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that they are to have in their judiciary the leaven of a judge not tired of his profession and worn out in its encounters, but bringing to his duties the freshness and mental and physical vigor of ripening manhood.
The LEGISLATURE. ARBITRATION. — The New York Chamber of Commerce succeeded in securing the passage, during the last session, of an act establishing a court of arbitration for the settlement of mercantile disputes. Most of the limitations suggested by us (vol. vii. p. 324) have been incorporated in the act, to wit: Resort to the court is to be optional; matters pertaining to a fee or life tenancy in real estate is not included in the jurisdiction of the court; the award of the court is to be final, except in case of fraud, col. lusion, or corruption on the part of the court. The act provides for the appointment of an arbitrator by the governor, to hold office during good behavior, and who is to receive a salary, to be fixed and paid by the Chamber of Commerce. Any party or parties, whether members of the Chamber of Commerce or not, having controversies upon mercantile subjects arising or within the port of New York, may summon the opposite party to appear before the court of arbitration at a time not less than two nor more than five days from the personal service of the summons. At the time mentioned in the summons either party may file written objections to the arbitration, and the matter is to be thereupon dropped; but if such objection is not filed, the parties shall be deemed to have submitted to the jurisdiction of the tribunal. Each party is then entitled to nominate one person to sit with the arbitrator to hear and determine the matter. The award is to be filed with the clerk of the county, and is to be enforced as and to have the effect of a judgment. A rehearing may be ordered by the arbitrator for good cause shown. On the first hearing no costs are to be allowed to either party, but on a rehearing the party applying therefor is to pay the costs. The details as to the rules, forms, proceedings, &c., securing the attendance of witnesses, false swearing, the care of the record, &c., are numerous and apparently well devised. It is, however, to be regretted that the act does not indicate whether the tribunal shall observe the ordinary rules of evidence, or be at liberty to admit any thing as evidence which they may consider material to the point in issue; or whether they should be guided by the principles laid down by the courts of law, or decide, irrespective of precedent and according to their own views, of what is just or proper in each particular case. The Hon. Enoch L. Fancher, ex-judge of the Supreme Court, has been appointed arbitrator under the act. The selection is a most fortunate one. — Albany Law Journal.
PERPETUITIES. APPEAL OF THE PENNSYLVANIA Co. FOR INSURANCE OF LIVEs. — The Supreme Court of Pennsylvania has recently held that where a testator gave a certain allowance to his minor (and only) child during her minority, and provided that all accumulations of the income of his estate over and above that allowance should form part of the body of his estate, such accumulations could not so vest, but would, under the statute of that state of the year 1853, become the property of the minor.
The court, in making this decision, say that the statute in question is almost a literal transcript of the British act (39 and 40 Geo. III. c. 98), omitting the second and third clauses thereof, which respectively allow accumulations for the period of twenty-one years after the death of the grantor or testator, and during the minority of any person living at such death; and, in view of these omissions, it is considered that it was the intent of the legislature that there should be no accumulation of the estates of decedents, except in favor of those minors who should be beneficiaries under the deed or will by which the trust should be raised. — Pottsville Legal Chronicle.
BANKRUPT Act. State EXEMPTION Laws. — UNITED STATES CIRCUIT Court, EASTERN District. In re Daniel Deckert. — Chief Justice WAITE, sitting with Judge Bond, in the Circuit Court, on the 5th day of June, read an important opinion in the above case, on a petition of a bankrupt to have his homestead set off to him.
By Article XL. of the Constitution of Virginia, adopted in 1869, it was provided that every householder or head of a family should be entitled, in addition to the articles then exempt from levy or distress for rent, to hold exempt from levy and sale under execution, &c., issued on any demand for any debt theretofore or thereafter contracted, his real and personal property, &c., to the value of $2000, to be selected by him. An act of the general assembly of Virginia, approved June 27, 1870, gave effect to this provision, by prescribing in what manner and upon what conditions such householder could set apart and hold such exemption.
Under the bankrupt law, as originally enacted, there was exempted from the assignment of property required to be made by the bankrupt to his assignee, among other, such property as was exempt from levy and sale under execution by the laws of the state in which the bankrupt had his domicile at the time of the commencement of the proceedings in bankruptcy, to an amount not exceeding that allowed by such state exemption laws in force in the year 1864.
