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fee impose restraints upon alienation? Littleton, in highest legal authority, therefore, it may be affirmed section 360, states the doctrine upon this subject as that in a fee simple grant of land a condition that the follows: " If a feoffment be made upon the condition grantee shall not alien, or that he sball pay a sum of that the feoffer shall not alien the land to any one, this money to the grantor upon alienation, is void, upon condition is void: because when a man is enfeoffed of the ground that it is repugnant to the estate granted." lands or tenements, he bath power to alien them to In Bradley v. Bixote, 3 Ves. Jr., it is said: “I have any person by the law. For if such condition should looked into the cases that have been mentioned, and be good, then the condition should oust him of all find it laid down as a rule, long ago established, that the power which the law gives him, which should be where there is a gift with a condition inconsistent with against reason, and therefore such a condition is void.” and repugnant to such gift, the condition is wbolly Commenting upon this Lord Coke says: “Aud the like void. A condition that the tenant in fee shall not law is of a devise in fee, upon coudition that the devisee alien is repugnant." See, also, Brandon v. Robinson, shall not alien, the condition is void ; and so it is of a 18 Ves. Jr. 429; McCullough v. Gillmore, 11 Penn. grant, release, confirmation, or any other conveyance St. 370. whereby a fee simple doth pass. For it is absurd and In Walter v. Vincent, 18 Penn. St. 369, a testator derepugnant to reason that he that hath no possibility to vised to his daughter and to her legal heirs forever cerhave the land revert to him should restrain his feoffee tain real estate, with tho express consideration that she in fee simple of all power to alien. And so it is if a should “not alien or dispose of the same, or join with man be possessed of a lease for years, or of a horse, or her husband in any deed for the conveyance thereof any other chattel, real or personal, and give or sell his during her natural life.” The court held the considerawhole interest and property therein upon condition tion void, and that a feo simple estate was devised, and that the donee or vendee shall not alien tho same, the say: “It makes no difference that the testator has essame is void; because his whole interest and property pressly withheld one of the rights essential to a fes is out of bim, so as he hath no possibility of a revester, simple, for the law does not allow an estate to be and it is against trade and traffic, and bargaining and granted to a man and his heirs with a restraint on contracting between man and man; and it is within alienation, and frustrates the most clear intention to the reason of our author that it should ouster him of impose such a restraint; just as it allowed alienation all power given to him.” Coke Litt. 223a.
of an estate entail, though a contrary intent is mani. The case of Mandelbaum v. McDonnell, 29 Mich. 78, fest. And it would be exceedingly improper, in any contains a very elaborate and exhaustive consideration court, in construing a devise to a man and his heirs, to of this question. In that case a deviso for life was give effect to the restraint upon alienation by changing made to the widow of the testator, remainder in fee to the character of the estate to a lifo estate, with a his song and grandson, with a restriction upon aliena- remainder annexed to it, or with an executory devise tion during the life of the widow, if she remained un- over.” In Hall v. Tufts, 18 Pick. 455, testator devised married, and until the grandson, who was then four certain real estate “to his wife for her life, and tho years old, should attain the age of 25. The restriction remainder of the estate, whether real or personal, in upon the right of alienation was held void. In an- possession or reversion, to his five children, to be nouncing the opinion of the court, Christiancy, J., equally divided among them or their heirs, respectemploys this language: “If there is any English deci-ively; always intending and meaning that none of his sion since the statuto quia emptores, where the point children shall dispose of their part of the real estate in was involved in which it was held competent for a reversion before it is legally assigned to them." It feoffer, grantor or devisor of a