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apply to other cases; that though the demurrer suggested would be a more reasonable course to adopt, the law is that the objection may be raised after verdict, and that a public nuisance is no exception to the general rule requiring the words which constitute the offense to be set out. We think that the decision of the Court of Appeal is | the correct one. And it might be said, in answer to the reason given in the American cases cited, that the purity of the records of the court ought not to stand in the way of giving a person charged with an offense like the one here charged an opportunity of knowing what is alleged against him with certainty, which he cannot have in case the indecent words are not set out.

The Supreme Court of Illinois, in the case of Safford v. People, decided on the 7th of June last, and to appear in the 85th Illinois Reports, passed upon a novel question in the law relating to receivers. In this case an injunction was granted by a State court and served on a railway company, restraining it and its servants from obstructing a public avenue in a city, with its trains. Thereafter a receiver of the company was appointed by a Federal court in a proceeding instituted therein. The Illinois court decided that the injunction was binding on the receiver, and that he would be punishable for contempt in disobeying the mandate of the writ. The court held that a receiver of a railway company, appointed to manage its business, is legally the agent of the company, though under the direction of the court appointing him, and that such court in making the appointment has no power to enlarge or restrict the corporate powers conferred on the corporation by its charter; that the receiver is bound by the charter to the same extent that the directors of the company are, and that, if the company is under a legal obligation to do or not to do a certain act, the same obligation will devolve upon the receiver. To the same effect, see St. Joe, etc., R. R. Co. v. Smith, 16 Alb. L. J. 408. These conclusions are so sensible and well put that they will receive general approval. A receiver has, by virtue of his position, no greater rights than the person whose place he takes, and if he undertakes to exercise other rights the official position he holds does not shield him.


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that the defendant is bound to establish the defense beyond a reasonable doubt, and by the same measure of proof that would be necessary to convict the plaintiff if he was on trial upon an indictment charging that offense, is erroneous. This ruling is contrary to the doctrine of Thurtell v. Beaumont, 1 Bing. 339, which holds that the defense that the plaintiff had willfully set firo to the premises must be as fully and satisfactorily proved as if the plaintiff were on trial on indictment. Thurtell v. Beaumont is followed by Greenleaf (2 Greenl. Ev. 418), and by Taylor (1 Taylor's Ev., 5th Ed., 97 a.), though it never received approval in the English courts. In many American courts the doctrine has been repudiated and that of the principal case followed. See Ellis v. Buzzell, 60 Me. 209; Blaeser v. Milwaukee, etc., 37 Wis. 31; Elliott v. Van Buren, 33 Mich. 99; Jones v. Greaves, 26 Ohio St. 2; Knowles v. Scribner, 57 Me. 497; Scott v. Home Ins. Co., 1 Dillon's C. C. 105; Huchberger v. Merchants' Fire Ins. Co., 4 Bissel's C. C. 265; Washington Ins. Co. v. Wilson, 7 Wis. 169; Blaeser v. M.

M. M. Ins. Co., 37 id. 31; Rothschilds v. Amer.
Cent. Ins. Co., 62 Mo. 356; Etna Ins. Co. v. John-
son, 11 Bush, 587; Hoffman v. W. M. & F. Ins. Co.,
1 La. Ann. 216; Wightman v. Same, 8 Rob. 442. A
like doctrine has been adopted in reference to other
subjects. In Gordon v. Palmer, 15 Gray, 413, it was
held that, in an action on a promissory note, the
defense that the note was obtained by false and
fraudulent representations might be sustained by a
preponderance of evidence, as in other civil cases,

and that it was not incumbent on the defendant
to establish it by proof beyond a reasonable
doubt, although the defense was based on a
fraudulent representation, such as
charge of
might be the subject of a criminal prosecution.
In Bradish v. Bliss, 35 Vt. 326, the action was
in trespass for burning the plaintiff's building,
and the evidence shows that the defendant, if
guilty of trespass, had set fire to the building de-
signedly, and was guilty of the crime of arson.
The court, nevertheless, held that, it being a civil
cause, the issue must be determined by the fair pre-
A similar decision was
ponderance of evidence.
made in Munson v. Atwood, 30 Conn. 102, which was
an action on a statute which gave the right to re-
cover the treble value of property feloniously taken,
In an action of trover, where the evidence was
such as to involve a charge of larceny, a direction
to the jury that the evidence, to justify a verdict
against the defendant, must satisfy them of the