By an amendatory act passed on the 8th June, 1872, this provision was changed so as to give the bankrupt the benefit of exemptions under laws in force in 1871. In 1872 the Court of Appeals of Virginia unanimously decided (22 Gratt. 266) that the provision of the constitution just referred to, and the statute giving effect to the same, so far as they applied to contracts entered into or debts contracted before their adoption, were in violation of the Constitution of the United States, and therefore void. After this decision, on the 3d March, 1873, Congress passed another act in the following words :
“ Be it enacted, &c., That it was the true intent and meaning of an act approved June 8, 1872, entitled, &c., that the exemptions allowed the bankrupt by the said amendatory act should, and it is hereby enacted that they shall be, the amount allowed by the constitution and laws of each state respectively as existing in the year 1871; and that such exemptions be valid against debts contracted before the adoption and passage of such state constitution and laws, as well as those contracted after the same, and against liens by judgment or decree of any state court, any decision of any such court rendered since the adoption and passage of such constitution and laws to the contrary notwithstanding."
This act of 1873 the court now decide to be unconstitutional and void, because it is not uniform in its operation throughout the United States, and the act of 1872 is therefore left in force as it was before that of 1873 was passed.
COURT OF APPEALS. — RESOLUTIONS OF THE BAR. — We find in our contemporary, La Revue Critique de Législation et de Jurisprudence du Canada, for April, an extended account of the difficulties between the government and the Montreal bar, arising out of the constitution and alleged inefficiency of the Court of Queen's Bench.
At a meeting of the bar in December last it was —
Resolved, “That the administration of justice in the Court of Queen's Bench has been for some years past inefficient, unsatisfactory, and destructive of the confidence which should be reposed in the highest court of the Province; and that, in the interests of justice, an immediate inquiry by royal commission into the causes of such a lamentable state of affairs is imperatively required.”
Resolved, “That, in view of the foregoing resolution, the bar of this section abstain from pleading before the Court of Queen's Bench during the present term, and that the chairman of this meeting do communicate this and the foregoing resolution to the said honorable court."
The Court of Queen's Bench consisted of Chief Justice Duval and Judges Badgley, Monk, Taschereau, and Ramsay. The Chief Justice, a man of ability, had become incapacitated by age and infirmity from attending to much business, and had quite regularly.absented himself of late. His temper, also, when he was present in court, was found to be uneven and infirm; and the government had lately appointed Hon. T. J. J. Loranger an assistant judge during the illness and absence of the Chief Justice.
Judges Taschereau and Ramsay were recent appointments and good judges. Judge Badgley, a judge of great learning, had become so deaf as to interfere seriously with his capacity for work. Mr. Justice Monk was charged with partiality, and being secretly influenced; and generally it was suspected that the Montreal judges favored certain lawyers in the Montreal district, and that the Quebec judges were partial to lawyers in the Quebec district; and the general discontent finally culminated in the above unprecedented action of the bar. The resolutions were presented to the court, and the members of the bar absented themselves regularly, so that the term came to a close without the transaction of any business. This prompt and decided action of the bar, after provoking slowness and many delays on the part of the government, has wrought the desired change, and the Chief Justice resigning, Hon. A. A. Dorion, Minister of Justice, and to whose door has been laid not only the appointment of the judges whose course has occasioned this action of the bar, but also the slowness of the government in reorganizing the court, has just been appointed his successor. Judge Badgley also resigned, and Mr. Justice Sanborn succeeds him. Leave of absence has been granted to Judge Monk, and it is probable that he will be forced to resign; so that the bar may congratulate themselves on the success of their public spirit, and unity and energy of action. This whole transaction furnishes an argument for the organization of the bar into associations to provide for the common defence, and promote the general welfare. The scandal, of a court in part composed of men who, if not corrupt, were commonly supposed to be accessible to secret influences, had already reached our ears in connection with some recent extradition cases before this explosion occurred; and we are in hearty sympathy with the position that the leaders of the bar led it to assume.
BREACH OF PROMISE. — Breach of promise actions, says the Paris correspondent of the Daily News, are rare in France. The law does not admit compensation for injured feelings, and to sustain a suit of this kind it is always necessary to prove special damage. An attempt to do this has just been made before the Civil Tribunal of the Seine by a lady calling herself Malle. Decaisne. She sued a gentleman with the curious name of Mariage, and laid her damages at 10,000 francs, because, on the faith of the engagement, she had given up a place of companion to a person of rank, and had bought a trousseau. The defence was that M. Mariage (aged forty-five) had not sought either fortune or beauty, but he desired youth, and the plaintiff had deceived him about her age. She at first represented herself to be twenty-three, but afterward owned to twenty-six. Though disappointed, he had made up his mind to put up with this difference; but he had found out by the register that she was in reality thirty-two, and that was a figure he could not accept. The court pronounced a verdict for the defendant. — Albany Law Journal.