vested estate in fee was held that the children took a vested remainder in simple, wbether in remainder or possession, by any the real estate given to the wife for her life, and that condition or restriction in the instrument creating it, tho clause restraining them from aliening the same to suspend all power of the feofee, grantee, or devisee, before the expiration of the life estate was void. otherwise competent to sell, for a single day, I have not The case of Blackstone Bank v. Davis, 21 Pick. 42. is been able to find it, and the able counsel for the defend- exactly in point. In that case one Davis devised to ants, whose research nothing of this kind is likely to his son the use of a farm of 120 acres, with a provision escape, seem to have been equally unsuccessful.” And that the land should not be subject or liable to converfurther: “We are entirely satisfied there has never ance or attachment. The plaintiffs recovered a judg. been a time since the statute quia emptores when a re- ment against tho devisee, and levied an execution upon striction in a conveyance of a vested estate, in fee the premises as upon land held by the defendant in fee. simple, in possession, or remainder, against selling for The court says: “By the devise of the profits, use, or a particular period of time, was valid by tho common occupation of the land, the land itself is derised. law, and we think it would be unwise and injurious to Whether the defendant took an estate in fee or for life admit into the law the principle contended for by the only is a question not material in the present case. defendant's counsel, that such restrictions should be The sole question is whether tho estate in his hands held valid if imposed only for a reasonable time." "It was liable to attachment, and to be taken in execution is safe to say that every estate depending upon such a as his property. Tho plaintiffs claim titlo under the question would, by the very fact of such a question ex- levy of an execution against the defendant, and their isting, lose a large share of its market value. Who can title is valid if the estate was liable to be so taken. say whether the time is reasonablo until the question That it was so liable, notwithstanding tho proviso or has been settled in the court of last resort? And upon condition in the will, the court caunot entertain a what standard of certainty can the court decide it? doubt." Or depending as it must upon all the peculiar facts and The appellant cites and relies solely upon Nichols 5. circumstances of each particular case, is the question Eaton, 91 U. S. 716. In that case the testator devised to be submitted to a jury? The only safe rule of de- her real estate to trustees upon trusts to pay the rents. cision is to hold, as I understand tho common law for profits, and interest to her four children, with a proviso ages to have been, that a condition or restriction which that if any of her sons should alienate or dispose of would suspend all power of alienation for a single day the income, or if by means of bankruptcy orinsolvency, is inconsistent with the estate granted, unreasonablo or any other means, said income could not be persodand void."
ally enjoyed by them respectively, but would become For another case containing a most exhaustive con- vested in or payable to some other person, then the sideration of this question, see De Peyster v. Michael, trust expressed in said will concerning so much thereof 6 N. Y. 467. In this case, after a very full review of as would so vest should immediately cease and deterthe authorities upon page 497, it is said: “Upon the mine. The case differs from the present one in two essential and controlling particulars—First, the estate same, when used as a place of sepulture, shall de ex. was devised to trustees and never vested in the bene- empt from taxation, excepting for State purposes, and ficiaries; second, the enjoyment of the benefits of the
no lot which may be purcbased as a place of sepulture, devise was made to depend upon a condition. We shall be subject to attachment or execution for any have no hesitancy in holding, in view of the authori- debt or debts of the owner thereof, provided, that the ties above quoted, and others that might be referred said exemption from attachment or execution shall to, that the conditions in this deed against alienage not extend to more than four lots as owned by any one and liability for debts are void.