N Kane v. Hibernia Ins. Co., 10 Vroom, 697, the truth of the charge beyond a reasonable doubt, was

IN Kant v; Enors and Appeals, of New Jersey,

held to be erroneous. Bissel v. Wert, 35 Ind. 54. See, also, G. W. Railway Co. v. Rimell, 18 C. B. 575; Metcalf v. L. & B. & S. C. R. Co., 4 C. B. (N. S.) 207; Vaughton v. L. & N. W. R. Co., L. R., 9 Exch. 93; McQueen v. G. W. R. Co., L. R., 10 Q.

decides that in an action on a policy of insurance
against loss by fire, where the defense is that the
property insured was willfully burned by the assured,
the rule in civil, and not in criminal cases, as to the
quantum of proof, applies, and a charge to the jury | B. 569.



- quite sufficient to have led captive any other disciple left him to the free use and development of the style that came to him as a natural gift and was

N seeking to illustrate somewhat the less obvious best adapted to his genius. Hence it is that a

IN seeking to illustrate somewhat the character, we

shall refer to his attitude in respect to some of the subjects to which he gave attention. The reader may thus be brought into nearer relations with him, and have a clearer conception of the spirit which inspired the lessons he taught. In the record Mr. Choate has left, we can clearly discern his love of nature and of all that is good and true and beautiful, the sagacity and prudence that guided him in his public services, and the tenderness and cheerfulness that made his home-life as a perpetual summer. If, without such aid, his opinions, the part he took at the bar, in politics and legislation, could be stated without blur or distortion, he would still seem remote if not inaccessible; the character imposing, but the subtle aroma that sweetened the life would elude the apprehension. It would be as when we survey the range of hills, but do not find the secret springs that nurse and beautify the valley below, or draw the landscape with correct detail, yet give no hint of the blending lights and shadows that should qualify the picture.

In previous papers we have referred to Mr. Choate's attention to the choice of words, and to his study of the great masters of eloquence. We have, also, casually referred to his style, and only advert to it now, because the quotations to be made may seem to invite attention to the subject. The reader will notice a marked distinction between his style in speaking and in writing. In his addresses he was copious, reiterative, and much given to illustrations helpful to the argument; as a writer, his style was terse, simple and severe. In neither did he check the onward flow of discussion to crown his thoughts with flowers; his most brilliant imagery does not seem to have been used as mere embellishment, but came to his aid as naturally as the more simple forms of expression. The visions of beauty in his mind became articulate in those forms, and the musical tone and cadence could no more be imitated than could the melody of the murmuring stream. The reader will also notice that his language, when rising to the fervor of tropical heat, was tempered by an earnest and constant attention to practical affairs. Thus did it seem to us when we listened to him, or rather, tried to study him, in two great cases in which his arguments were continued for several days.

With an additional observation, we leave what was special in Mr. Choate's language and style to the attention of a friend distinguished for his learning and judgment. We have, then, simply to add that Mr. Choate's devoted study of the great masters of speech, in other languages and in our own

wholesome relation appears between the tone, complexion and sympathetic power of his earlier and of his later speeches. Each bore the impress of his mental peculiarities, upon each his superscription and his seal. So it appeared to Chief Justice Perley, who entered college while young Choate was there, and knew him up to the time of his death. In the eulogy on Mr. Choate, delivered at Dartmouth in July, 1860, the Chief Justice said: "He was always remarkable for the same brilliant qualities which distinguished him in his subsequent career. To those who knew him and watched his onward course, little change was observable in his style of writing and manner of speaking except such as would naturally be required by subjects of a wider range, and by more exciting occasions."

