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that neither the judgment nor the order of court de- as follows: “This is Charles O'Conor's first codicil to nying defendant's motion to open the default is a bar his last will and testament. This instrument made to such action. (2) The fraud of defendant in procur- and sigued April 28, 1884." At the date of the codicil ing said default was assigned as oause for setting aside an important argument in the litigation was approachthe judgment. Held, that as plaintiff had no defense ing. Held, that the gift of the papers, etc., was a volto the action of vullity, she was not entitled to have untary surrender of the lien, and that as the lien the default thereon set aside. Her charge of fraud would fail if defendant had been released, testator consists simply of an allegation, in substance, that the did not intend to release him, and the word “will ” defendant, who is a lawyer, represented to her that in the phrase " named in this will ” did not include her marriage to him was void by the law of New York, the codicil. Oot. 11, 1887. Sloane v. Stevens. Opinion and that she had incurred liability to a criminal prose- by Finch, J. cution for entering in it, and that she was by these representations induced to refrain from defending the UNITED STATES SUPREME COURT ABaction. Without discussing the question of law in

STRACT. volved, it is sufficient for the purpose of this appeal to say that whether the marriage between the defendant 6 CARRIER-PASSENGER’S LOSS OF LUGGAGE-REFUSAL and the plaintiff was legal or illegal, as matter of law,

TO STOP.-A railroad company is not liable in damage the fraud by which she was charged with having in

for a loss resulting to a passenger from its refusal to duced the defendant to enter into the contract was

stop the train upou which he was riding, short of a sufficient to justify the court in setting it aside, and usual station, to enable him to recover a hand-bag that she does not in any manner attempt to deny that

which he was carrying with him, and which he dropped she was guilty of the fraud charged, nor to show that

from a window of the car while attempting to lower she had any defense upon the facts to the action of

the sash. Oot. 31, 1887. Henderson V. Louisville & nullity of which the defendant deprived her, even if

N. R. Co. Opiniou by Gray, J. he was wrong in his statement of the law-a question which we do not now decide. Oct. 11, 1887. Blank v.

PARTNERSHIP — DISSOLUTION BY CONDUCT.-In a Blank. Opinion by Rapallo, J.

suit for an accounting, under articles of partnership,

brought by the administrator of one of the parties STATUTE OF LIMITATIONS — FRAUD - DISCOVERY

against the executrix of the other, it appeared that PLEADING-VARIANCE. -Under the New York Code of

the partnership was to continue for a certain time, Civil Procedure, § 382, a right of action for fraud, unless dissolved by mutual consent; and that the within the meaning of the statute of limitations, ac- complainant's intestate had never complied with the crues on discovery of the facts constituting the fraud. terms of the agreement, but shortly after its execuIn an action to set aside for fraud a deed to defendaut tion had accepted a publio office in a distant city, and by plaintiff's father, it appeared that the father was absented himself, in the discbarge of the duties weak in mind, but not destitute of mental capacity; thereof, until after the date of the expiration of the that the facts constituting the fraud and right of ac- agreement, and on his returu had made no attempt to tion thereon were disclosed to and understood by enforce the same; and that a written agreement, exehim; and that an action thereon had been brought by cuted by the parties to the articles of partnership his consent. Held, that this was such a discovery as shortly before the death of the complainant's intesset the statute in motion, and that the running of the tate, was inconsistent with any claim thereunder. statute was pot arrested by a subsequent fraud in ob- Held, the evidence showed that complainant's intestaining a settlement of the suit, or by regaining an un- tate regarded the agreement as never having gode due influence over the father. (2) An answer that the into effect, or as having been cancelled, and that the cause of action did not accrue within six years before bill was properly dismissed. Oct. 31, 1887. Davis v. the commencement of the action, sufficiently pleads Key. Opinion by Blatchford, J. the statute of limitations. (3) The action cannot be

PUBLIC LANDS-STATE GRANTS-DISPUTED BOUNDsustained to obtain relief for fraud in inducing the

ARY LINE. — The boundary line between Georgia and marriage between plaintiff's father and mother, committed by defendant in falsely representing to the

Florida was long in dispute-Georgia claiming to a mother that the property in question was so left to

line called “Watson's Line," and exercising political

jurisdiction, and making grants of land to that line; the father, that if he married and had an heir, it

while Florida claimed to a line called “McNeil's would go to the heir. Oot. 11, 1887. Piper v. Hoard.