individual.” On the line of Merion avenue, by which 2. It is insisted, however, that whatever view may
the cemetery is bounded on one side, all the lots have be taken of the foregoing question, still the demurrer been sold and mostly used for burial purposes. In should have been overruled, because the petition that avenue the corporate authorities of the city caused alleges that a part of the land was the homestead of a sewer to be constructed, and filed a lien for a prothe plaintiff and his family, and the execution and
portionate part of the cost thereof against the entire return notice of sale, and sheriff's certificate, all show
cemetery tract, including the lots that have been sold, that no part of the land was set apart to plaintiff as a and claim the right to enforce payment thereof by sale homestead, as by statute required, but that the whole of the land. The facts are fully presented in the case 130 acres were sold in a lump and bought by the defend- stated in the nature of a special verdict, and the quesant. It is insisted this renders the sale absolutely void tions of law involved submitted to the court below in under Linscott v. Lamart, 46 Iowa, 312, and White v. the following terms: “If the court shall be of opinion Rouly, id. 680. The petition, we think, does not base that under the said charter the lots purchased by the the plaintiff's right to relief upon the ground that a lot-holders for burial purposes and the lands of the portion of the premises was his homestead, and not set
cemetery company are subject to lien and sale under apart to him as prescribed in the statute. The petition the said lien, or that the lot-owners' consent, or notice does not allege that a portion of the land is plaiutiff's to them, was not necessary before filing the lien, then homestead, but incidentally it is alleged that he has judgment for the plaintiff; but if not, then judgment gone into possession of the whole real estate, and occu- for the defendant." The court entered judgment, on pied the same, which embraced 130 acres as his home- the case stated, in favor of the city. stead.
The main contention on the part of the cemetery It is not alleged when he took possession nor does it company is, that the assessment for construction of appear when the debt was contracted. For aught that the (sewer on Merion avenue is a species of taxation, the petition shows, the homestead was liable for this and clearly within the letter as well as the spirit of the debt. No complaint was made in the petition that it exemption contained in the charter. The exemption was not set off to the plaintiff, nor that the other prop- is “from taxation, excepting for State purposes.” The erty was not first exhausted. The ground upon which obvious meaning of this is, that the Commonwealth relief is asked, is that the plaintiff owned no interest releases in favor of the cemetery company her right to in the land subject to execution. The demurrer was tax its lands when used as a place of sepulture, in any properly sustained.
form or for any purpose of a local nature, as distinInasmuch as the defendant offered to release from
guished from general State purposes, reserving to herthe operation of the sheriff's sale the homestead of the self the right of taxation for the latter purposes only. plaintiffs, they may, if they are so advised, have a
The exemption is general, and embraces every species decree granting them that relief.
of taxation not specially excepted; and the rule is well Affirmed.
settled that an exception in a statute excludes all other
exceptions. Miller v. Kirkpatrick, 5 Casey, 226. It is EXEMPTION OF CEMETERIES FROM TAXA- not pretended that municipal assessments for conTION- ASSESSMENT FOR LOCAL
structing sewers, etc., are within the aocepted meaning IMPROVEMENT.
of taxation for State purposes; on the contrary, it is contended by the city, that they do not come under
the head of taxation at all. It is conceded, however, PENNSYLVANIA SUPREME COURT, MAY 3, 1880.
that the authority to make and collect such assess
ments is delegated by the Commonwealth. If it does OLIVE CEMETERY COMPANY, Plaintiff in Error, v.
not emanate from the inherent power of the governCITY OF PHILADELPHIA.
ment to levy and collect taxes, it is difficult to under
stand whence it comes. The only warrant for delegatA statute provided that land occupied as a cemetery, when
used as a place of sepulture, shall “be exempt from ing such authority must be either in the right of taxation excepting for State purposes," held, to exempt
eminent domain or in the taxing power. It cannot be such land from an assessment for constructing a sewer. found in the former, and hence it must be in the
Taxation is an exercise of the inherent power of as
government to compel contributions from persons and below, the Cemetery Company, when purchased as lots
property for public purposes, either of a general or for burial purposes, were subject to assessment for a
local nature. For general or State purposes the power sewer. The facts appear in the opinion.
of taxation has usually been exercised directly by the B. H. Brewster and John A. Burton, for plaintiff in
government, while for local objects it has generally error.
been delegated to and exercised by the municipal sub
divisions of the State. The history and growth of Henry C. Terry, for defendant in error.
