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But it has never been held that an unstamped instrument is per se valid. On the contrary, the decisions are all the other way, and on two grounds, first, the stamp laws were intended as revenue laws, and to render the contract invalid or inadmissible in evidence, it must appear by affirmative proof that the omission to stamp it was not the fraudulent intent to evade the law; and secondly, upon application to the proper officer the stamp may be affixed upon the payment of the penalty, or without payment if the omission to stamp it was by reason of accident, mistake or inadvertence, etc. 14 United States Statutes at Large, ch. 184, § 158; Campbell v. Wilcox, 10 Wail. 420; Black v. Woodrow and Richardson, 39 Md. 195. Sup. Ct. Maryland. October, 1883. Laird v. State. Robinson, J. (61 Md. 310.)

Opinion by


DE CONJECTURIS ULTIMARUM VOLUNTATUM. Dissertatio pro gradu doctoris in jure civili. A Wolseley P. Emerton. Oxonii, MDCCCLXXXIV.

This treatise, bearing the same title as Mantica's "De conjecturis ultimarum voluntatum," has been sent to us by the publisher. It was composed in the Latin tongue, in deference to a request of the proper University authority of Oxford, as a test of the author's fitness for the degree of D. C. L. To our readers the treatise promises a two-fold interest: it bears upon an obscure branch of testamentary law, and it evinces the scholarship which is now expected of candidates for the higher ranks of English university honors.

The interpretation and construction of testamentary dispositions are arrived at through certain rigid canons, peculiar to a particular jurisprudence. This writer's endeavor has been to collate and compare the doctrines of the Roman and English systems of interpretation, and particularly those portions which relate to conjectures or presumptions of law. The main dispute of the schools relates to the basis of interpretation: Shall this be the literal meaning of the words, or the intention of the testator? "li qui scriptum defendunt his locis plerumque omnibus, majore autem parte semper usi sunt. Primum loco communi nihil eos qui judicent nisi id quod scriptum sit spectare oportere; et hoc eo magis si legitimum scriptum proferetur, id est aut testamentum ipsum aut ex testamento aliquid. In hoc ita commorari solent quasi nihil præterea descendum sit, et quasi contradici nihil possit.

"Postea facti aut intentionis cum ipso scripto; quid scriptum sit, quid factum, quid juratus judex; quem locum multis modis variare gaudent. Si aliud sensisse testator aliud scripsisse dicatur. Non oportere de ejus voluntate nos argumentari, qui ne id facere possemus indicium nobis reliquerit suæ voluntatus; multa incommoda consequi, si instituatur ut a spripto recedatur nam et eos qui aliquid scribant non existamaturos id quod scripserint ratum futurum; et eos qui judicent, certum, quod sequantur, nihil habituros si semel a scripto recedere consueverint." (p. 11.)

Those who favor a liberal construction maintain, on the other hand, that the testators themselves expected their intention to triumph over their words. It may be confessed, without detracting from the merits of his general position, that Mr. Emerton's reasons for the more liberal course are not placed on the strongest foundations. They should have been stated with more fullness and precision to have been equal to his better style of reasoning.

Mr. Emerton, differing from most English lawyers, adheres to the most liberal rules of construction, but he disputes the idea that English jurisprudence, in this respect and others, owes little to the Romans, and he cites a few well-known instances to the contrary: "Quod tamen quam longe a vero abhorreat, ex iis judicari potest quæ in foro nostro quotidie versantur: videmus enim (ut omittam alia) legatorum fere jus omne, donationum tum mortis causa, tum propter nuptias, necnon magna ex parte id quod de Societatibus hodie tenetur, ex Romanorum scriptis apertissime venisse." (p. 17.)

The author next traces the history of interpretation in England, and accounts for the divergence of the English and the Roman rules. This part of his treatise is likely to prove both useful and lasting, as any rational account of English interpretation is preferable to the chaos of results stated by the practical treatise writers. We know how the prevailing philosophy affected Roman law, and it is most interesting to perceive critical attention directed to the influence of the realist school of logic on the Tudor period of English law.