In this relation, and before taking up the particular subjects to which we have referred, we are led to notice Mr. Choate's taste as having been delicate, exacting and severe. Like his style, owing much to nature and organization, it was refined by study; so cultivated that it grew with his growth, ripened with his maturity. Without assuming to assign to each co-operating faculty its relative influence, or to inquire how much the ripened fruit had been nourished by faith, principle or judgment, it may be said that his taste served him in every office of his life -- in manners, conversation, in the deference due to others and in the respect due to himself, in the selection of subjects most worthy of study, and in the moral tone of those principles which he sought by the most earnest and delicate persuasion to implant in the public mind. How highly he valued that taste and its culture clearly appears. A man of the most delicate sentiments, his nature, as was said of Racine, "a living fountain of enthusiasm," his taste and judgment were in strict alliance. He was tolerant in his opinions of others, severe in his estimate of himself. He recalls with fidelity, and as if for his own encouragement or admonition, his studies in various departments; at times, seems hopeful, almost glad, in view of what he perceives he may attain; at other times, he seems sad, as if his studies had been partial or inadequate. As an instance, after he had garnered up in his mind and heart such wealth of learning as only one so receptive and devoted could acquire, we find him saying:

"I have written only this translation of Quintilian since Saturday, professional engagements have hindered me; but I have carefully read a page or two of Johnson's Dryden, and a scene or two of Antony and Cleopatra every morning-marking any felicity or available peculiarity of phrase - have launched Ulysses from the Isle of Calypso, and

brought him in sight of Phaeacia; kept along in Tacitus, and am reading a pretty paper in the "Memoirs" on the old men of Homer. I read Homer more easily, and with more appreciation, though with no helps but Cowper and Donnegan's Lexicon. Fox and Canning's Speeches are a more professional study, not useless, not negligently pursued. Alas, alas! there is no time to realize the dilating and burning idea of excellence and eloquence inspired by the great gallery of the immortals in which I walk !" Again, he says: 66 'How difficult it is to arrest these moments, to aggregate them, to tell them as it were, to make them day by day extend our knowledge, refine our tastes, accomplish our whole culture !” His solicitude as to the improvement and preservation of his taste is freely confessed. Thus, he says:

"I have been long in the practice of reading daily some first-class English writer, chiefly for the copia verborum, to avoid sinking into cheap and bald fluency, to give elevation, energy, sonorousness, and refinement, to my vocabulary. Yet with this object I would unite other and higher objects — the acquisition of things-taste, criticism, facts of biography, images, sentiments.


Of this, Chief Justice Chapman gives an illustration, for which we are indebted to Professor Brown. The Chief Justice says:

"Mr. Choate's conversational power was scarcely less remarkable than his forensic power. It was, by no means, limited to the subject of oratory. Indeed, so far as my acquaintance with him is concerned, he never made that a prominent topic of conversation; but I recollect one of his conversations on eloquence. He was talking of Burke's speeches, of which he was known to be a great admirer, and remarked to a friend of mine who was extolling Burke above all other men, that he thought on the whole that the most eloquent and mellifluous talk that was ever put together in the English language was the speech of Mr. Standfast in the river. I went home and read the speech soon afterward, and I confess I appreciated John Bunyan's eloquence as I never had done before."

Yet, it will appear that this man, so delicate, refined, emotional, with such a keen sense of what was sweet and beautiful in life, sentiment, and study, was not the less able to deal with stern and sober subjects, to enter into and appreciate the trials and struggles of those who, like the earlier settlers of this country, labored in obscurity, with no embellish

In the same spirit as to a contemplated course of ments to their lives save such as came from the perstudy, he says: formance of humble yet important duties.

"The investigations it will exact; the collections of authorities; the constant use of the pen; the translations, the speculations, ought to constitute an admirable exercise in reasoning, in taste, in rhetoric as well as history."

Again, after referring to a course of reading considered too desultory, he states the benefits thus:

"No doubt taste has been improved, sentiments enlarged, language heightened, and many of the effects, inevitable, insensible and abiding, of liberal culture, impressed on the spirit."

And again, later, as to his plans when traveling abroad, he says:

"Then I must get, say half an hour a day, for Greek and Latin, and elegant English. For this purpose, I must get me an Odyssey and Crusius, and a Sallust, and some single book of poems or prose, say Wordsworth. This, lest taste should sleep and die, for which no compensations shall pay !"