this delegated power are traced in Washington avenue, STERRETT, J. The Olive Cemetery Company was 19 P. F. Smith, 352. It is there said that the practice incorporated by act of February 5, 1849, for the pur- of municipal taxation by counties, turnpikes, cities pose of establishing and maintaining a cemetery on a and boroughs for local objects had its origin in necescertain tract of land, situated on the north side of sity and convenience. Hence, roads, bridges, culverts, Lancaster avenue, in the county, now city, of Phila- sewers, pavements, school-houses, and like local im. delphia, containing about ten acres and twenty-two provements, are best made through the municipal perches. The third section of the act declares: “That divisions of the State, and paid for by local taxation. Do street, lane or road shall hereafter be opened through “These have always been supported as a proper exerthe said tract, occupied as a cemetery, without the cise of the taxing power. * * In cities and towns consent of the majority of the lot-holders, and the where the population was dense, the authorities began
CASE stated for
the purpose of obtaining the decision
to make improvements of special advantage to certain | 4 Zabr. 385; Northern Lib. v. St. John's Ch., 13 of the citizens at their expense. * * * So far public Penn. St. ; Canal Trustees v. City of Chicago, 12 II. opinion and long-continued legislativo practice have 403; Mayor of Baltimore v. Proprietors, etc., 7 Md.517; sustained local taxation with great unanimity, and Lefever v. Mayor, etc., 2 Mich. 586. — [ED. ALB. L. J. this is strong evidence of the true interpretation of tho constitutional power of the Legislature to author
DISBARMENT OF ATTORNEY - WHAT WILL ize municipal taxation of this sort.” In McMasters v. Commonwealth, 3 Watts, 293, a new phase of taxation
AUTHORIZE- EVIDENCE - APPEAL was presented in the assessment of one person's prop
FROM DISCRETIONARY ORDER. erty to pay compensation awarded to another whose property had been taken for a public use under the NEW YORK COURT OF APPEALS, SEPT. 28, 1880. power of eminent domain, but it was sustained as a proper application of that principle of local taxation
IN RE ELDREDGE. which authorizes the 'assessment of property specially benefited by a local improvement of a public nature,
The orders not reviewable in the Court of Appeals on the for the purpose of defraying the expense thereof. The
ground that they are discretionary, are those addressed
to the favor of the court and to which the applicant admitted authority of the Legislature to confer upon
has no absolute right, which may or may not be granted municipal corporations the power of assessing the cost
without wrong on either hand. of local improvements on properties benefited is re- There is a distinction between proceedings for contempt cognized in Hammett v. Philadelphia, 15 P. F. Smith, occurring in the presence of the judge and the facts 164, as "a species of taxation, not the taking of private constituting which are certified by him, and cases of property by virtue of eminent domain.”
professional misconduct out of the presence of the We have thus referred to these cases not for the pur
court. In the former it is held that the facts embodied pose of vindicating the right of the Legislature to
in the order of the judge must be taken as true, in the
latter the right of review is asserted not only where authorize assessinents in various forms for local im
there has been a want of jurisdiction, but also where provements, but to show that they are regarded as a the court below had decided erroneously on the testispecies of taxation; that it is only on the principle of mony. taxation that they are sustained. The cases of North-In proceedings to disbar an attorney where the charges are ern Liberlies v. Church, 1 Harris, 104; Pray v. Northern denied, the common-law rules oí evidence apply. The Liberties, 7 Casey, 69; and Borough of Greensburg v.