Line," further north than Watson's. Upon running Opinion by Finch, J.

the true line, as finally agreed upon by the two States, WILL-CONSTRUCTION-CODICIL-RELEASE OF IN

it was found to be further north than McNeil's line. DEBTEDNESS. -A testator had been counsel for de

Held (1) that the grant made by Georgia of the land fendant in certain litigation, and at his death held pos- in dispute, which was south of McNeil's line, though session of certain papers, etc., relating to the litiga- made while Georgia exercised the powers of governtion, and on whicb he bad a lien for his ser- ment de facto over the territory there, was neverthevices, most of the services antedating his will. legs void ; (2) that the confirmation by Florida of the By will made January 22, 1883, 'testator re

grants made by Georgia did not invalidete or disturb Jeased all demands wbich he might bave at his the grant of the land in dispute previously made by death against any person “named in his will,” and in itself. The first case in which the question arose was terms revoked all previous wills and codicils, but de- that of Foster v. Neilson, 2 Pet. 253, in which the grant fendant was not named in the will. This release came was made in 1804 for laud in the district of Feliciana, after the naming of all to whom it was to apply. Tes- east of the Mississippi. The principal questions artator afterward, by a clause in a codicil made two gued were–First, the true interpretation of the treaweeks before his death, released certain specified ties of 1800 and 1803 as to what territory was ceded to debtors, excluding defendant, and including two who the United States; and secondly, the effect of the conbad been released by the previous testamentary in- firmation of Spanish grants contained in the treaty of strument, and including also one who had not been 1819. Mr. Coxe, it is true, took the ground that the released. In the next succeeding clause of the codi- acts of a sovereign power over territory it has ceded cil defendant was mentioned by name, without words are lawful until possession has been transferred, and of release, called testator's “faithful and honorable therefore that the grants of Spain, while still in posfriend," and given the papers, etc. The codicil began session, and exercising the powers of government de facto, should be held to be valid. Mr. Webster, who by the charter of 1665, and by the Constitutions of was on the same side with Mr. Coxe, did not allude to that State and Virginia, adopted in 1776, on the paralthis argument, and the court took no notice of it, but lel of 36 degrees 30 minutes worth latitude. In 1779 an placed its decision on the ground, that by the true attempted survey of the live was made by commisconstruction of the treaties, Louisiana included West sioners of the two States, who failed to agree; but a Florida to the Perdido, and therefore that the territory line run by Dr. Walker, one of the commissioners, was in question did not belong to Spain when the grant practically used as the boundary of jurisdiction. It was made, and so the grant was invalid; but that if was afterward found to be too far north by several this were not a clear proposition (and the court ad- miles, and a line was run on the true parallel by Prof. mitted that it was a question of doubtful construc- Mattbews, of Transylvania University. Tennessee tion), the judiciary would nevertheless follow the ac. laid out her counties, and exercised all sovereign jurtion of the political department of the government isdiction, up to the Walker line, and both North Carocharged with the management of its foreign affairs. lina and Tennessee made grants of land up to that line which bad always contended for the line of the Per- and north of the true parallel. On the other hand, dido, and had finally taken full possession of the coun- Kentucky made grants south of that line, and up to try. The case of Foster v. Neilson was followed in Matthews' line. In 1820 Kentucky and Tennessee the subsequent cases of Garcia v. Lee, 12 Pet. 511; U. agreed to adopt Walker's line as the boundary of the S. v. Reynes, 9 How. 127; U. S. v. D'Auterive, 10 How. two States; but it was stipulated that all private 609; U. S. v. Philadelphia, 11 id. 609; Montault v. U. rights and interests of land between the two lines, S., 12 id. 47; U. S. v. Castant, id. 437; all of which are theretofore derived from either State, should be conreferred to, and the history of the controversy is sidered as rightfully emanating therefrom; but all vagiven, in U. S. v. Lyude, 11 Wall. 632. It may how- cant and unappropriated lands within those limits ever be said that the decision in these cases was con- were declared to belong to Kentucky, and subject to trolled by the act of Congress approved March 26, 1804 her disposal. No provision was made for cases of (2 Stat. 287), the fourteenth section of which declared conflicting grants of the same laud made by Virginia void all grants for lands within the territories ceded or Kentucky, on one side, and by North Carolina or by the French republic