him generous with what he could no longer use, he, long before his death, gave his whole law library to the University of Michigan, and then withdrew to a retired private life. If the lawyer cannot die with harness on, in the full blaze of a great career, like Pinckney or Choate, it must be confessed the next best end is an old age like this. He descended to the tomb full of resignation at his fate and hope for his future, at peace with all mankind. His name and his memory will long be cherished among us.

MICHIGAN.

LEGISLATION.—The last legislature passed an act radically changing the practice in charging juries, and introducing what is here known as the Missouri practice, but which is in force in several of the Western States. The act is as follows: :

"SECT. 1. Hereafter, in all civil and criminal cases at law, circuit courts, in charging or instructing juries, shall charge or instruct them only as to the law of the case; and such charge or instruction shall be in writing, and may be given by the court of its own motion.

"SECT. 2. On the trial of any case at law, civil or criminal, in circuit courts, after the evidence is concluded, and before the case is argued or submitted to the jury, or the court trying the case without a jury, either party may present written requests for instructions on any point of law arising in the cause, and upon such written requests so presented, an argument may be made by the counsel for the respective parties, previous to the court passing thereon, as hereinfter enacted.

"SECT. 3. Whenever instructions are asked which the court cannot give, he shall, in the margin thereof, write the word 'refused;' and such instructions requested as the court approves, he shall designate by writing, in the margin thereof, the word given.'

"SECT. 4. The instructions or law so settled by the court in writing, either upon its own motion, or upon the application of the respective parties, shall be read to the jury, filed in, and be a part of, the record of the case, and the court shall in no case orally qualify, modify, or in any manner explain the same to the jury.”

This statute does not appear to have been solicited by either the bench or the bar; and on some dissatisfaction with it being expressed through the press, a subsequent act was passed, exempting from its provisions the county of Wayne, and any other county which may employ a stenographer for its circuit courts.

JUDICIAL DECISIONS.-Huson v. Dale was an action for slander, in which arose an important question as to the right to mitigate damages. Dale sued Huson for charging him with stealing a horse. Huson pleaded the general issue only. The speaking of the words being admitted, Huson offered to prove, in mitigation of damages, and for that purpose only, that the horse was taken from him by Dale and another person, under a writ of replevin, but under such circumstances set forth in the offer- as clearly to show that the writ was not sued out in good faith, but merely as a cover, and to enable them to obtain possession of the horse, and run him out of the county; that they did so obtain possession of the horse and run him off; that he, Huson, stated all the facts of the case to respectable counsel, who advised him they constituted larceny; and on such advice, he caused the parties to be arrested for the felony, but that

on examination on this charge, the complaint was dismissed. The Circuit Court rejected the evidence, and the plaintiff had judgment.

Held, that where the defendant does not insist upon the truth of the slanderous charge, he is entitled to give in evidence any facts in mitigation of damages, which go to show that he believed it to be true at the time he made it, and that he was not actuated by malice in the publication. Judgment reversed.

Metz et al. v. Detroit, was a bill to enjoin the collection of a paving tax. The city charter, as construed by the court, required the expense of grading and paving in front of each lot to be assessed upon such lot. The court held this provision to be void, as not being legitimate taxation, but an attempt, under the police power, to compel each lot owner to construct and keep in repair the street in front of his premises, according to a standard fixed by the city authorities. But the court also held, in this case, and in Hoyt v. East Saginaw, that it was competent for the legislature to authorize the expense of making and improving the streets, to be assessed within the taxing districts, without regard to valuation of property, either upon a basis of benefits, or in proportion to the frontage of such adjacent property upon the street. But taxing districts, and an apportionment of the tax throughout the same, according to some standard prescribed by the legislative authority, were essential.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN. -The St. Joseph. In this case the court (Withey, J.) held that liens given to material-men by State laws have precedence over a duly recorded mortgage. The learned judge further holds, that to establish a maritime lien for repairs and supplies furnished, it is not necessary to show an unforeseen and unexpected emergency; we give his remarks on this point:

"Until the case of Pratt v. Read, decided in December, 1856, by the Supreme Court of the United States, 19 How. 360, it had not been regarded as necessary to a maritime lien, that any unforeseen and unexpected emergency should exist for materials and supplies to a ship, when obtained by the master. And it has been questioned by high authority, whether the court, by that case, intended to change the law of liability for supplies to a vessel. The court does not intimate any such intention, and does not review the authorities or refer to the previous rulings of the courts of admiralty. The facts of the case were that the owner, who was also master, procured the supplies without any representations of necessity, and apparently under some general understanding and arrangement, which raised the presumption that there could be no necessity for the implied hypothecation of the vessel.'