accused is not to be tried upon affidavits, but is entitled Young, 3 P. F. Smith, 284, have been cited as authority
to confront the witnesses and subject them to cross
examination and to invoke the well-settled rules of evifor the position that assessments for local improve
dence. ments are not taxes. What is said in Washington
An attorney in proceedings for the probate of a will, who Avenue, supra, in regard to two of these cases is
had taken out a commission for the examination of a equally applicable to the other, viz., the court did not witness, prepared answers for such witness to the intermean to decide that such an assessment is not taxation rogatories and cross-interrogatories, furnished them to within the general legislative power to tax. Had it
the witness who had received various sums of money been meant to say that such an assessment is not taxa
from him, read a part of the answers to the commis. tion at all, it would in effect deny the power of the
sioner and left the rest for the witness to repeat, and
thus got the answers before the surrogate as honest Legislature to authorize the assessment - a power
testimony. Held, sufficient to authorize an order diswhich was affirmed in all these cases. It follows
barring the attorney even though the answers were not from what has been said that the claim of the city is a shown to be false, and it appeared that the attorney species of taxation for local and not State purposes, believed them to be true. based solely on the taxing power delegated by the State, and inasmuch as the charter of the company expressly | APPEAL. from an order disbarring appellant from exempts its land from such taxation, the lien is invalid,
practice as an attorney and counsellor at law. and the plaintiff in error is entitled to judgment. If The facts appear in the opinion. it were at all necessary, it would be an easy task to FINCH, J. The questions raised on this appeal inshow the wisdom and propriety of exempting such volve the professional character of a member of the property as that of the plaintiff in error from local bar, and the propriety of the decision of the General taxation, but nothing of that kind is required. It is Term which has suspended him from the office and sufficient to know that the Legislature in creating the the duties of an attorney for three years. While the corporation exempted its property from such taxation. discipline may seem light, it is yet severe, for it is the It is unnecessary to consider other minor points in- public and grave conclusion of the court, deliberately volved in tbe case stated.
spread upon the record, that the appellant has been į Judgment reversed and set aside, and judgment is guilty of conduct uubecoming his profession, and denow entered ou the case stated in favor of the defend- serving judicial censure. The struggle to reverse this ant below.
determination and defend the reputation assailed,
awakens our sympathy and demands of us patient care NOTE. – In Buffalo City Cemetery v. City of Buffalo, and consideration to prevent even a trace of injustice: 46 N. Y. 506, a conclusion apparently the reverse of while, at the same time, our duty to an honorable prothe above was reached by the New York Court of Ap- fession, the need of preserving unsullied that high peals. Under a statute exempting the lands of ceme- standard of trath and purity by which alone an office tery associations from “all public taxes, rates and of justice should be measured, demands of us a cold aesessments,” it was held that the exemption did not and deliberate scrutiny, and firmness in declaring its apply to an assessment to defray the expense of a side- result. We have therefore examined minutely all the walk constructed upon a street running alongside the voluminous papers submitted on the argument, and lands of such an association. The court say that pub-considered carefully the able discussion at the bar, and lic taxes are exactions toward the expense of carrying the fullfand thoroughly prepared briefs of the respecton the government, but those charges laid upon prop-ive counsel, desiring to omit no labor necessary to a erty in a circumscribed locality, to effect a work of correct conclusion. local convenience, which results in peculiar advantage A preliminary question needs to be considered. It to the property assessed, are not public but local and is insisted that the order of the General Term is not private, so far as the statute was concerned. See Peo- appealable, because resting in discretion; and that ple v. Mayor of New York, 4 N. Y. 419; Fairfield v. when no legal question is involved, no dispute as to Ratcliff, 20 Iowa, 398; City of Paterson v. Society, etc., 1 jurisdiction or authority, the conclusion of the Supreme