to the United States by the Tennessee on the other. The case before the court treaty of April 13, 1803, the title whereof was at the was one of that kind, the plaintiffs claiming under a date of the treaty of St. Ildefonso in the crown, gov- Virginia warrant, and a grant made by Kentucky in ernment or nation of Spain; saving however the titles pursuance thereof in 1796; the defendants claiming of actual settlers acquired before December 20, the same land under North Carolina grants made in 1803. It is doubtless true that this act did have a con- 1786, 1792, 1797, and Tennessee grants of subsequent trolling influence in the cases referred to, but the years; and the lands in controversy being situated becourt discussed the question upon general principles tween tbe two lines before mentioned. This court also, and no bint is dropped that the existence of a held that the parallel of 36 degrees 30 minutes was government de facto would have any influence on the always the true line until altered by agreement of decision. Iu Garcia v.Lee Chief Justice Taney expressly the two States in 1820; and that the grants made by argues, that in a case of disputed boundary titles must North Carolina and Tennessee north of that line were stand or fall with the right of the government creat- void ; and that the Virginia and Kentucky grants ing them. His language is: “Indeed when it is once were good, notwithstanding the actual occupation of admitted that the boundary line, according to the the disputed territory by Tennessee. The adoption American construction of the treaty, is to be treated of Walker's line in 1820 was held to have changed the as the true one in the courts of the United States, it true and original boundary only for the purpose of would seem to follow as a necessary consequence that future jurisdiction. Evidence of the previous exerthe grant now before the court, which was made by cise of jurisdiction by Tennessee up to Walker's line the Spanish authorities within the limit of the terri- not allowed to affect the question of title, tory which then belonged to the United States, must although the defendants proved that North Carolina be null and void, unless it has been confirmed by the and Tennessee had claimed to Walker's line as the United States by treaty or otherwise. It is obvious true line from the time it was run to the time of the that one nation cannot grant away the territory of treaty or agreement of 1820; that the county lives of another; and if a proposition so evident needed con- Tennessee were Walker's line on tbe north; that in firmation, it will be found in the case of People v. her legislative, judicial and military capacity TennesFleeger, 11 Pet. 210. In that case there had been a see always claimed possession, and acted up to said disputed boundary between two States, and the par- line as the northern boundary of the State; that proties claimed the same land under grauts from differ- cess was executed, criminal acts were punished, taxes ent States. The boundary line has been ascertained were paid, militia was enrolled, and all other acts by compact between the States after the grants were doue in subordination to the laws and government of made. And in deciding between the claimants in that Tennessee up to that line; and corresponding juriscase the court said: 'In this view of the matter it is diction was exercised by Kentucky to the same line perfectly clear that the grants made by North Caro- on the other side. Here was a case of mistaken bound. lina and Tennessee, under which the defendant ary, and when the error was discovered the States claimed, were not rightfully made, because they concerned agreed to adopt it as the permanent politiwere originally beyond her territorial boundary; cal boundary for the future, conceding on both sides and that the grant under which the claimants claim that it was not the true original boundary. Mr. Juswas rightfully made, because it was within the tice Story, delivering the opinion of the court, said: territorial boundary of Virginia.' And again: 'If “Although in the compact Walker's line is agreed to the States of North Carolina and Tennessee could be in future the boundary between the two States, it is not rightfully grant the land in question, and the not so established as having been for the past the true States of Virginia and Kentucky could, the invalidity and rightful boundary; on the contrary, the compact of the grants of the former arises, pot from any viola- admits the fact to be the other way. While the comtion of the obligation of the grant, but from an in- pact cedes to Tennessee the jurisdiction up to Walker's trinsic defect of title in the States.'" The case of line, it cedes to Kentucky all the unappropriated lands Poole v. Fleeger, 11 Pet. 185, quoted by Chief Justice north of the latitude of 36 degrees 30 minutes north." Taney, is much to the purpose. The northern bound Then after further remarks of the same purport follows ary of North Carolina (including Tennessee) was fixed the passage quoted by Chief Justice Taney, to the ef.