"His Honor, Mr. Justice Swayne, at the June term, 1868, of the United States Circuit Court, at Detroit, is reported in the Detroit Post, to hold, in the case of Kelly v. The Propeller Pittsburgh, that the case of Pratt v. Read, 19 How. 360, had not altered the law of liability for supplies furnished to a vessel. Where the master obtains supplies, they are generally supposed to be given on the credit of the vessel, and, in all such cases, the vessel is liable for them.'

"Recently, his Honor, Mr. Justice Davis, in the United States Circuit Court, at Chicago, held, that to create a maritime lien for supplies, it must appear not only that they were needful, but the existence of some unforeseen and unexpected emergency must be shown. The Lady Franklin (Chicago) Leg. News, 273.

"Thus, as we understand, holding, that Pratt v. Read did alter the law of liability for supplies, to which case the learned judge refers. In view of the rulings of the two

distinguished members of the Supreme Court of the United States, taking different grounds as to the import of the decision in Pratt v. Read, it may be said the question is still an open one. We feel bound to follow the ruling of Judge Swayne; besides, our own judgment is that such is the correct view."

The case will be found reported in full in the Chicago Legal News for June 12, 1869.

MISSISSIPPI.

HIGH COURT OF ERRORS AND APPEALS. — Cassell v. Bachrach. This was a case of novel impression. On June 17, 1864, two bales of cotton belonging to the defendant were sold in Madison county for a tax due to the Confederate government. The sale was regular in all respects, and the cotton was bought by the plaintiff, and the price paid by him to the sheriff. This was a suit to obtain the value of the cotton which the defendant had detained from the plaintiff. The court held that the title acquired by the tax sale was good, and ordered a verdict set aside, which had been rendered for the defendant under an instruction to the jury that the tax sale conferred no title.

NEW YORK.

THE PRATT CASE. -The Osborne-McCunn imbroglio in New York has happily. reached a peaceful conclusion, and, much to everybody's relief, has been settled without an appeal to force. The natural hesitation which each of the disputants felt in actually employing that force which they so lavishly threatened, has saved the country from a collision which might have had disastrous effects. As it was, the battle of the jurisdictions was a drawn one, and, like the war of 1812, the victory was claimed by both parties; but the question has now reached a point, wherein an authoritative decision is absolutely necessary to enable us to avoid, for the future, such a crisis as the one we have just now escaped.

The facts are briefly these: A certain Major J. H. Pratt, of Texas, late of the Confederate army, was accused of having committed the crime of murder in that State, at the town of Jefferson, in 1868, but succeeded in escaping the sheriff in pursuit of him, and appeared in the city of New York, where he was recognized in the month of July last, and on a complaint, made under oath July 31, 1869, charging him with the commission of the crimes of murder and treason, he was arrested under a warrant issued by United States Commissioner Osborne, and was brought before him on the sixth of August for examination. Before this examination was concluded, a writ of habeas corpus was issued by Judge McCunn of the Superior Court, of the City of New York, and Marshal Barlow, by whom the arrest had been made, took his prisoner before Judge McCunn, who ordered his discharge from custody on the following grounds: 1st. That the United States government has no jurisdiction of the crime of murder, except in certain specified cases, and there was nothing in the warrant to show that this was one of those cases, and therefore it was a crime of which the courts of the State of Texas had exclusive jurisdiction; 2d. Under the Reconstruction Acts, an offence committed in Texas is an offence against the military law, of which a commissioner, being an officer of a civil court, cannot take jurisdiction; he cannot commit for a crime not cognizable by a civil court; 3d. The commitment states no act, of which the crime

of treason may be predicated, and is therefore, so far, fatally defective. In support of these views, the judge quoted In re Martin, 45 Barb. 143, Judge Nelson's decision In re Egan, 5 Blatchford, C. C. 319, and U. S. v. Hand, 6 McLean, 274; and while denying any intention of encroaching upon the jurisdiction of the United States, he still declared that he felt it his duty to discharge the prisoner from the custody of the marshal, which he thereupon ordered to be done. Marshal Barlow, however, took quite a different view of the matter, and carried back Pratt to Fort Schuyler, refusing to discharge him. He justified this refusal on the ground that a State officer had not the power to compel him, a United States officer, to discharge the prisoner, and relied on Judge Taney's decision in Ableman v. Booth, 21 How. 506. Judge McCunn, hereupon, considered the dignity of the State to be insulted, and threatened to prepare, and did actually prepare, though he did not issue it, a warrant to arrest Barlow for contempt of court, whereupon the latter telegraphed to the President for instructions, who ordered him to resist the warrant if issued, and to employ force, if necessary, to carry out his orders. In pursuance of this order, Barlow surrounded himself with soldiers, and, bristling with bayonets, carried Pratt before United States Commissioner Osborne on the sixteenth August, to complete the examination which had been begun by him before the writ of habeas corpus was issued. The prisoner's counsel refused to appear, or to make any motion, on the ground that their client was "legally at liberty," which the commissioner denied, and the District Attorney then proceeded to open the case for the Government. He held that it was clearly the duty of Judge McCunn to have remanded the prisoner to the custody of the Government on the writ of habeas corpus, and while disclaiming the idea that Judge McCunn had intended to bring about a conflict of jurisdiction, he thought he had unintentionally stepped over the line. He held that, by the law of the United States, the commissioner alone had jurisdiction, that no one else had the power to order a discharge; and, therefore, the dismissal of Pratt was illegal. Commissioner Osborne held that the evidence was insufficient to support the warrant, and he therefore ordered the discharge of the prisoner. Pratt was then discharged, and the matter ended happily here. It was fortunately Vox et præterea nihil. Something should be done, however, to avoid any such danger for the future.