Court upon the facts is final and not subject to review. of holding that upon the trial of issues involving proWe do not so understand the authorities to which we fessional misconduct and the right of an attorney to are referred. Matter of Gale, 75 N. Y. 5:26; Matter of retain his office and its privileges, the common-law Percy, 36 id. 651; Matter of Kelly, 59 id. 595. While in rules of evidence may be disregarded. We should be one, at least, of these cases, language is used sus- slow to follow such an authority if it existed. The ceptible of the interpretation claimed, the fact remains issue is vital to the party assailed. An adverse decision that this court did review upon the merits, in at least dooms him always to disgrace, and often to poverty two of the cases, the action of the Supreme Court, and and want. His professional life is full of adversaries. consider and discuss the proofs upon which that action Always in front of him there is an antagonist -somewas founded. While the measure of punishment con- times angry and occasionally bitter and venomous. sequent upon a conclusion of guilt may fairly be said His duties are delicate and responsible, and easily subto be within the discretion of the immediate tribunal, jest to misconstruction. To say that when he denies the conclusion itself — the adjudication of guilt or in- | the charges brought against him he may be tried withnocence upon the facts — is not so far the subject of out the rights and the safeguards which belong to the discretion as to be beyond review. The class of orders humblest criminal, would be to adopt a dangerous rule, not reviewable for that reason are substantially those and one without reason or justification. The question addressed to the favor of the court, to which the ap- is important, and it is best that we decide it. On the plicant has no absolute right, which may or may not application addressed in the first instance to the court be granted without wrong on either hand. The order as the mode of arousing its attention and setting it in question is not of that character. The guilt or inno- in motion, affidavits, minutes of testimony – any thing cence of this appellant does not rest in the absolute which furnishes needful information - may be used as discretion of any court. An acquittal is his right if the basis upon which to found an order to show cause. upou the facts he is not shown to be guilty, and we Upon the return of that order the accused is heard. cannot evade or avoid the inquiry. The cases in the He may confess; he may explain; he may deny. If Supreme Court of the United States cited as holding he confess, the court may at once render its judgment; the contrary, we think, are misapplied. Ex parte if he explain, the court may deem the explanation Bradley, 7 Wall. 365; Bradley v. Fisher, 13 id. 336; sufficient or the reverse; but if he meets the accusation Bradwell v. The State, 16 id. 130; E.c parte Robinson, 19 with denial, the issue thus raised is to be tried, sumid. 511; E.x parte Burr, 9 Wheat. 530. A plain line of marily, it is true, by the court itself or by a referee, distinction is drawn between proceedings for a con- but nevertheless to be tried, and on that trial the actempt occurring in the presence of the judge and the onsed is not to be buried under affidavits or swamped facts constituting which are certified by him, and cases with hearsay, but is entitled to confront the witnesses, of professional misconduct out of the immediate to subject them to cross-examination and to invoke the presence of the court, where the actual truth is matter protection of wise and settled rules of evidence. In of evidence. In the former class of cases it is held adopting this conclusion we only secure to the memthat the facts embodied in the order of the judge must bers of the bar the common rights and ordinary privibe taken as true; in the latter the right of review is leges of the citizen. asserted, not only where there had been want of juris- It remains to consider whether the evidence addiction, but also where the court below “had decided duced before the referee justified the decision which erroneously on the testimony.” Its discretion is pro- suspended this appellant from the practice of his pronounced not uplimited; it must be a “sound discre- fession. A portion of the charges against him were tion;" and while not to be overruled in cases of doubt, very grave. They were nothing less than perjury and is yet the subject of review.
