into account. Density and character of population, race antagonisms, and, in the older communities, respect for tradition, are all important elements. A hard and fast code well adapted to one part of the country might prove a failure in another. The Federal statutes cannot, of course, recognize sectional lines in prescribing penalties

for crime. Hence the wisdom of such an elastic system as the Curtis bill proposes, whereby, in all save a few instances, the degree of severity with which a crime should be punished for the best interest of society in any particular district is left to the discretion of a jury of the vicinage.

-Harpers' Weekly.

THER

LONDON, Feb. 1, 1897.

HERE is nothing in connection with practice at the English bar which is so puzzling to the visiting American lawyer wandering curiously through our courts as the distinction between the Queen's Counsel and the ordinary barrister. It is, indeed, very difficult to explain to him the difference that divides the functions of the solicitor from the barrister, and when once he has finally mastered this intricate boundary question, it is discouraging to be told that there is still another and even more subtle division, although a very grave and practical one, that separates the members of the so-called upper branch of the profession into two classes of advocates. At the last Thanksgiving Day dinner of the American Society in London, a witty woman who responded to one of the toasts suggested that American women ought properly to give thanks that they were not English lawyers, "for they are such incomplete sorts of men. There are the solicitors who have learned the law, but who have to get the barristers to practice it for them; and the barristers who practice law, but can't do so until the solicitors give them the chance. So that it really takes at least two legal minds in this country to constitute one active intelligence." The speaker might have gone one step further and invoked the aid of still another mindthat of the Queen's Counsel - before the actual intelligence is perfect.

If, for example, a layman desires some wrong, under which he fancies he suffers, righted, he must go, in the first instance, to a solicitor. He cannot take the advice of counsel directly. The barrister who may ultimately be brought into the case may be his most intimate friend and trusted companion. Nevertheless he must, for the moment at least, pass him by and go to a solicitor. The solicitor, after hearing all the facts will then set them out in a "statement of case for advice," and lay this statement before counsel. If the latter advises that an action will lie, the advice is given to the solicitor, who in turn communicates it to the lay client. The next step is for the solicitor, if the matter is one of any technical importance, or involves any responsibility, to ask counsel to "settle" the indorsement

that is to be made upon the writ. Thus indorsed, the writ is issued. It is returnable in eight days. Then the plaintiff has six weeks in which to deliver his "statement of claim." This the solicitor likewise asks counsel to settle for him. If, after the defendant has delivered his defense, any question arises as to the reply, the solicitor again submits the matter to counsel. The same course is pursued with regard to any interlocutory proceedings - applications to inspect documents, for particulars, and the like. It is within the province of the solicitor to attend in person at the disposition of such matters, but as the costs of briefing counsel to look after them will be allowed in the final taxing of the case, he delegates the duty and the responsibility to the barrister. Finally, when the issues have been joined, and the case has been set down for hearing, the brief proper is delivered, — a voluminous document reciting a history of the antecedents of the parties, the occasion of their dispute, and its circumstances. With it are submitted what in America would be known as a "trial brief," that is, a list of the points involved, citations of authorities on questions likely to arise, and elaborate "proofs" of the witnesses, or what, after examination by the solicitor, they are expected to testify to. There are also copies of the pleadings, the correspondence between the parties before the writ was served, and of such documents as bear on the case. These voluminous papers, all of a uniform size, generally fourteen inches by eighteen inches, are all neatly folded and indorsed on the back with the title of the case, and the fee of counsel; and then, if the matter is of more than very ordinary importance, appear the words "With you Mr. Blank, Q. C." Here is where the Queen's Counsel for the first time appears. He has not been consulted at any preliminary stage of the proceedings, and his brief, identical in all respects with that of his junior, will probably not have been delivered to him more than three or four days before the case is called for trial.

When at last the case is reached, a "consultation" is held, sometimes in the lobby outside the court, but generally on the morning of the trial at the leader's chambers, when the matter is hurriedly run over. Upon assembling in court, the leader occupies a place in the front row of the benches

reserved for counsel, and at both ends of this row there is a wicket gate to prevent intrusion upon these reserved seats; the space is known as being "within the bar." His costume differs from that of his "junior," who takes a position immediately behind him, in that his gown is of silk while the junior is restricted to one of alpaca or bombazine, or, technically," stuff." Hence the Queen's Counsel is known as the "silk," and his being admitted within the bar as "taking silk." The case being called, the etiquette between counsel provides that the junior shall briefly-in literally a sentence or two announce the contents of the pleadings. The leader then makes the opening statement. This opening, particularly if a jury has been sworn, is a long and elaborate presentation of the case, in which everything, including the correspondence between the parties and what the witnesses are expected to prove, is set out in detail. Immediately at the close of the statement, which not uncommonly occupies an hour or two, the junior calls into the witness-box the first witness and takes him through his direct examination. At the close of the plaintiff's case, the leader on the other side opens in a similar way for the defense, and his witnesses are examined by his junior. The silks or leaders reserving to themselves the right of crossexamination. When the evidence is all in, the leaders address the jury in turn, and then the case is summed up by the Court.