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FRANKLIN, January 31, 1878. MY DEAR SIR-I confess it would be a hopeless task for me to delineate the character of Rufus Choate. You have given, in your own finished style, a concise, yet comprehensive view of what he was and did, and you have been aided by those who saw and heard him more frequently than myself. Yet I will place my memory at your service.

I knew him well while at college, Our acquaintance commenced in 1816. He was one year in advance of me in collegiate standing, and in age. I belonged to the same literary society with him, for three years, and remember with pleasure his leadership there. During my last year at college he was a tutor.

After graduation we lived a hundred miles apart. I frequently saw him when I visited Boston, had interviews with him, and occasionally heard him in courts of justice. I was with him in the Whig Presidential conventions at the nominations of Gen. Taylor, at Philadelphia, and Gen. Scott, at Baltimore. At both conventions we supported Mr. Webster as a candidate. I afterward heard his famous eulogy upon Mr. Webster. A short time before his death I had an in

In speaking of Mr. Choate's taste as having been severe as well as delicate and exacting, we were conscious of using a word of high commendation. If we had ever heard an improper word from his lips in the informal interviews to which we were kindly admitted, or had found in his writings an expres-teresting conversation with him, in which he ansion having the slightest immoral taint, we should have repressed the eulogy. But, happily, without > shade of mental reservation, we can let the word stand. In another sense, and, perhaps, not to the fancy of some sentimental scholars, was his taste

nounced the unwelcome intelligence that his physicians had notified him to quit all labor and to take a sea voyage as affording the only hope of recruiting his feeble bodily frame.

The only reminiscence of his college life which occurs to me as not already narrated by your correspond

ents, was an amusing practical joke perpetrated by him and some others in the exchange of potatoes for apples in the sole remaining sack in which the latter were offered for sale by a farmer of the name of Johnson, from Norwich, and then getting Johnson to offer them for sale at the college. A purchase was made by the students who had been notified of his approach by Choate, and then, upon opening the sack, an outcry raised against Johnson for attempted imposition. Protestations of innocence were met with ridicule, and suggestions of the interference of the Evil One. Choate, standing in front of Johnson, and amused at the perplexity depicted upon his countenance, exclaimed "Would that Hogarth were here!" Johnson caught at the name, with suspicion, and afterward offered to reward us if we would tell where Hogarth was to be found.

One of Choate's most eloquent and effective speeches was delivered in his senior year at college, in the autumn of 1818, while acting as president of our literary society. It was upon the occasion of the introduction of many members from the Freshman class. The custom of presidents of the association had been to make a brief formal speech setting forth the objects of the society and the duties of its members, and that was all we expected. We were surprised by a well prepared and eloquent address of considerable length. At that time he was in vigorous health and full of energy. The silvery tones of his voice, resounding through our little Hall, kept the assembly spell-bound while he discoursed upon those elements of character essential to the formation of the ripe scholar and the useful citizen. The late Chief Justice Perley was one of the young men then made a member of the society of "Social Friends." In after life I often heard him allude in terms of high commendation to that performance. On the following day I undertook to note down in a little scrap-book some of the thoughts to which he had given utterance, although I could not reproduce the brilliant language in which they were expressed. I give some of those memoranda:

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To make the successful scholar, patient, constant, well-directed labor is an absolute requisite. * * He must aim at reaching the highest standard of excellence of character. Good mental endowments must be allied to conscience, truthfulness, manliness. In the affairs of life brains are essential, but truth, or heart, more so. **Not genius so much as sound principles, regulated by good discretion, command success. We often see men exercise an amount of influence out of all proportion to their intellectual capacities, because, by their steadfast honesty and probity, they command the respect of those who know them. George Herbert says 'A handful of good life is worth a bushel of learning.' Burns' father's advice to his son was good

'He bade me act the manly part,
Though I had ne'er a farthing,
For, without an honest, manly heart,
No man was worth regarding.'