subornation of perjury. A will of his wife's father As we approach the facts of the case at bar another had practically disinherited her; no fault or misconpreliminary question is to be considered, raised this duct of hers explained or palliated the act, and it could time on behalf of the appellant. He insists that the only be accounted for by the testator's anger against affidavits and papers upon which was founded the her husband, or the persistent and paramount influorder to show cause, and which were transmitted to ence of the other children and those connected with the referee appointed to determine the issues raised, them. On this latter ground the appellant, in the were not evidence upon those issues, and could have no name of his wife, and acting at first as her proctor and other proper office or effect than that of pleadings or all the time as her counsel, resisted the probate of the statements of the charges or accusations relied upon. will. Upon the hearing he introduced in evidence the In reply the broad doctrive is asserted that these affi- testimony of three witnesses - Andies, Wheeler and davits were evidence; that the common-law rules did Mason — taken out of the State and by commission. not apply to the proceeding; that every thing was ad- The answers they gave were very minute in their demissible, and its effect only the subject of considera- tails aud unusually long and full, and tending to show tion. The language of a previous decision of this undue influence operating upon the mind of the tescourt, that "the common-law rules of evidence do not tator and producing the result accomplished by the apply to proceedings of tbis character” was pressed will. At the conclusion of the hearing probate was upon our attention. In re Percy, 36 N. Y. 651. The refused by the surrogate. In his opinion, he gives very doctrine in that case was correct to the extent of its slight weight to the evidence taken by commission, application. It related only to the kind and character and rests his conclusion mainly upon the other eviof evidence presented to the court for the purpose of dence in the case. Not long after, the defeated parties originating its action. For that purpose affidavits opened a new attack. They presented to the surrogate were properly held sufficient, and also the verified a mass of affidavits, which in their printed form make minutes of a trial at the Circuit. And it was only with a book of 285 pages, tending to show that the evidence reference to this preliminary step- the evidence.neces- taken on commission was false and a fraud upon the sary to justify action by the court — that the language surrogate, and that the husband and proctor of the cited was used. The opinion in that case goes on to contestant was the author and contriver of the wrong. declare that "the court may and ought to cause the Upon these affidavits the surrogate made an order on charges to be preferred, whenever satisfied, from what the 11th of March, requiring the contestants to show has occurred in its presence, or from any satisfactory cause before him, on the 29th of March, why the deproof, that a case exists where the public good and cree rejecting the will should not be opened and vaends of justice call for it. Upon the return of the cated, and the evidence taken on commission stricken order the court proceeded properly to investigate the out and expunged, on the ground that it was procured charges." The decision, therefore, falls very far short 1 by fraud, perjury and subornation of perjury. _Eldridge and his wife seem to have been stunned by the rogatories, and eighteen pages of answers to crosssuddenness and magnitude of the attack, which was interrogatories, furnishes them to the witness who has largely based upon affidavits of Andies and Wheeler, already drawn upon him for various sums of money, confessing with shameless effrontery their own perjury reads a part of the answers to the commissioner, and and wickedness, and pointing to Eldridgo as the active leaves the rest for the witness to repeat, and so practicause, and upon circumstances tending to show that cally puts his own words, his own ideas, his own facts, the witness Mason was a myth, and was personified into Wheeler's mouth, and gets them before the surrobefore the commissioner by one Byrnes. A settlement gate disguised as honest testimony. Such conduct is of the controversy over the will followed, apparently inexcusable. The coloring sought to be given it by arranged by counsel, in which Eldridge took no part, Eldridge—that he merely meant to refresh the memory except that of silence, through which the decree re- of the witness — is not justified by the facts. He furjecting the will was vacated without opposition, the nished answers, not notes. He controlled and masevidence taken on commission stricken from the re
tered the memory of the witness; not merely refreshed cord, the will admitted to probate, and soon after a it. The wituess did not answer at all. Eldridge anprovision made for the contestant in excess of the tes- swered for him. We get neither the language nor the tator's bequest, and to some extent recognizing her memory of the witness; we get only that of his teacher. equitable claims. This peaceful settlement, however, Practically the examination was merely an affidavit was soon followed by the presentation of the affidavits
drawn by Eldridge and sworn to by Wheeler. In its and papers used before the surrogate to the General
true character it was not admissible before the surroTerm, which, after notice to Eldridge and considera
gate. When, therefore, it was disguised in the shape tion of his answer denying the charges, sent the case
of testimony and the form of an examination, and so to a referee. The latter held, and the majority of the received into the case, a fraud was committed on the General Term concur, that the charges of perjury aud surrogate, and the author of it was Eldridge. Grant subornation of perjury, and that of imposing a false that the answers are not shown to be false, and that witness as being Peter Mason upon the commissioner, Eldridge believed them to be true; yet he corrupts were not established. That conclusion it is not neces
justice at the fountain by dictating the evidence of sary to disturb. But the referee finds, and the Gene- the witness. Upon the trial of an issue in open court ral Term concur, that, in respect to the deposition of
a question merely leading is excluded. The law so Wheeler, the conduct of the appellant was such as carefully guards the independent and unwarped testijustly to deserve the censure and discipline of the
mony of a witness that it will not permit, even by the court. The facts in this respect do not depend upon form of a question, the suggestion of its answer. Yet affidavits, or evidence of a character open to criticism.
