his honor, "I decide nothing except that I decline to interfere in this case." The next day the point had to be brought before Barnard. The final stamp of disrepute - the single, ludicrously ineffaceable one, which could be put upon these proceedings was, however, yet in store for them. They received it upon the 21st of April, and thenceforth became unique. It was reported as follows in the papers of the 22d:

“An application was made to Judge McCunn, in the Superior Court, for a writ of habeas corpus to bring up William Belden, whose commitment on six distinct charges of contempt for refusing to answer questions before Judge Barnard, on the Erie litigation, has been noticed in the papers. Judge McCunn refused to grant the writ, stating that he did not wish to have his court to have any thing to do with the scandal.

"Counsel called the judge's attention to the fact, that he was liable to a fine of $1,000 for refusing to grant the writ; to which the judge responded that he would take the responsibility."

These proceedings, however, sprang out of the contempt cases, so-called, and did not belong to the Erie litigation, properly speaking. They were merely a sort of incidental free fight. The event last related in the war of the injunctions was the vacating by Judge Barnard of the order of Judge Clerke, on the 19th of March. A lull followed this proceeding. There seemed to be a general impression that things were getting to extremities, and the parties paused. At length, upon the 27th, there was issued the tenth and, practically, the last of this extraordinary series of injunctions. It proceeded from Judge Ingraham, a colleague of Judge Barnard, and was based upon certain affidavits of counsel and a phonographic report of the proceedings before Barnard. By virtue of it, Mr. Osgood was enjoined from acting as receiver; and proceedings were temporarily stayed until a decision was reached at general sessions upon the appeal taken from the order of March 19th. This appeal was argued on the 8th and 9th of April; when at last, at some time in May, a decision was rendered, dismissing certain appeals and sustaining others, deciding the appointment of Mr. Osgood to have been wholly irregular, and consequently setting it aside, and yet as a whole leaving the Vanderbilt party nominally masters of the position; already the great Erie Railroad row had become a stale excitement of the past; the railroad kings had met, and effected a peace; the legislators of two States had been

bought and sold; Mr. Drew had returned from his exile; the overissue of bonds had been legalized; and it had become a matter of supreme indifference to all concerned whether Mr. Osgood or any one or no one else was decided to be receiver; whether the appeals were sustained or dismissed, or whether the contempt cases and habeas corpus cases, the motions, the injunctions, and the myriad legal ramifications of this costly scandal to the law, were buried out of sight at once, or slept undisturbed among the records of the courts. All this tremendous machinery had been set in motion, and not even a fly had been crushed. Money had been poured out like water. Money for fees, money for bribes, money "to make things pleasant." When Mr. George A. Osgood ceased to be receiver, Mr. Peter B. Sweeney was appointed. That the conflict was over, was as evident as it was that there was nothing to receive, nor ever had been any thing; yet, on the principle that the amount of the remuneration paid must be inversely to that of the services rendered, no high-toned court could have disallowed a bagatelle of $150,000 or so, as receivers' fees, if such a sum were demanded. At any rate, there was money for all; and the days of peace had returned. The counsel pocketed their perquisites; the contumacious directors walked undisturbed in Wall Street; Drew and Vanderbilt, as with one voice, exclaimed, "To-morrow to fresh woods and pastures new;" Judge Barnard administered to all comers the same dignified and impartial justice as before; and the great Erie Railroad cases were postponed and postponed, until the proper day arrived, when, incontinently and silently, they were hustled out of court.

Though this outrageous parody of law and litigation came to no result, it is not well that it should be wholly forgotten. Throughout these proceedings there was one thing painfully evident: there were always before the court powers greater than the court itself. The magnates of Wall Street and the great corporations of New York treated the law and the judge with equal contempt. In obtaining the injunction from Judge Gilbert, on such allegations as were then made and were never sought to be sustained, and by issuing, in direct violation of another injunction, the ten million of unauthorized bonds, Mr. Daniel Drew was guilty of as flagrant contempt of court, both directly and indirectly, as was ever committed. In this case, Judge Barnard had more than his own fair