Mr. Emerton's illustrations from the Pandects are a leading feature of his essay. The Romans never have been surpassed in the application of principles to complex states of fact. In no other respect did they attain such perfection, or are they so worthy of our earnest imitation. This truth, now universally conceded, is at the root of the classical revival in England. Mr. Emerton's treatise, as well as Dr. Walker's recently published selections from the Digest, already familiar to us, may assist in awakening a like interest in this country, where Roman law is too much neglected. Certainly when we reflect that hundreds of years ago lawyers of great practical skill and profound scholarship solved many of the juridical problems we are now engaged in, it seems curious that we should deliberately overlook their solutions. This induces us to say with Mr. Emerton: "Sed meos amicos, * * in quibus est studium, in Latium mitto, id est ad Romanos ire jubeo, ut ea a fontibus potius hauriant quam rivulos consectentur."

Of the style of Mr. Emerton's paper it would be unbecoming in us to speak; he is so heavily weighted by the vehicle of his expression. His words are always happily chosen, and if his construction is not that with which most of us are the more familiar, it is doubtless because Americans usually end their familiarity with the Latin tongue where the post-classical period begins. The moderns nearly always avoid the ablative absolute construction, preferring other modifiers of the predicate, and they rarely use the oratio obliqua, a legitimate mode of transferring other people's sentences without quotation marks. One fault, peculiar to most modern writers of Latin, is observable in Mr. Emerton, the conversion of well-known English, or other European names, into university Latin. Why not William Blackstone instead of "Gulielmum de Nigro Lapide," and Lord Mansfield instead of "De Agrohominis Comite," on the 18th page of this treatise? But this is a matter of taste, purely. We do not pretend to a criticism of Mr. Emerton's Latinity. His learned treatise is worthy of both emulation and praise.

Now that he has published this outline, it is evident that Mr. Emerton's preparation is adequate to a fuller exposition of the subject, and we venture to hope that his next literary effort will be in such a direction, but in the vulgar tongue, so much more familiar to us all, and so much better adapted to a more accurate treatment of the English phase of the subject.

The Albany Law Journal.





UR readers will bear us witness, that we have not said any thing in a long time about “ tingent fees." Judge Henry, of Missouri, in a recent address has alluded to the subject, it seems, but the address has not come to our notice. The Central Law Journal remarks: "A noticeable feature of Judge Henry's address to which we made recent allusion was his criticism of the practice of taking cases for contingent fees. A great deal of the criticism of judges is, the judge says, due to this habit. The attorneys are by force of such stipulations substantially parties to the suit. More, he has the double interest of the party and attorney, and smarting under his defeat, only gets the satisfaction for his labor derived from stalwart AngloSaxon denunciation of the court, to whose rulings he attributes his lose.' 'It were far better,' says the judge, for the bar and their clients and the courts, if the attorneys would adopt and inflexibly adhere to the rule of charging a reasonable, fixed compensation for their services, and let the clients take all the chances of the litigation. If this were the invariable practice, many cases which now find their way to appellate courts, would never be commenced in the lower courts, or would end there. And these are the cases in which attorneys most frequently unreasonably complain of the decisions of the appellate courts.' These observations of the learned judge will bear careful consideration. There can be no doubt that the practice alluded to has many more unpleasant consequences than those mentioned by the judge. It encourages dishonest litigation, and often is an incentive to unprofessional conduct. makes counsel desperate, oftentimes, and we all know the moral feelings of one in desperate straits. Still with all the disadvantages which may accrue to the public from the practice, there is one thing in its favor which has never been disproved, i. e., that it greatly assists the poor man in obtaining justice against wealthy, oppressive corporations, who would otherwise, by force of their bullying course, and possession of what the victims of their dereliction of duty have not, oblige them to seek no redress, or content themselves with a small proportion of their dues. Such a gain is so desirable that it may well be considered whether it does not overbalance the disadvantages of the practice." We have on former Occasions suggested that the best and simplest road out of the difficulty is to have laws enacted giving a lien for reasonable counsel fees as well as attorney fees. This would amply protect counsel, and at the same time do away with the practice of robbing clients under the pretext of asserting their rights against powerful corporations.