here the answers to thirty-three direct interrogatories They rest mainly upon the admissions of Eldridge and forty-one cross-interrogatories are actually writhimself. Regarding the affidavits presented to the
ten out by the attorney for the use of the witness, and court substantially as a pleading, they nevertheless con
so imported into the case. stituted an accusation which called upon Eldridge for It is intimated on his behalf that he did not go bean answer. Upon the admissions of that answer the
yond the custom of the bar. He may have thought so, case against him stands. Wheeler alleges in his affi- but is most certainly mistaken. If that were true, it davit that Eldridge wrote out in detail answers to be
would only make our duty all the more imperative. given by the witness to the interrogatories and cross- While a discreet and prudent attorney may very propinterrogatories of the commission; that when the de
erly ascertain from witnesses in advance of the trial position was taken Eldridge was personally present what they in fact do know, and the extent and limitaand himself read to the commissioner the answers he tions of their memory, as a guide to his own examinahad prepared, and then left with the witness, written
tions, he has no right, legal or moral, to go further. out in full, the answers to the cross-interrogatories, His duty is to extract the facts from the witness, not which the latter read from the memorandum to the
to pour them into him; to learn what the witness does commissioner. Wheeler further charges that his tes
know, not to teach him what he ought to know. It is timony was both preceded and followed by payments impossible, too, in this case, not to feel the force of of money by Eldridge, and produces his letters sug- other admitted facts. The payments of money by gesting a destruction of their correspondence, and Eldridge to Wheeler, if not bribes, approach seriously begging for a return of the memoranda used at the
near to the line. He himself repudiating such purtaking of the deposition. Such original memoranda,
pose, seems fearful of that construction. His anxiety alleged to be in the handwriting of copyists employed to get back his memoranda, and to have his correby Eldridge, were attached to Wheeler's affidavit. In spondence destroyed, indicate his own inner conscioushis answer Eldridge admits that he furnished the
ness of conduct open to suspicion. It is impossible not memoranda for the deposition. He does not deny the
to feel sympathy for him in his struggle, and yet our authenticity of the prepared answers produced by plain duty is to shrink from no conclusion which the Wheeler. He admits, and to some extent palliates purity and integrity of the profession demands. and excuses the payments of money. He does not
The order of the General Term should be affirmed. dispute the correspondence produced. He does not deny reading the answers for Wheeler to the commissioner in Philadelphia, and leaving those framed for
WHO ARE SECOND COUSINS? the cross-interrogatories to be read by the witness.
ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIHis explanations of these things do not satisfy us. The
VISION, JUNE 14, 1880. memorandum made by Eldridge and produced by Wheeler, of answers to cross-interrogatories is a very
RE PARKER; BENTHAM V. WILSON, 43 L. T. Rep. long and carefully prepared document. It occupies in print about eighteen compact pages. On comparing it
(N. S. ) 115. with the deposition read before the surrogate, it A testator gave one-third of his residuary personal estate found to be absolutely identical. Laying aside then
to his first cousins, and two-thirds to his second cousins. all questions of the truth or falsity of the answers,
Held, that by “second cousins" was meant the coldiscarding every thing dependent upon Wheeler alone
lateral descendants from a common great-grandfather, as unworthy of credit, the fact yet remains that an
and did not include first cousins once removed. attorney of the court having taken out a commission MHIS was an action for the administration of the for the examination of a witness, writes out what estate of John Parker, deceased, who died on the when printed are twenty-six pages of answers to inter- | 13th Feb. 1878, having made his will dated the 28th