fame to sustain he was bound to sustain the character and dignity of the law and judiciary of New York. By fleeing to Jersey City, Mr. Drew placed himself wholly in the power of the court. Had Barnard been fit to sit upon the bench; had he possessed but an elementary appreciation of the responsibilities of his high office, even though he disregarded his own individual honor, he would have laid Drew by the heels within the four walls of a prison as sure as he ever again set foot within his jurisdiction. That this was not done need not be said. Nothing was done. A little additional infamy, a little additional evidence of public contempt, is a small matter now to the judiciary of New York City. Other communities, where the judiciary have been more fortunate, may draw a useful lesson from their fate. The judiciary, like the executive and legislative branches of a government, can only in the long-run reflect, more or less nearly, the average moral and intellectual condition existing somewhere in a community. A community inherently corrupt will not in any event long preserve a pure judiciary. That branch of the public service however, more than either the legislative or the executive, can be made to represent the better, more intelligent, and more virtuous elements of the community: it can, by a proper machinery of selection, be kept on the highest possible level of intellectual and moral development. It can also, by other machinery, be reduced to the lowest level. The experience of this and other countries has thrown much light on this subject. Chancellor Kent once filled the chair now occupied by Mr. Justice Barnard. Since the days of the great chancellor, the ermine worn by him has been flung into the kennel, to be snatched at and trampled on by the rabble of the caucus and the bar-room. Behold the result! The machinery now in use in New York is wholly calculated to draw the material out of which to manufacture its judiciary from the worst instead of the best materials the community affords: it is calculated to degrade, not to elevate. That responsibility for appointment which should rest upon one man, is divided and lost among the many. Even if it were not, and even though a party caucus of professional politicians were as competent to select a judge as a responsible executive, yet who could aspire to great judicial eminence as the result of a popular election to a term of eight years on the New York bench? The system provides an inferior material, and then deprives it of its greatest incentive to improvement. Finally, who

that respects himself, as a great judge' should and as all great judges ever have, could periodically tread the miry ways of city politics, to elevate himself to a bench which has become a recognized part of the spoils of political victory? The system has everywhere produced its fruits, as bitter as they are legitimate. A judiciary appointed by the executive, and holding its office during good behavior, has given us such names as Marshall and Story and Kent and Gibson and Shaw and all that long, proud, legal record which those names recall of the earlier and better days of American law the judiciary elected by popular vote and for limited terms has ennobled our history with no names which posterity will not willingly let die, and has disgraced us with such proceedings as these just recorded.

DIGEST OF THE ENGLISH LAW REPORTS FOR MAY, JUNE, AND JULY, 1868.

ACCOUNT.

Plaintiff agreed to act as defendant's manager, receiving 7 per cent per annum of the profits of the business, to be made up to £500 in any year in which the said share of profits should be less than that sum. The works were valued at the same time. Six years later the defendant sold them at a gain of £47,916. In taking the account, under the above agreement, held, that the defendant was not entitled to charge interest on his capital, nor interest on old debts, nor the £500 guaranteed to the plaintiffs in the profit and loss account. That he might charge them the depreciation, from the waste of machinery and running out of his lease, calculated on the valuation of the works. That the plaintiff could not charge 7 per cent on the gain at which the works were sold as profits of that year. - Rishton v. Grissell, Law Rep. 5 Eq. 326.

See EQUITY PLEADING AND PRACTICE, 1; LUNATIC; PATENT, 1.

ADEMPTION.

A testator bequeathed the income of certain shares specifically, and bequeathed the shares to his residuary legatee. After the date of his will, he was found a lunatic; and, by an order in lunacy, the shares were directed to be sold, and the proceeds were invested in consols. There was no order as to the ownership of the proceeds. Held, that the sale was a conversion, and adeemed the legacy of income which fell into the residue. -Jones v. Green, Law Rep. 5 Eq. 555.

ADMINISTRATION.

1. A testator died domiciled in New South Wales, and the court there granted probate of his will to A. as executrix, according to the tenor. A. was not so by the law of England. Held, that the grant of the court of the domicile ought to be followed. Administration with the will annexed was granted to A., not as executrix, but, under St. 20 & 21 Vict. c. 77, § 73, to her as the person entitled to administer under the grant of the court of the country of domicile. In the Goods of Earl, Law Rep. 1 P. & D. 450.

2. A. was appointed executor, and "in case of his absence on foreign duty," B. was made executrix. A. was in England at the death of testator, but was absent on foreign service in the royal navy when probate was applied for, and was likely to be absent for some years. Probate was granted to B. — In the Goods of Langford, Law Rep. 1 P. & D. 458.

See BANKER; ESTOPPEL; EXONERATION.

ADMIRALTY.

The plaintiff, a British subject, shipped as mate on board a Portuguese vessel, and signed an agreement to be bound by the Commercial Code of Portugal,