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. In re Moses De Puy. Moses De Puy was tried in the United States District Court for violating the revenue law, on an indictment containing two counts; he was convicted on both counts, and on Feb. 15, 1869, sentenced on the first count, to be imprisoned at Blackwell's Island for the term of six months, and to pay a fine of one dollar, and stand committed until paid; and, on the second count, to be imprisoned at Blackwell's Island for the term of six months, and pay a fine of one dollar, and stand committed until paid, — this sentence to commence on the termination of the first." One Jacob De Puy was also sentenced at the same time. The marshal delivered De Puy into the custody of the keeper of the Blackwell's Island Penitentiary. Afterwards, one Nelson applied to President Johnson on behalf of De Puy, for a pardon, and the President directed the pardon to be made out. The warrant of pardon was signed by the President, and countersigned by the Secretary of State; it was sealed with

the great seal of the United States, and was sent from the Department of State to the United States Marshal in New York by mail, and was received by him on the 5th of March. The pardon was dated on the 3d of March, and the letter accompanying the pardon was also dated on the 3d of March, and was addressed to the marshal, and ran as follows: “Sir, — I transmit herewith the President's warrant for the conditional pardon of Moses De Puy, the receipt of which you will please acknowledge. I am, &c., F. W. Seward." The pardon was conditional on the payment of the fine, and this condition De Puy performed. It appeared that Nelson applied at the Department of State, and asked to be permitted to take the pardon, but he was told that it must be sent to the marshal, and that was the usual course in such cases.

On March 6th, in pursuance of a verbal order of President Grant, the Secretary of State telegraphed to the marshal that if De Puy had not been released, the marshal would regard his pardon as cancelled, and return the same to the Department; on the receipt of this telegraphic despatch, the marshal sent back the pardon, which was still in his hands, to the State Department, and the President afterwards signed an order stating that whereas the pardon had not been delivered to, and accepted by, De Puy, the same was revoked and withdrawn. De Puy petitioned for a writ of habeas corpus, directed to the warden of the penitentiary on Blackwell's Island, and at the hearing on the return of the writ before Mr. Justice Blatchford, the foregoing facts appeared.

After stating the facts in the case, the learned judge said,

"The main ground upon which the discharge of the petitioner is claimed is, that the pardon was delivered to the marshal, and, being delivered to the marshal, was delivered to the petitioner; that the proceedings which took place were of such a character that the pardon was irrevocable; that the President had no authority or power to control the disposition to be made of the original paper in the hands of the marshal; and that the petitioner was entitled to the benefit of it, as a complete and full pardon.

"I have given careful consideration to the questions raised in regard to this branch of the case, and have examined the authorities cited and the statutes bearing on the subject, and have come to a conclusion satisfactory to my own mind. The question is an important one— – a question of constitutional law, as to the proper construction of the powers of the President, under the Constitution, in regard to pardons, and a question involving personal liberty; and, for these reasons, and because I think it desirable that the true character of a pardon should be defined, I shall proceed to state, at considerable length, my views on the question, and the only question, which, it appears to me, is to be determined in this case; namely, whether this pardon was, or was not, actually delivered to the petitioner, in judgment of law.

"It is contended, on the part of the petitioner, that when this pardon received the signature of the President, and the seal of the Department of State, it was a completed act, and passed beyond the control of the President. I think that is an entire mistake. The law, undoubtedly, is, that when a pardon is complete, there is no power to revoke it, any more than there is power to revoke any other completed act. And yet the question still remains, — when is a pardon complete? It is argued, that a pardon stands on the same footing as a commission; and the doctrine of the case of Marbury v. Madison, 1 Cranch, 137, is invoked in support of this view. The opinion of the court, in the case of Marbury v. Madison, was delivered, in 1803, by Chief Justice Marshall, the same judge who, afterwards, in 1833, delivered the opinion of the same