It will thus be seen that what the barrister is to the solicitor, so the Queen's Counsel is to the barrister. To the solicitor all rights of advocacy, at least in the high court, are absolutely denied, while so far as the barrister is concerned, although he has the right, he exercises it only in the absence of his leader. In some respects, the division of the work is an advantage to the client, as it enables him to avail himself, when the case is actually before the Court, of an advocate who, by reason of his engaging in no other work, and devoting his whole time to it, becomes specially trained in the most skilful and acceptable way of presenting the points in dispute. Unfortunately, these peculiar powers are not possessed by all Queen's Counsel. The result is that most of the important work is done by half a dozen men who are naturally very much sought after. They find their tables loaded with briefs which they cannot possibly read. These briefs are therefore read and noted up for them by "devils," or young barristers who are only too anxious to handle the papers of a fashionable Q. C. If the notes are well made, the case is comparatively easy, and the opening statement is well delivered. But too often a solicitor who has marked fifty or seventy-five guineas on a brief which he has delivered to one of the prominent leaders, is in an agony

of apprehension lest the papers have not been read or the leader has only a general idea of their contents. It is needless to say that the junior is also on pins and needles as to the result, for he has no way of knowing how much the leader knows. Then, if the statement is well made, — and I must say that it is only rarely that the contrary happens,— the leader is as like as not to leave the court at its conclusion to go off to another case in another court to "open" there, or to cross-examine a witness, or to address a jury. In his absence the junior goes on with the case, resigning it at once to the leader upon the latter's return.

Another disadvantage of the system is the cost it entails. The rule is that the junior shall have his brief marked with a fee which is two-thirds of that of his leader. If, therefore, the leader gets fifty guineas, the junior must have somewhere in the neighborhood of thirty-two guineas, whereas, if he was alone in the case, he would be quite content to take fifteen or twenty guineas. This, in some instances, is avoided by giving the leader a special fee which is not taken account of in arranging the fee of the junior. It is hardly to be wondered at, with a knowledge of these facts, that the costs of litigation are so enormous in this country. In a probate case which has just been finished, no less than four Q. C.'s and five juniors represented the parties in interest in the contest of the will. It is open gossip that the costs will amount to close upon £15,000,— or $75,000! Of this amount, counsel will receive perhaps a tenth, the residue being expended in the solicitor's work. There is one word that I may perhaps add to this attempt to enlighten American lawyers as to a feature of practice which I believe is confined exclusively to English and Irish Courts, and that is how or under what circumstances a junior may" take silk." This privilege, generally speaking, can be obtained from the Lord Chancellor, who alone confers it only after ten years of service at the bar as a junior. Exceptions are, however, made. Judah P. Benjamin took silk, if I remember correctly, after only three years' practice, and Mr. Carson, who came over very recently from Ireland, where he had been the attorney-general, and a leader at the Irish bar, was granted silk after only about a year's service as a junior. It must not be assumed, however, that all barristers who have been called ten years apply for silk. On the contrary, many successful men never desire to take it. It thus happens that the "junior" in the case may be a man of fifty or sixty years of age, with a large and lucrative practice, while the "leader" will be of thirty-five or forty years, and of comparatively small experience. Such cases, however, do not often occur.

STUFF GOWN.

Notes of Cases, etc.

AN UNIQUE LAW SCHOOL. - The Law School of the University of Buffalo is unique in one respect: the lecturers, with one exception, are active practitioners, and with four exceptions serve without compensation. The board comprises many of the ablest and busiest men in the city, and they make it a point to prefer their lecture engagement to professional business except when they are actually engaged in trials. The result is thus described in a recent circular issued by the board of control :

"In the course of the arguments at Albany it was discovered through the report of Mr. Franklin M. Danaher, Secretary of the State Board of Law Examiners, that of the seven law schools in the State, the Buffalo Law School stands at the head in point of standard; that in percentages of successful examinations taken for admission to the Bar, our school is first, and a larger proportion of our graduates are successful than of any school. This fact itself was a powerful argument against any proposed change in our system of instruction, and it indisputably established the truth that instruction in law is best secured from lawyers in the active practice of their profession."

DEFINITIONS. We have recently gleaned a few legal definitions, new and old:

At. A meeting of supervisors in a building 100 feet from the court house is not at the court house." Harris v. State, 72 Miss. 960.

Lottery. A horse-race for stakes is not a lottery. Matter of Dwyer, 14 Misc. 204.