A critic said of Richard Brinsley Sheridan, that if he had possessed reliableness of character he might have ruled the world, but, for want of it, his splendid gifts were comparatively useless. Burke was a man of transcendent gifts, but the defect in his character was want of moral firmness and good temper. To succeed in life we must not only be conscientious; we must have also energy of will, a strong determination

to do manly work for ourselves and others. The strong man channels his own path, and easily persuades others to walk in it. * * When Washington took command of the American army the country felt as if our forces had been doubled. So when Chatham was appointed Prime Minister in England great confidence was created in the government. * * After Gen. Green had been driven out of South Carolina by Cornwallis, having fought the battle of Guilford Court House, he exclaims 'I will now recover South Carolina, or die in the attempt.' It was this stern mental resolve that enabled him to succeed. ** Every student should improve his opportunities to cultivate his powers. He owes this duty to his friends, his instructors, and his country. Our learned men are the hope and strength of the nation. They stamp the epochs of national life with their own greatness.' They give character to our laws and shape our institutions, found new industries, carve out new careers for the commerce and labor of society; they are, in fact, the salt of the earth, in life as well as in death. Constituting as they do the vital force of a nation and its very life-blood, their example becomes a continual stimulant and encouragement to every young man who has aspirations for a higher station or the higher honors of society. Now, my brethren and young friends, we beseech you to strive earnestly to excel in this honorable race for just fame and true glory, and in your efforts to mount up upon the fabled ladder do not be found, in the spirit of envy, pulling any above you down, but rather, in the exercise of a more liberal spirit, holding out a helping hand to a worthy brother who may be struggling below you. Be assured you exalt yourself in proportion as you raise up the humbler ones."

The second part of his discourse was specially devoted to the pleasure and rewards derived from an intimate acquaintance with classical learning. His suggestions were valuable and impressive, and urged home upon our attention with great rhetorical force. If this speech had been published it would have furnished the young student with a profitable guide in his pursuit of knowledge.

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Mr. Choate has been rightly described to you as an original nondescript. He was like no other person in his style of writing, or in his oratory. He perceived quickly and acquired rapidly. He possessed a retentive memory, appropriating to himself readily the thoughts of others. To his able reasoning powers he united an imagination richly perfumed from Carmel's flowery top," powerful, soaring, unbounded. He seemed to have been fashioned for a poet. He remarked to me one day that he loved poetry, but poetry did not love him. As to temper he was always indulgent and kind, speaking evil of none. In his daily intercourse with others, he was courteous and liberal to a fault. He was naturally gentle, but when pressed hard was capable of inflicting blows that left an impression. I once heard him deal with a bad witness in court. He did not call him hard names, but covered him over with an oily sarcasm so deep that the jury did not care to look after him. In other words, the witness was slain politely, and laid out to dry.

Not far from the year 1845, the Hon. Levi Woodbury was invited by the literary societies of Dartmouth College to deliver an oration at the annual commencement in July. Going thither I had a seat in the stage coach with Mr. Webster, Mr. Woodbury and Mr. Choate. A good opportunity was presented

of witnessing their conversational powers. Mr. Webster and Judge Woodbury had for many years resided in Portsmouth, N. H., and topics relative to men and scenes there were much discussed by them. Of course I could not but be an interested listener. The early history of our State, the character of the settlers, their leaders, their privations and sufferings by reason of Indian warfare, the character of our early governors, and the growth of the State, with historical reminiscences and anecdotes, were introduced. I was surprised to find that Mr. Choate was so familiar with our early history as to give dates and events with accuracy. By easy transitions they passed to the judiciary of the State and the members of the bar, discussing their respective merits. On these local subjects the New Hampshire men, of course, had the vantage ground. Wishing to give a new direction, therefore, to the conversation, I asked Mr. Choate as to his later reading. He answered that he had recently been occupied in the perusal of Milton's prose and poetry. Mr. Webster said to him, "As you are so recently out of Paradise, will you tell us something about the talk that Adam and Eve had before and after the fall?" Mr. Choate asked, "Do you intend that as a challenge to me ?" Webster answered, "Yes, I do." Choate hereupon recited promptly portions of the addresses of Adam to Eve, and Eve to Adam, much to the edification of his audiWebster rejoined with the description of the conflict between Gabriel and Satan from the sixth book of "Paradise Lost." His recitation was received with applause. John Milton himself, had he been present, would have been satisfied with the performers on that occasion. We have seen celebrated actors on the stage, but none before like those in the stage.