VOL. 30- No. 13.


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From a recent number of " 'Pump Court tract the following from a summary of and remarks upon an address by Sheriff Wilson, of the Aberdeen Chamber of Commerce, on a code of criminal law : "In spite of the venerable fiction, nobody actually knows the law; and notwithstanding our buoyant readiness to worry along somehow, under the dim impression that the law is incomprehensible and probably in antithesis to justice, it does seem passing strange that the foremost commercial nation of the world should not yet be provided with a simple, complete and authoritative statement of its commercial law, intelligible to every trader in the country. * ** + The various objections to a Commercial Code, like so many more lions in the way, require only to be faced with decision in order to be overcome. Where is the good of sneering at foreign codes when the people that use them proudly point to greately facilitated business and greatly diminished litigation? It is hardly worth while to answer the argument, that under our present laws, English commerce has attained proportions vastly greater than the commerce of any other nation; for surely this greatness has been reached in the very teeth of the confusion of our laws, and not through the beneficent aid of that confusion. It is a wholly imaginary objection that codification cramps the law and prevents the introduction of necessary amendments. If any one is inclined to dispute that the laws of Great Britain are in a condition eminently requiring codification, let him consider the endless voluminousness of statutes and decisions, with all their obscurities and contradictions, the difficulty that even the professional jurist experiences in reaching a clear idea of the whole law on any particular subject, and the frequent and tedious litigations in our courts over the first principles of commercial law. If you take any ordinary legal treatise say Benjamin on Sales - there are single lines in it which must have cost hundreds of pounds to settle. According to foreign experience, the great bulk of such litigation has been unnecessary. No doubt the cost of a code would be something, but it would be inconsiderable compared with the amount we spend on avoidable litigation, and it would fall upon the nation at large, and not upon the individuals who are unfortunate enough to be the victims of a legal ambiguity.' To such as argue that a Commercial Code for the United Kingdom is impracticable owing to the radical differences between Scotch and English commercial law, Sheriff Wilson points out that this is a complete misapprehension, and that the commercial law of England and of Scotland are, in fact, substantially the same; and he points also to the vastly greater differences that existed in the various provinces now united under the different continental codes. That the mass of our law is too extensive for codification is a very unsafe objection; indeed, as Sheriff Wilson considers, the fact that our law is well developed in detail, is rather an encouragement for us to go on with its codification than the reverse. It supplies the strongest reason why we


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that consent to engage in a boxing match is N State v. Burnham, 56 Vermont, 445, it is held not a defense to an indictment for a breach of the peace, and that evidence is inadmissible to prove that such matches are common and harmless. The court said: "We have to consider this case as presented by the exceptions. It is true, as contended by the respondent's counsel, that sparring or boxing with gloves manufactured for that purpose, as conducted and engaged in ordinary athletic sports, is not unlawful, nor a breach of the peace. It may be that such sports, properly conducted, are both healthful and promotive of physical vigor and development, and should be encouraged. But such pugilistic exercise may be abused and carried beyond the limits of heathful and lawful exercise and sport. It may be so conducted as to create a breach of the peace. It may even degenerate into a prize fight. Many of the circumstances detailed in the exceptions, the agreement to engage in the match, giving notice, having seconds, a referee, rules, a ring, etc., are not inconsistent with lawful sport, nor yet with a breach of the peace. Neither is the fact that slight injuries were inflicted upon the contestants determinative of the character of


