgment at the trial before a referee, but this is now set aside, on the ground that the letters, purporting to have been written by the plaintiff to the defendant, and addressing her as "dear wife," are forgeries. Judge Deady "cannot refrain from saying in conclusion that a community which allows the origin and integrity of the family the cornerstone of society to rest on no surer or better foundation than a union of the sexes, evidenced only by a secret writing, and unaccompanied by any public recognition of each other as husband and wife, or the assumption of marital rights, duties and obligations, except furtive intercourse, more befitting a brothel than otherwise, ought to remove the cross from its banner and symbols, and replace it with the crescent."

In Judge Dillon's interesting remarks, in another column, on the railroad case tried at Santa Fé, he omits to note the fact that the lawyers on one side at least brought a large law library on their train. Railroads have revolutionized legal practice, as they have revolutionized warfare. The fact is noticeable in our own Court of Appeals, where it is assisted by a day calendar. A few years ago three or four lawyers of this city argued nearly all the causes. One of them argued a third of all the causes. the attorneys themselves come by sleeping car, and argue their own causes.

said William is offered for sale by the Shakespeare A

Society of New York. It must be observed that William's education was very defective, if it is true, as James Freeman Clark alleges, that "his very name is spelled in at least two different ways in manuscripts professing to be his own autograph." Of course, if there was not any Shakespeare, and Bacon was the man, this discrepancy would be accounted for on the theory that he had forgotten how he had spelled his name. But then if Bacon wrote it, it would have no value as the signature of William. On the whole we do not care for it ourselves, but we would recommend that New York lawyer who paid $8,000 for a Bible, when he could have got one for fifty cents, or even for nothing, to buy it.

NOTES OF CASES.

Now

Web

MECHANICS' lien will not attach for lumber and sand hauled by a sub-contractor to premises on which a building was being erected. ster v. Real Estate Improvement Co., Massachusetts Supreme Court, January, 1886. The court said: "Under certain circumstances a lien may be established for work done away from the premises in the construction of a building. Dewing v. Wilbraham Society, 13 Gray, 414; Bennett v. Shackford, 11 Allen 444; Jones v. Keen, 115 Mass. 170; Wilson v. Sleeper, 131 id. 177. In these cases, although the labor was not performed upon the premises, it was done on the material 'which was designated or intended for use in the building on the premises, and was in fact so used.' Such labor was therefore to all intents and purposes performed in the erection, alteration or repair of a building under the terms of the statSpeaking of handwriting - the last number of ute. Where for the sake of convenience, or from the West Coast Reporter gives the opinions of the necessity, the material is shaped, the lumber sawed, United States Circuit Court, by Deady and Sawyer, planed and fitted for its proper place in the strucJJ., in the famous divorce case of Sharon v. Hill, ture, where the stairs are built, or the doors are with fac similes. It is a very entertaining and made for the building away from the premises, but something instructive case, and loses none of its in- in reality as parts of the labor of construction or reterest now that Sarah Althea has married her law-pair, intended to be used, and actually so used, be

coming parts of the structure, this work and labor are as effectual in laying the foundation for a lien as if performed upon the real estate on which the house is erected. These cases furnish no precedent for the case at bar. The petitioner does not allege that he performed any labor upon material which became part of the structure, so as to change its shape or character in order to adapt it to the building. He did nothing with the sand to make it fit and proper to enter into the construction of any part of the house, nor did he perform any labor by which the lumber was fitted and adapted to any section of the structure. What he did was to draw the sand to these premises so that the contractor, if he saw fit, with other material could make it into mortar, and use it in the construction of the building. In the same way with the lumber. When delivered the contractor could do with them as he pleased. He could sell the Immber, as his assignee in insolvency afterward did as to part, or he could use the sand in making mortar and then sell it, as was done by his assignee as to a portion thereof, or he could employ them in the erection of the house. We think this labor of the petitioner does not come within the terms of the statute; that it was not connected with the building of the structure, and that it was too remote to enable him to establish a mechanics' lien therefor."