fect that the grants of North Carolina and Tennessee Henderson v. Poindexter's Lessee, and with all the were not rightfully made, because they were originally subsequent decisions above referred to; and as Mr. beyond their territorial boundary. The case of People Justice Catron, in a manuscript note upon this part v. Fleeger covers the case now under cousideration. It of Justice Baldwin's opinion, justly remarks: “No was a case of disputed boundary, and Tennessee ex- such question was raised in that case, and Poole v. ercised sovereign jurisdiction de facto up to a certain Fleeger is certainly to the contrary.' We think that line (Walker's), which she claimed to be the true the decision of the Supreme Court of Florida is erboundary line, and made grants of land to that line, roneous in deciding against the title of the plaintiffin just as Georgia did in the present case to Watson's error. That title is claimed under a grant from the line. Walker's line, like Watson's, was found not to United States of land acquired by treaty with Spain, be the true line, and the grauts made by Tennessee identified as such by the former treaty of limits, and were found to be for lands in territory belonging to the proceedings of the commissioners appointed to Kentucky:just as the grants of Georgia, next to Wat- carry out that treaty. The decision of the Supreme son's line, were found to be for lands in the territory Court of Florida, in effect, is either that the land was belonging to the United States and Florida. This not embraced in the treaty of cession, or if it was, that court decided that the Tennessee grants were void, the possession of Georgia gave a superior right. We notwithstanding the exercise of sovereign jurisdiction tbink it clear that the land was embraced in the treaty, de facto by that State over the territory in dispute and that the possession of Georgia did not give a suwhen the grants were made. If that decision was cor- perior right. Oct. 24, 1887. Coffee v. Groover. Opinrect, the grant made by Georgia of the land in con- ion by Bradley, J. troversy must be held to be invalid for the same rea- SALVAGE-CONTRACT-WAIVER OF SALVAGE CLAIM. son. The only difference between the cases is that -The captain of a salvage company, in response to Kentucky and Tennessee adopted the erroneous line telegrams, went to a sunken steamer, removed her as their permanent boundary, though recognizing the cargo, pumped her out, and towed her safely into fact that it was not the true original line; while in port. Before going to work the captain of the sunken the present case Georgia and Florida adopted the vessel asked what it would cost to get the vessel off, to nearest practical approach to the true line as their which the captain of the salvors replied: “I do not permanent boundary. This difference does not affect know." The captain of the vessel then said: “This is the question, except to make the present case the not a salvage service,” to which the other replied : stronger of the two. The only authority cited by the "Call it what you please, so I get my pay ;” and the Supreme Court of Florida for the proposition that a captain then said: “It is no salvage service." They government de facto can make a valid grant is a dic- finally agreed to submit the amount to be paid to artum of Mr. Justice Baldwin, in delivering the opinion bitration, in case the salvage company and the owners of the court in the case of Rhode Island v. Massachu. of the vessel could not agree upon a sum. Held, that setts, 12 Pet. 748. The question there was whether the salvage company was entitled to salvage compenthe people whose lands would be affected by the sation for the services rendered, as the conversation change of State line involved in that case ought to be between the captains did not amount to a contract made parties to the suit. Justice Baldwin says: “It is for compensation that would bar a claim for salvage, said that the people inhabiting the disputed territory and such claim was not affected by the agreement to ought to be made parties, as their rights are affected. arbitrate. It was held by this court in the case of It might with the same reason be objected that a treaty The Comanche, 8 Wall. 448, 477, that "nothing short of or compact settling boundary required the assent of a contract to pay a given sum for the services to be the people to make it valid, and that a decree uuder rendered, or a binding engaged nt to pay at all the ninth article of confederation was void, as the au- events, whether successful or unsuccessful in the enthority to make it was derived from the legislative terprise, will operate as a bar to a meritorious claim power only. the same objection was