the engagement. ** The only question re

served was whether the consent of the combatants

A correspondent writes us: "One object I had in writing was to say how interested I have been in the perusal of some "Odds and Ends" and "a Legal Romance," in numbers of July 19, and September 6, of your journal. I hope I may not be deemed hypercritical in remarking that your correspondent in the former seems to intimate that Sir John Kerslake is still living, "and may perhaps be still seen at the Temple Church," etc., whereas Sir John has been dead some two or three years. Again, the writer of "A Legal Romance," etc., says that Mr. Kennedy, who so gallantly won Mrs. Swinfen's case by indomitable pluch, perseverance and industry pitted against an array of legal talent on the other side, supported by judicial leanings and the class sympathy of county influences, was disbarred and died of a broken heart, etc. That Mr. K. died broken hearted and ruined is quite true, but that he was disbarred is incorrect. In deference to the expressed judicial opinion that he would prevent their acts from being a breach of the had been guilty of a breach of professional etiquette peace. Clearly, such consent would not necessarily in entering into a contract with his client for a congive character to their acts and prevent their betingent fee, the Benchers of his Inn of Court coming a breach of the peace. The conduct — thought it right to mark their disapproval of such quarreling, challenging, assaulting, tumultuous and an act by discommoning or discommuning him for offensive carriage, etc., which the statute declares six months; i. e. forbidding him to dine in the Hall to be a breach of the peace is capable of being or to use the library of the Inn during that period, consented to by all the parties guilty of it. Conpublicity of such censure being posted on the screens sent therefore was not at all determinative of of such respective buildings. In one word - sendwhether the respondent and Bloxham were guilty ing him to Coventry. This is however something of a breach of the peace by their acts and conduct far short of being disbarred, and I can person- on the occasion complained of. The court were ally testify that some six or seven years after correct in instructing the jury that their consent to the infliction of this somewhat impotent and craven engage in such acts and conduct was not determinsentence Mr. Kennedy was still practicing at the ative of the quality of the same in regard to guilt bar, as I was about that period associated with him or innocence. Their acts and conduct might have as junior counsel in a case on the Oxford Circuit, all the elements of a breach of the peace notwithwhere he was specially retained for the occasion. standing such consent. Neither was the respondMr. Kennedy was one of the best Greek scholars in ent entitled to have admitted the offered evidence England first of his year, I believe, in the Classito show that such matches were common and harmcal Tripos at Cambridge, and besides carrying off less amusements, innocent and proper exercises, other prizes, he was elected a Fellow of Trinity practiced in the universities and colleges in this College of that University, and never to my knowl- country. Such evidence was not at all determinaedge did any thing to 'disgrace' himself, as hinted tive of, nor helpful in determining, the character by your correspondent, though I am well aware of and quality of the contest between the respondent the alleged 'unsavory statements' referred to, and Bloxham, as conducted by them on the occawhich even though fairly attributed to him, savor sion complained of. Nor was there error in not rather of Mr. Kennedy's bad taste and the ebulli- giving the huge boxing gloves to the jury to examtions of irritation than of criminality or breach of ine. Probably if it had allowed the jury to make confidence. At all events I desire to rescue the such examination it would not have been error. memory of a deceased friend from the imputation | Whether it would or would not order such examinawhich a disbarral implies." tion was largely in the discretion of the County

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Court. The gloves furnished no criterion by which to judge of the character of the contest, nor of the manner in which it was conducted."

63 N. Y. 522) when the cases referred to
were discussed, and although the court seems
to have changed its rule in that case on a
question of evidence as to the custom of having a
flagman, nevertheless it declared that it had been
decided that it was not the duty of a railroad com-
pany to keep a flagman at a crossing, and it was
not chargeable with negligence for the omission of
any such supposed duty. The principle involved
in this proposition is discussed elaborately. The
court said in the course of the discussion: 'In a
given case the evidence of the absence of a flag-
man is received, and the judge charges the jury
that if they find that it was the duty of the de-
fendant, under the circumstances, to keep a flag-
man at the crossing, the omission of that duty is
negligence, which may make the defendant liable.
Under such a charge that duty is made the central
and controlling fact, and if the jury should find
that the defendant had run its train with the great-
est care in other respects, and that it was guilty of
no other negligence, and yet should find that it had
omitted that duty, they could find a verdict against
the defendant.
Under such a charge as I
have supposed, the jury is put in the place of the
Legislature, and its decision as to the duty has the
force of statute law, and hence such a charge has
properly been condemned by the courts of this
State.' 'In another case,' the court continued,
'the evidence is received, and the jury is charged
that the defendant owed no duty to any one to
keep a flagman at the crossing, but that its sole
duty to travellers upon the highway was to run and
manage its trains with proper care, so as not to in-
jure them in the exercise of their lawful rights, and
that upon the question whether such care was exer-
cised, they must consider all the circumstances ex-