At my last interview with Mr. Choate in Boston, after alluding to his incessant and severe labor at the bar for many years, he said he was literally worn out, and added in a melancholy way, "I have cared much more for others than for myself; I have spent my strength for naught." I reminded him that he had gained high reputation in his profession, and also as a scholar, and this was his reward. He said, "We used to read that this kind of fame was but an empty bubble; now I know it is nothing else." Such was Mr. Choate's estimate of human glory when consciously near the termination of his eventful and honored life. He added, "My light here is soon to be extinguished. I think often of the grave. I am animated by the hope of that glorious immortality to be enjoyed in a kingdom where sin and sorrow cannot come."

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1 remain, very respectfully, etc., GEO. W. NESMITH.



THE PEOPLE V. LORD, 12 Hun, 282.

'HE defendant committed the offense of bribery in 1871, and as the law then stood an indictment "shall be found within three years after the commission of the offense." But in 1873, before the limitation had expired, the statute was amended by substituting the word "five" for the word "three." The indictment was found in 1875, within five years after the commission of the offense. The defendant contended that the amendment of 1873 should be construed to apply only to offenses committed subsequent to its passage, and that all offenses committed previous thereto were

to be governed by the original limitation, which had expired before this indictment was found. Upon a motion to strike out defendant's plea of the statute of limitations, Clinton, Ch. J., of the Superior Court of Buffalo, held that the amendment applied to offenses committed previous to its passage, which were not then barred by the original statute. The indictment was afterward sent to the Court of Oyer and Terminer, and Daniels, J., upon a motion to direct a verdict of not guilty, held the same way. But the General Term, in an opinion delivered by Mullin, P. J. (Talcott, J., concurring in result, and Jas. C. Smith, J., dissenting), held that the amendment should not be construed to take in offenses committed previous to its passage, though not then barred under the original limitation. We propose to examine this question and to show that, upon principle and upon the authorities, this decision cannot be sustained.

The principle is general, if not universal, that all laws, civil or criminal, are to be construed as furnishing a rule for future cases only, unless they contain language unequivocally and certainly embracing past transactions. 24 N. Y. 20. Or, in other words, statutes are to be construed to operate prospectively, and not retrospectively. "Retrospective is defined, "Having reference to what is past; affecting things past." And a retroactive or retrospective law or statute is defined to be one which operates to make criminal or punishable, or in any way expressly to affect, acts done prior to the passing of the law. Webst. And every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, must be deemed retrospective. 2 Gall. 139.

It has been said that a statute may be construed to operate retrospectively, if vested rights are not thereby impaired or affected. But Mr. Austin says (Jurisp., vol. 2, 887-9) that the epithet "vested," as applied to a right, is superfluous or tautological. "Every right, properly so called, is of necessity present or vested: that is to say, it presently resides in, or is presently vested in, a present and determinate party, through the title, or investitive fact, to which the law annexes it as a legal consequence or effect. When we oppose a vested or present, to a future or contingent right, we are not opposing a right of one class to a right of another class, but we are rather opposing a right to the chance or possibility of a right. A right may be present or vested, although the right to enjoy it, or exercise it, be contingent or uncertain. Or, in other words, a present and certain right to possession is not of the essence of a present and certain right." And the principle of construction above stated is just as applicable to contingent rights, or to chances or possibilities of rights, as to vested rights, or rights properly so called. To deprive a man of an expectancy, by construing a statute retrospectively, were just as pernicious as to deprive him of a right without the same reason to justify tho construction. By contingent rights, we mean rights to property. An expectation of acquiring a defense to an action or indictment, by reason of neglect to sue or prosecute the same within the time prescribed by law, is not an expectant right to property, and is not, therefore, within the meaning of the rule. Before proceeding to show the application of the rule of construction above mentioned to statutes of limitation, it should be observed that the

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