overruled in for salvage.” Nor was there in this case any agreePenn v. Baltimore; and in Poole v. Fleeger this court ment for a quantum meruit for the work and labor to declared that an agreement between States, con- be done by the libellant. In the case of The Indesented to by Congress, bound the citizens of each pendence, 2 Curt. 350, 357, the proper rule on the subState.” Thus far the reasoning of the court was un- ject was laid down by Mr. Justice Curtis in these answerable. Settlements of boundary belong to the words: “To bar a claim for salvage, where property sovereign power, and cannot be questioned by indi- iv distress on the sea has been saved, it is necessary viduals. But the learned justice proceeds to lay down to plead and prove a binding contract to be paid at what he supposes to be two principles of the law of all events for the work, labor and service, in attemptnations, which were entirely unnecessary to the decis. ing to save the property, whether the same should be ion of the question of parties wbich he was consider- lost or saved." A binding contract of that character ing. He says: “There are two principles of the law is not proved by such a conversation as took place beof natious which would protect them (private citi- tween the respective parties in the present case. In zens) in their property: (1) That grants by a govern- The Salacia, 2 Hagg. Adm. 262, 265, it was shown that ment de facto of parts of a disputed territory in its the master of the salvor vessel declared at first “that possession are valid against the State which had the he should not demand any salvage, but that his crew right (12 Wheat. 600, 601); (2) that when a territory is would not work unless paid for their labor, and that acquired by treaty, cession, or even conquest, the they declined taking a dollar a day, but would take rights of the inhabitants to property are respected two." As to this, Sir Christopher Robinson said : and sacred (8 Wheat. 589)." etc. This is the passage “It is probable that some such conversation may quoted and relied on by the Supreme Court of Florida. have passed at the beginning of this service, but it The second of these propositions is in accordance with might not be known what would be the extent of it; what we have already stated to be the received rule of and the court is not in the babit of considering such international law; but the first is opposed to the case loose conversations as conclusive of the merits of any which we have already cited in relation to Spanish case, when brought regularly before it.” In the pres. grants in Mississippi and West Florida, and to the case ent cage there was no assent by Capt. Stoddard to the of Poole v. Fleeger. As to the authority referred to statement of Capt. Baldwin that the service was not a (12 Wheat. 600, 601), it is a mere dictum of Mr. Justice salvage service; and the assertion by Capt. Stoddard Trimble in De la Croix v. Chamberlain, clearly incon- that the name of the service was immaterial, so long sistent with the decision made at the same term in as he should get his pay, was fairly a statement that he should insist on his pay for the services according criminal, can be as well served in the night-time as in to their aotual character. Nor can the agreement for the day-time; and a direction in a warrant to serve it, arbitration affect the question of a salvage service. In without limitation as to the hour of the day, is a dithe case of Hobart v. Drogan, 10 Pet. 114, there was rection to serve it in the night-time as much as in the an agreement to tow a ship in distress, " the matter of day-time. The intention of the Legislature to authorcompensation to be left to arbitrators at home, to be ize the executiou of the warrant in the night-time is appointed by the respective owners." As to this, Sir shown by providing for and by prescribing a direction James Hannen said: “This however was valueless as in the warrant which includes that instead of the dian agreement. It could not have been pleaded as any rection to search in the day-time, which it required in answer to an action for salvage brought in the ordi- the ordivary search-warrant. Since the Statutes of nary way in the Admiralty Division, and if effect 1852, ch. 222, these provisions have been the subject of could have been given to it at all, it would only have careful scrutiny, and bave been enacted no less than been by bringing an action upon it for not submitting five times. St. 1855, cbaps. 215, 397; Gen. Stat., ch. to arbitration.” Oct. 24, 1887. Potomac Steamboat 86; Stat. 1869, ch. 415; Stat. 1876, ch. 162; Pub. Stat., Co. v. Baker Salvage Co. Opinion by Blatchford, J. ch. 212. The repetitions emphasize the intention