* * *

The question of the necessity of a flagman at a railway and highway crossing is considered in Coyle v. Long Island Railroad Co., 33 Hun, 38. It is held that the omission to station a flagman may be considered as a circumstance bearing on the question of negligence, yet it is not conclusive. The court cite Beisiegel v. New York Cent. R. Co., 40 N. Y. 9; Grippen v. Same, id. 46; Weber v. Same, 58 id. 458; McGrath v. Same, 59 id. 468; 63 id. 522; Houghkirk v. Pres't, etc., Delaware and Hudson Canal Co., 92 id. 219. The court said: "In Beisiegel v. New York Central Railroad Co., 40 N. Y. 9, in which the judge charged the jury substantially that it was a question for them to determine whether the crossing referred to in that case was in so populous a portion of the city that it was due to the public safety and common prudence that the company should keep a flagman stationed at that point, and if they determined that it was then an omission to do so was negligence, the court declared that the charge was error, and a new trial was granted. And in Grippen v. New York Central Railroad Company (same vol., p. 46), the court said: 'The question to be submitted to the jury is not therefore whether in their judgment due care required the railroad company to keep a flagman at the station to give warning; not whether that was a suitable mode of giving notice of the approach of a train; not what signal would be sufficient to give such notice. But the question is whether, under the actual circumstances of the case, the company exercised reasonable care and prudence in what they did, and whether its neglect caused the injury complained of. In Weber v. New York Central Rail-isting at the time and place of the accident, and road v. Company, 58 N. Y. 458, the court said: 'The judge had before distinctly instructed the jury that there was no law making it the duty of the defendant to have a flagman, and that it was not negligence in it not to have one at this particu| lar street crossing;' and further, "thus one of theerrors that led to a reversal of the judgment in Beisiegel v. New York Central Railroad Company, and Grippen v. The Same, was avoided.' And in McGrath v. New York Central and Hudson River Railroad Company, 59 N. Y. 468, it was held that where a railroad company had been accustomed to keep a flagman at a crossing, the fact of his absence or withdrawal did not excuse a traveler from the charge of negligence in omitting the use of his senses. He had no right to interpret the absence

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among them the fact of the absence of a flagman at the crossing. In such a case a proper use is made of the evidence, and the charge is liable to no just criticism.' In the case of Houghkirk v. President, etc., Delaware and Hudson Canal Company, 92 N. Y. 219, the plaintiff requested the court to leave it to the jury as a question of fact to say whether, under the circumstances disclosed by the evidence, the defendant should have had a flagman at the crossing. The court answered: 'I have done so.' The court then added: 'I said I would not charge, as matter of law, whether the company was or was not bound to have a flagman there; it was a question for the jury to say under the circumstances; and the defendant again excepted. The Court of Appeals said: "The charge in this respect was substantially the same as that in Grippen v. New York Central, for which the judgment was reversed. In both instances the jury were allowed to find that due care required the presence of a flagman, and that the omission to station one at the crossing was negligence on the part of the railroad company.' And the court further said: 'The true rule and the proper distinctions were

well stated in McGrath v. New York Central and Hudson River Railroad Company, 63 N. Y. 528. It was there said it would be error for a judge to instruct a jury that it is the duty of a railroad company to keep a flagman at a crossing, or to submit to a jury the question whether it ought to have kept a flagman there;' and the court said the reason was carefully pointed out; that a railroad company is not bound and owes no duty so to station a flagman, and negligence cannot be predicated of the omission; that the fact may be proven as one of the circumstances under which the train was moved, and by which the degree of care requisite in its handling and running may be affected; so that the question never is whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether, in the view of his presence or absence, the train was moved with prudence or negligence. And the court said further: The jury must have gone to their deliberations with the final impression upon their minds that they were at liberty to find that the defendant ought to have stationed a flagman at the crossing, and that omission constituted negligence upon which a verdict could be founded. For this error we think there should be a new trial.' This case is the latest exposition of the law relative to the stationing of flagmen in the management of railroads." See Pittsburgh, Cincinnati and St. Louis Ry. Co. v. Yundt, 78 Ind. 373; S. C.,41 Am. Rep. 580; Welsch v. Hannibal and St. Jo. R. Co., 72 Mo. 451; S. C., 37 Am. Rep. 440.