McDonald v. Bewick, 51 Mich. 79. The cases above cited are not intended to be exhaustive on either side of the proposition. I shall not attempt a reconciliation when reconciliation is impossible; bu as the question is new in this State, the court is left to adopt such view as appears to rest upon principle. It is a general principle in the law of contracts, but not without exception, that an agreement entered into between parties competent to contract, in order to be binding, must be mutual; and this is especially so when the consideration consists of mutual promises. In such cases if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality. Hopkins v. Logan, 5 Mees. & W. 241; Dorsey v. Packwood, 12 How. 126; Ewing v. Gordon, 49 N. H. 444; Hoddesdon Gas Co. v. Haselwood, 6 C. B. (N. S.) 239; Souch v. Strawbridge, 2 id. 808; Callis v. Bothamly, 7 Wkly. R. 87; Sykes v. Dixon, 9 Ad. & E. 693; Add. Cont., § 18; Pars. Cont., § 449; Utica, etc., R. Co. v. Brinckerhoff, 21 Wend. 139; Lester v. Jewett, 12 Barb. 502. Such was the case here. The consideration, consisted of mutual promises of the parties not to be performed within a year from the making thereof. The defendants' promise was in writing, and signed by them; but the plaintiff's promise does not appear in the writing signed by the defendant, nor was any note or memorandum made and signed by him promising to labor for defendants three years or any length of time. Plaintiff was never bound by the agreement. There never was then any consideration to support defendants' promises. The agreement was void for want of mutuality. The plaintiff was under no legal obligation to work for defendants a moment longer than he chose, and the defendants were under none to keep him in their employment. See notes, 47 Am. Rep. 532; 25 Am. Rep. 543.

In Stiltz v. State, Indiana Supreme Court, Dec. 31, 1885, 4 N. E. Rep. 145, the following instruction was held wrong: "While each juror must be satisfied of the defendant's guilt beyond a reason

In Wilkinson v. Heavenrich, Supreme Court of Michigan, Jan. 6, 1886, 26 N. W. Rep. 139, it was held that a contract in writing for services for a term exceeding one year, at a stipulated salary, signed by the employer only, and containing no promise on the part of the employee to perform such services, is void, and the employee cannot recover if discharged before the expiration of the term. The court said: "The conflict of authority upon questions of the kind raised upon this record is truly bewildering, and the cases are incapable of being reconciled with each other; a large and respectable class holding that a contract which the statute of frauds declares shall not be valid unless in writing, and signed by the party to be charged therewith, need only be signed by the party defend-able doubt to authorize a conviction, such reasonable ant in the suit, and that it is no objection to maintaining such suit, and recovering upon such contract, that the other party did not also sign, and was not bound by its terms. 2 Kent Com. 510; 2 Stark. Ev. 614; Smith's Appeal, 69 Penn. St. 481; Tripp v. Bishop, 56 id. 428; Perkins v. Hadsell, 50 Ill. 215; Old Colony R. Corp. v. Evans, 72 Mass. 31; Williams v. Robinson, 73 Me. 186; S. C., 40 Am. Rep. 352. Another and equally respectable class of jurists hold that unless the party bringing the action is bound by the contract, neither is bound, because of the want of mutuality. Lees v. Whitcomb, 14 E. C. L. 572; Sykes v. Dixon, 36 id. 366; S. C., 9 Ad. & E. 693; Krohn v. Bantz, 68 Ind. 277; Stiles v. McClellan 6 Colo. 89. And see also, as bearing upon the question, Hall v. Soule, 11 Mich. 496; Scott v. Bush, 26 id. 418; Liddle v. Needham, 39 id. 147;

doubt, unless entertained by all the jurors, does not warrant an acquittal." The court said: "This instruction is palpably erroneous. There can be no conviction of a crime unless all the jurors are satisfied, beyond reasonable doubt, of the guilt of the accused. The law upon this point is firmly settled. The instruction before us in effect reverses this rule, for it informs the jury that such reasonable doubt, unless entertained by all the jurors, does not warrant an acquittal.' This must have induced the jurors to think that unless all concurred in entertaining a reasonable doubt the verdict should be against the defendant. This is in direct opposition to the rule declared by our decisions. Castle v. State, 75 Ind. 146; Clem v. State, 42 id. 420. This instruction is essentially different from the one passed upon in Fassinow v. State, 89 id. 235. A reasonable doubt entertained

often used in the same sense as importing a public way for passage or travel. The word 'road' is uniformly taken as a public highway, and such is the common and legal acceptation of the word 'road.' Respublica v. Arnold, 3 Yeates, 422. It is therefore synonymous with highway. A street commonly refers to a public highway in a village or city, and ordinarily includes a sidewalk and roadway. Himmelmann v. Satterlee, 50 Cal. 69. 'The word 'street,' as commonly understood,' said Agnew, J., 'means a public highway in a town between houses or lots for travel of all persons on foot, or on horseback, or in carriages. Reed v. Erie, 79 Penn. St. 352. The word 'street,' prima facie and naturally, imports a public highway.' Hamlin City of Norwich, 40 Conn. 25. 'Strictly,' said Marvin, J., 'a street is a paved way or road, but the term is used for any way or road in a city or village. It is defined by Bouvier (Law Dict.) as a road in a city or village. Thus a highway is a road, and a street is a road.' Brace v. N. Y. C. R. Co., 27 N. Y. 269; see also Conner v. New Albany, 1 Blackf. 88, 89; Debolt v. Carter, 31 Ind. 355; Clarke v. Commonwealth, 14 Bush, 169; State v. Moriarity, 74 Ind. 104."