manifested in the statute. The intention that there

should be authority to execute the warrant in the ABSTRACTS OF VARIOUS RECENT night-time might also be shown by the purpose and DECISIONS.

the particular provisions of the statute, and by its his

tory, and the history of other statutes authorizing CRIMINAL LAW-SEARCH-WARRANT-EXECUTION AT

searches and seizures; but the considerations already NIGHT.-A warrant to search for and seize intoxicating

presented are sufficient, and render further discussion liquors, issued under Public Statutes of Massachusetts,

unnecessary. Mass. Sup. Jud. Ct., Oct. 20, 1887. Comch. 100, S 30, in the form prescribed by that statute, may

monwealth v. Hinds. Opinion by W. Allen, J. be executed in the night-time. The only search-war

INDICTMENT-VARIANCE-NAME.--At the trial rant known to the common law was to search for of an indictment for threatening to accuse of a crime stolen goods. The usual direction of it was to search one Frank E. White,' the evidence showed that the in the day-time. Whether at common law a warrant threats were made to one Frank A. White. Held, a which directed a search not limited to the day-time fatalsvariance. The name of the person threatened in would be valid, and whether such a warrant could be necessary to the identity of the offense charged in the executed in the night-time, it is not necessary to con. indictment, and therefore must be proved as set forth. sider. See Dane Abr., ch. 217, A 2; Dav. Just. 30, 51, Com. v. Meban, 11 Gray, 321. It is settled in this Com148; 2 Hale P. C. 113; Burus, J., Search-Warraut, monwealth that a middle name or initial is part of the Bartons, J., 481; 3 Wms. Just. 86). The warrant in name, and a variance in regard to it is fatal. Com. v. question was not a common-law search-warrant, and Perkins, 1 Pick. 388; Com. v. Hall, 3 id. 262; Com. F. its validity and effect must be determined by the stat- Shearman, 11 Cush. 546. The ruling that there was 110 ute. The authority to execute a warrant in the night- variance if Frank A. White was the person called time, and to issue a warrant in which the authority to Frank E. White in the indictment, probably went execute it is not limited to the day-time, must be found upon the ground that E. might be rejected as surplusin the statute which authorizes the warrant. Such age, as is held in some States. It cannot be said as authority will be inferred unless the statute expressly matter of law that A. and E. are the same.

There or impliedly limits it to the day.time. We think such was no evidence that the party was ever called Frauk authority is found in the statute under which the E. White. Mass. Sup. Jud. Ct., Oct. 20, 1887. Com, warrant in the case at bar was issued. Pub. Stat., ch. monwealth v. Buckley. Opinion by Holmes, J. 100. $ 30. It does not, like Pub. Stat., ch. 58, § 4, pro- EVIDENCE-ACCOUNT BOOK.-A small account book vide that the warrant shall be directed and executed in which the plaintiff, who was unable to write, entered as provided in Pub. Stat., ch. 212, § 3; nor like Pub. by marks the number of loads of sand delivered to deStat., ch. 207, $ 57, that no search shall be made after fendant, is adınissible, being supported by his oath, Bunget unless specifically authorized; nor like Pub.