FTER a few years' absence from London it is hardly safe to assume the present existence of any old landmark, but we hope the much decorated barber's shop in Fleet street, just within Temple Bar, has escaped the fate of its better known neighbor, the old Bar itself, and still remains with its bold inscription informing the passer-by that here once stood the palace of Henry VIII. A second Elia would find matter for an essay in such an instance of the irony of history, but the mantle of Elia, alas! has not fallen upon any successor, and our purpose is not to moralize, but to turn once more, as in the happy days of yore, down the archway under the shop, and descending the flight of steps to enter the ancient and solemn portal of the Temple church. What an airy architecture have we here! How original and striking the effect of the old octagon chapel of which the first stone was laid by an eastern patriarch in the early crusading days opening into the younger but still ancient oblong, forming now the principal building. Around us lie the crusaders themselves, with legs crossed, and their great guards by their sides, while over our heads the quaint gargoyles show the exuberant wit of monastic fancy. How some old fellow must have chuckled to himself when he knocked off this poor sinner's head, with the devil

actually eating his ear! Truly Rabelais was not without predecessors who writ their mocking tales in stone.

But we pass through the barrier and enter the main building. Our lady companions are ushered to their separate seats at the side, and we bachelors for the nonce must take our places in the middle pews, for the separation of the sexes still remains a custom of this church, handed down from the old monastic times. A chorister boy is busy arranging music books. A distant strain of rehearsal reaches us from the outer buildings, and we may therefore safely conclude that we have a quarter of an hour to spare before service commences. We notice the clean spring of the arches from the darkly glistening, many columned pillars, the rich, soft colors of the roof, the purple windows, the quiet, unobstrusive completeness of the whole building, and we admit that the Honorable Societies of the Inner and Middle Temple have indeed known how to build to God a church worthy of their old and noble guild. We recall, too, the many famous divines that have preached here, from the sad and serious Hooker, the stately periods of whose "Ecclesiastical Polity" still delight the student of Elizabethan literature, down to the present distinguished master, C. J. Vaughan, whose sermons are a model of cultured power.

Even this afternoon we notice in the congregation many a famous man. Yonder, pathetic in his blindness, sits the beloved Sir John Karslake, and next to him is Sir Thomas Chambers, recorder of the city, whilst just behind them, also amongst the Benchers of the Middle Temple, we espy the ruddy countenance of the Prince of Wales. Over against them, on the Inner Temple side, sits old Lord Chelmsford, erst chancellor, close to his successor on the woolsack Cairns, and further on, Selborne, who in his turn has ousted Cairns, is cheek by jowl with the last of the chief barons, Sir Fitzroy Kelly. The Temple congregation is probably the most intellectual and distinguished in London, and it is no ordinary ordeal a preacher here has before him.

Now let us see what music we are to have, and whilst we are examining our anthem and church books we do not fail to note the winged pegasus stamped thereon, the emblem of the Inner Temple. We are just deep in the learned examination of cathedral music, which precedes the chorals, when the melodious thunder of the organ awakes our attention. Nor must we omit to notice this famous instrument, peculiar in having six black keys to each octave, to wit, a B minor distinct from the D sharp, built by Smith, the father of English organ building, in tempore Charles II. The construction thereof was a subject of competition between the aforesaid Smith and the then equally renowned Renatus Harris. Both rivals erected an organ in the church, and the cognoscenti of the day were at a loss to decide which to select, till ultimately the choice was left to Chief Justice Jeffreys of bloody Assize infamy, who pitched upon the one which, greatly augmented and improved, now delights

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