THE HISTORY OF CONSTRUCTIVE CONTEMPT
OF COURT.

NOW

OW that the case of Harvey M. Munsell, one of the jurors in the O'Donovan Rossa trial, has been finally disposed of by the Court of Appeals, affirming the order of the General Term of the Supreme Court, reversing the order of Judge Van Brunt, punishing him for contempt of court by a fine of $250 and thirty days' imprisonment, it may be interesting to review the history of the doctrine of constructive contempt of court, on which Judge Van Brunt's decision was based.

The appellate courts have only decided what every lawyer knew before the appeal was taken - namely, that the juror in question did not violate any part of the statutes defining contempt of court, and that if his offense in visiting O'Donovan Rossa's office deserved punishment, it should have been punished as a misdemeanor, indictable and triable by a jury, not as a contempt.

It was not a contempt, but Judge Van Brunt chose to construe it as such in order to inflict summary punishment upon the offender, and thus it became a constructive contempt.

There can be no question as to the right of courts of justice to punish actual contempts committed in their presence, both under statutory and the common law, nor as to the propriety of exercising this power within reasonable legal and constitutional limits, but the pernicious, arbitrary and dangerous doctrine of constructive contempt of court should have been consigued to the tomb of the Capulets long ago.

It had its origin in the Star Chamber in England, and with it should have passed away, for it is opposed to the spirit of Magna Charta and all free institutions, because it usurps the functions of trial by jury. It is judicial legislation in its worst form.

Punishments for so-called contempts of court committed out of its presence should invariably be by presentment and indictment as misdemeanors, so that the offenders may be tried by their peers. The punishment of juror Munsell by $250 fine and thirty days' imprisonment was therefore an arbitrary, judicial act, without warrant of law, and a gross violation of his rights as a citizen.

The two kinds of contempt of court recognized by the law of England may be thus defined: A direct con tempt of court is an act committed within the view or hearing of a court, or a hindrance or disobedience of its lawful process, whereby it is directly and intentionally retarded or obstructed in the discharge of the duties imposed upon it by law for the benefit of so

RESIDENCE. In Grogan v. London and Manchester Industrial Ass. Co., Q. B. Div., 53 L. T. Rep. (N. S.) 761, an applicant for insurance on the life of his father stated that his, the applicant's residence, was at a certain street and number in Manchester, whereas in fact he was only staying there temporarily, and resided in Ireland, whither he returned in three months. Held, not an untrue statement avoiding the policy. The court, Manisty, J., said: "The evidence therefore, in my opinion, all points in one direction, that the residence of the assured at the time the proposal was made and the policy effected was, according to the true meaning of that word, in the form of proposal, at the place which was actually stated therein." Smith, J., said: "This brings us to the question as to what is the meaning of the term 'residence' in the document of proposal. That document, after the heading, asks first, the name of the person proposing to ef fect an assurance, secondly, his profession or occupation, then his residence. Now that, in my opin-ciety. A summary method of preventing and punishion, means the place where he is living or residing at the time of making the proposal, and not where he has been residing before, or where he is going to reside afterward. If the company desired to know this they could have asked the question in so many words in the numbered questions which follow these particulars with which the proposal opens. The assured filled up the space after 'residence' with the address where he was then residing, and where he was going to reside for the next three months, and it has been argued, and the county court judge has apparently held that that is not the true construction of the word 'residence' in this document. I am of opinion that the county court judge was in error, and was not justified in his finding."

ing this form of contempt is obviously necessary, and must necessarily be as old as the laws and courts them

selves.

A constructive contempt, on the other hand, is an act committed beyond the view or hearing of a court having reference to its judges or proceedings, which may or may not be construed to have a tendency to obstruct or retard the duties of the court. Newspaper criticism and Munsell's case would be classed under this heading.

Direct contempt of court is a direct attack upon the rights of society, and can rarely be misunderstood, and never justified. Constructive contempt may be merely an honest seeking after truth, or exposure of wrong, for the benefit of society.

Under the old Anglo-Saxon law constructive contempt could never have been punished in the modern summary manuer from the very nature and constitu