even though the marks were transferred by him to Stat., ch. 207, S 60, require that a warrant shall be is- the book from marks made on his cart by his servant, sued to search at any hour of the day or night; but it and the evidence of such servant as to the correctness contains full and explicit provisions, even prescribing of the number of marks is competent and necessary. a form of the warrant, excluding the inference that it It was a rough and imperfect book of accounts, but it is governed by Pub. Stat.,ch.212, & 3,and that the execu- was honestly kept, and was the record of the daily tion of the warrant under it is limited to the day-time. business of the party, made for the purpose of estabIts provisions differ in every particular from those lishing a charge against another. Pratt v. White, 132 of Pub. Stat., ch. 212, & 3. The direction of the warrant, Mass. 477. Such a book, supported by the oath of the instead of to the sheriff or his deputy, or constable, is plaiutiff, is competent, though the account was kept to be to the sheriff, deputy-sheriff, city marshal, chief only by marks, the plaintiff being unable to write. of police, deputy chief of police, deputy-marshal, police These entries are intelligible, and no more liable to officer or constable. There are particular provisions, fabrication than other entries. It is a book of origi. not contained in section 3, as to the description in the mal entries, though the marks were transferred from warrant of the place to be searched, and special pro- marks made on the cart by the servants of the plainvisions as to authorizing the search of dwelling-houses. tiff wbo delivered the sand. Smith v. Sanford, 12 The warrant is to command the officer to search the Pick. 139; Kent v. Garvin, 1 Gray, 148; Harwood v. premises, and to keep the property found until final Mulry, 8 id. 250. In the case where goods are delivaction, and to return his warrant to the court, instead ered by a servant, and his entries or marks are transof to search in the day-time, and to bring the prop- ferred to the plaintiff's account book, it has been held erty, and the person in whose possession the property that the servant must be a witness to support the is found, before the court; and the warrant itself, in charges, and to prove the delivery. Kent v. Garvin, the forni prescribed by the statute, is to “forthwith supra. In the case before us therefore the testimony enter the premises herein described, and make dili- of Joseph Pratt was competent and necessary. It gent and careful search," instead of to search in the there was doubt whether the plaintiff's book ought to day-time. The general rule is that process, civil or have gone to the jury, there is another ground upon


which the defendant's exceptions should be over- ties in a young lawyer, though he would bardly do so ruled. In a transaction like that involved in this case in a man of experience. Our Supreme Court is very it is not to be expected that any memory, unaided, careful of its dignity, and it would decidedly resent could retain accurately the number of loads of sand any thing which compromised this. Chief Justice delivered. The plaintiff bad clearly the right to use Waite, while be is simple in his manners, never forhis account book as a memorandum to refresh and aid gets that he is chief justice of the Supreme Court, his memory. The fact that the book went to the jury and he carries the dignity of a justice into his social could not prejudice the defendant. The only possible life. He is foud of society, and I have often seen him use the jury could make of it would be to count the with his pretty daughters at a White House reception. marks and see if the plaintiff had stated their number He lives very nicely at Washington, and owns a big correctly. Mass. Sup. Jud. Ct., Oct. 20, 1887. Miller brown-stone house just next to the Mexican legation. v. Shay. Opinion by Morton, C. J.

and within a stone's throw of the Arlington Hotel. He entertains frequeutly, and gives dinners and re

ceptions during the season. CHIEF JUSTICE WAITE.

The Waite family is one of the oldest families in the

country, and the coat-of-arms granted to it bears the THIEF JUSTICE WAITE is seventy-one years old date of 1512. Thomas Wayte, who was a member of

to-day. He was eligible to retirement just one Parliament, signed the death warrant of Charles I, year ago, and he could then have left the bench and and the family moved to this country soon after the have drawn his $10,000 a year for the rest of his life. Restoration. It was about thirty years after the landLike Justices Field, Bradley and Miller, he prefers to ing of the pilgrims that Thomas Wayte settled at earn his salary, rather than receive it as a pensioner, Lyme, Conn., and this man's son was one of the first and we have on the Supreme Bench of the United presidential electors after the war of the Revolution, States the curious instance of four hearty old men and cast his vote for George Washington. Judge working away day after day when they could receive Waite's father was chief justice of the Supreme Court the same amount of pay for doing nothing. Chief of Connecticut, and he studied law under Matthew Justice Waile promises to work for many years to Griswold, one of the most noted statesmen of early come. He has no intention of resigning his position, days. Like Judge Waite, he was a graduate of Yale, and his health is better now than it has been for years. and like Judge Waite, he was eminent as a jurist. He He has recovered from his sickness of two years ago, left the Supreme bench however at the age of sev. and he looks more like a man of sixty than of seventy-enty, and he died at eighty-two. If Chief Justice olie.