NUISANCE. — In a recent case before the Civil Tribunal of the Seine the question arose whether the use of a house as an unlicensed maison de tolerance was to be considered as ipso facto an actionable injury to the neighbors. A M. Souply having devoted his house to immoral purposes, M. Petit, one of his neighbors, gave him notice within forty-eight hours to dismiss the inmates, and to take care in future that his house was inhabited by persons of better life and more decorous mien. No attention having been paid to this demand, M. Petit brought his neighbor before the tribunal to have it enforced. The court held that, although a lodger in the house of M. Souply might have properly complained of the conduct of the other inmates, yet that a neighbor had no right of action arising out of the use of the house for immoral purposes, unless scenes or scandals occurred tending to interfere with his peaceable enjoyment. No facts of this nature were alleged by M. Petit. In letting his house out in the manner described, the court remarked M. Souply acted strictly within his legal right. Moreover, from the documents in the case, it appeared that many other houses in the locality of the defendant's house were devoted to the same purposes, and must present the same annoyance to neighbors. So that, on the whole (many wrongs making a right), M. Petit's demand was declared unfounded, and he was condemned to pay the costs.
We quote from our contemporary, the Law Times, the following editorial on the position of Dr. Kenealy, which may be of interest to our readers. We believe the irascible counsel has brought suit against the Law Times because of this article, and for that reason, if for no other, it may be worth our repetition.
Of all the painful and humiliating incidents connected with the trial of the claimant to the Tichborne baronetcy, the most painful and the most humiliating, so far as the legal profession is concerned, and more especially the bar, is the ill-judged and most unfortunate line of conduct pursued by Dr. Kenealy. But in order to understand the accumulated follies which in the aggregate constituted an offence which aroused the indignation and anger of three of the most amiable judges on the bench, disgusted a singularly indulgent jury, and shocked the educated public, it is necessary to consider the probable influences of circumstances upon the mind of the offender. Dr. Kenealy, although widely read and liberally educated, is undoubtedly a man of extremely small mind and narrow and contracted views. The class of cases in which he had been mainly engaged was precisely suited to his peculiar temperament, and his conduct of the Overend and Gurney prosecution showed how easy it is for a doubtful case to be made utterly hopeless by ill-judged advocacy. But with all his narrowness and littleness of mind, Dr. Kenealy was ambitious, and it is now perfectly plain that when he found himself leading a defence in a stupendous cause, which he more than once boasted was a state trial unparalleled since the trial of Charles I., the little discretion which he possessed disappeared before the overwhelming sense of his own importance. To him it was a great misfortune that he should have been selected to lead such a defence; and whilst we have no desire to shield him from any of the consequences of his misconduct, we think that the nature of the delinquent, and the extraordinary circumstances by which he was surrounded, should be attentively considered before his censure by the bench and the jury is accepted as a conclusive reason why he should no longer be allowed to practise his profession.
We do not propose to go into the merits of the indictment which must be preferred against the learned gentleman; but it is necessary that we should consider how far forensic excesses are to be justified by circumstances or palliated by a mistaken sense of duty. The first point raised is, What is to be the standard of decorum, and upon what evidence is counsel to be condemned? We can see many reasons why the denunciation of a presiding judge should not be accepted even as evidence against counsel. There may be cases in which it becomes the positive duty of an advocate to resist the control of a judge, and even to retort upon the bench. Under such circumstances the judge becomes pro hac vice the opponent of the advocate, and when the judge is summing up, no reply upon him being possible, it is only natural that he should make his assailant feel the full weight of his hand. True it is that in the celebrated cause now ended we have three judges and a jury all concurring in one view, which renders it the more difficult to select any outside standard by which to judge counsel. But as a rule, we are disposed to think that an outside standard is the only fair test which can be adopted. The voice of the profession and of the public ought to determine whether the extreme penalty, if any, is to be inflicted.
In the present instance the public press has, with singular unanimity, called upon the Benchers of the Inns, of which Dr. Kenealy is a member, to consider the course which their duty to the public dictates. We admit that an immediate investigation is inevitable; but, dealing as we are with the subject generally, we must regret that