Waite lives as long, he will come within two years of His black eye is bright, and his strong face is almost outlasting the century. free from wrinkles. A thick growth of dark, iron- Waite's father gave him a good education. He engray hair covers his head, and a full beard of black, tered Yale at seventeen, and he graduated in the same mixed with silver, falls upon his chest. He has a class with William M. Evarts, Edwards Pierrepont splendid physique. Of medium height, his shoulders and Prof. Benjamin Silliman. Years afterward, when are broad, and his head fits firmly upon them. He he had moved to Toledo, Ohio, and made a reputation stands as straight as a Lake Superior oak, and his there, and Evarts had gone to New York, the two met carriage has all the dignity that should pertain to the as representatives of the United States in the arbitrahead of our judiciary.

tion at Geneva. This was, I think, his first entrance His face is a striking one. The forehead is broad upon his national career. He was known as a successand full, though not remarkably high. The eyebrows ful practitioner at Toledo, aud bad been a member of are dark and heavy, and the eyes which look out from the Ohio Legislature, but it was not until 1872 that under them sparkle with the feeling of the soul be- the people at large knew of his existence. hind. Sometimes they are grave and serious. At He returned to Toledo at the close of the arbitraothers they twinkle with laughter, and when Waite tion, became a member of the constitutional convenlaughs the twitching of a smile is seen about his strong, tion of the State of Ohio, and two years later President firm mouth. This mouth is full of character, and the Grant, to the surprise of all, sent in his name to the nose above it is large enough to be that of a great Senate as the successor of Chief Justice Chase. Waite

I took a good look at him as he sat upon the was surprised to receive the nomination. It came Supreme bench to-day. He has the central seat in the entirely without solicitation on his part, and without row of the eight grave seniors who comprise the pres- pressure on the part of his friends. It was confirmed ent Supreme Court, and the old-fashioned, bigh-backed unanimously, and Charles Sumner, John Sherman, mahogany chair in which he sits is directly under the George F. Edmunds and Allen G. Thurman made golden American eagle which looks down from the speeches in his favor. He took the oath of office Supreme Court gallery. This eagle has what looked March 4, 1874, just about one year after he had been to me like a golden snake in its mouth, and if it should admitted to practice in the Supreme Court of the let it fall the snake would drop upon the bushy hair United States. of the chief justice. Fastened to the eagle's talons is Judge Waite is a man who has made a success of life the key to an arched canopy of royal purple silk, and by sticking to his business. Neither the presidential the chief justice has thus a background like that of a vor any other political bee has ever buzzed in his thick king upon his throne. These decorations however thatch of dark hair, and he declined to be a candidate are the only ostentatious things about him. He wears for the presidency in 1876. Ex-Representative Hill, his robe, it is true, like the toga of a Roman senator, of Ohio, tells me that he made the address of welcome but there is nothing of the snob about him, and he is to Grant on the occasion of his visit to Toledo. This not puffed up with the great conceit of little men. He address was so full of good sense, and so free from shows himself human as he sits upon the bench, and adulation that Grant was delighted with it. He had he will laugh at the joke of a lawyer and yawn repeat- been pleased with Waite's action at Geneva, and he edly at a prosy speech. He listens closely to the evi. knew Waite to be a man of the utmost probity and no dence presented to the court, asks questions now and political aspirations. He extended his inquiries, and then, and not infrequently puzzles the young lawyers concluded that he was the man to be appointed chief by his interrogatories.

justice of the United States, and sent in his name Chief Justice Waite is a very kind-hearted man, and to the Senate. Waite accepted it, and the country it is probable that he would pardon serious informali. gained by his act.- New York World.


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