Mineral Ore.. Granite is not a .. mineral ore," but it is a "mineral." Armstrong v. Lake Cham

plain Granite Co., 147 N. Y. 495. Museum. — A "museum may comprehend an exhibition of "living animals." Bostwick v. Purdy, 5 Stewart (Ala.), 505. The question was one of the necessity for procuring a license under a statute requiring a license for any exhibition of "any museum, wax works, feats of activity, sleight-of-hand or plays." Taylor, J., delivered a learned and interesting opinion, in which he traced the word to its Greek root" to amuse." The first museum, he says, was the Alexandrian library. He can see no difference between a collection of large animals and of one of small animals, nor can he see that there is anything

66

peculiarly deleterious" in the exhibitions specified in the act, nor any good reason why Mrs. Jarley should be taxed and Mr. Barnum go free. So Bostwick, who waged this qui tam action, took one hundred dollars to himself. It seems also that another act was passed by the Legislature, reciting the instituting of an action against one Baldwin for a similar unlicensed exhibition, and the meritorious services of Reuben Chapman, attorney-at-law, in procuring judgment therein against Baldwin, and giving Chapman twenty-five dollars for his services. This act the Court deem an indication that the Legislature meant to include menageries in the term "museum."

Peddler. A peddler is an itinerant vendor of goods which he carries with him and delivers. State v. Parsons, 124 Mo. 436; 46 Am. St. Rep. 457; State v. Lee, 113 N. C. 681; 37 Am. St. Rep. 649; State v. Moorehead, 42 S. C. 211; 46 Am. St. Rep. 719. Physician. A dentist is not a physician, who may prescribe liquor on Sunday. State v. McMinn, North Carolina Supreme Court, 24 S. E. Rep. 523. Nor a "practitioner of medicine" exempt from jury duty. State v. Fisher, 119 Mo. 344; 12 L. R. A. 799; People v. De France (Mich.), 28 L. R. A. 139.

Picture. It is held in People v. Ketchum, 103 Mich. 443, that a photographic negative is a "picture" within the meaning of a statute prohibiting the procuring of obscene pictures. But is a stereotype plate a print?

66

Prowl. This means "to rove or wander stealthily, as one in search of plunder." So where a magistrate issued a warrant against one on a deposition that a burglary had been committed, and that the accused was prowling" around the premises about the time, it was held sufficient to afford reasonable ground of belief that he was the guilty person, and that no action of false imprisonment would lie. Swart v. Rickard, 148 N. Y. 264.

Public Address. A sermon is a "public address" within a statute prohibiting public addresses on Boston Common. Com. v. Davis, 162 Mass. 510.

Yearlings. A yearling is "any animal in the

66

second year of its growth." Therefore an indictment for stealing a yearling" was held bad, in Stottenwerk v. State, 55 Alabama, 142. Non constat it might have been a baby. But in Berryman v. State, 45 Tex. 1, it was held that "as understood in common language a yearling' comes under the denomination of cattle," and so an indictment for stealing a "bull yearling" was good. The Century Dictionary defines it, “a young beast one year old or in the second year of its age."

THE VOLUNTEER BARBER.

Duffie v. Mathewson and others, 1 City Hall Recorder, 167.
With crown and trident,
And accents strident,

A pseudo-Neptune reared his head,
And planned to wrestle
With an English vessel

That off the Banks was heaving lead.

With frisky motion,

From out the ocean

Her side with all his rout he boarded,

And loud demanded

There should be handed

To him to drink of spirits hoarded.

Of every station

All made oblation

Of rum or eke of cognac, Except one duffer,

A British bluffer,

Who fought them till his face was black.

But quick they brought a
Tub of salt water,

And on a plank across, a-straddle,
They held him raving,

Gave him a shaving,

And tipped him in the brine to paddle.

That ruthless shaver

The usual favor

Of asking if the razor hurt,

Had quite omitted,
And all unpitied

The victim struggled sans his shirt.

Nor did he chatter
And ceaseless patter

Of weather and of politics,

Nor nostrums sell him,

Nor falsely tell him

His falling hair they soon would fix.

To such a scoffer

He made no proffer

Of" our sea foam" 66 or ocean spray," Nor tiresome wooing

To try champooing And things to stop his growing gray.

"The eighth general meeting of the Newcastle-uponTyne Law Students' Society was held on December 16. Mr. H. S. Mundahl, barrister-at-law, in the chair. The subject of debate was as follows: 'Mr. Kodak takes, without permission, a snapshot of a lady and a gentleman in a boat, under some trees. The gentleman has his arm round the lady's waist. This photograph Mr. Kodak is in the habit of showing to his bachelor friends who visit him at his chambers. Major Sprightley has for some time past been very suspicious of a certain Mr. Brown, who, he considers, is too attentive to Mrs. Sprightley. A Mr. Smith, in company with Major Sprightley, calls at Mr. Kodak's chambers one evening, and Major Sprightley is introduced to Mr. Kodak. Eventually Mr. Kodak shows his collection of snapshots, including that of the lady and gentleman in a boat. Major Sprightley recognizes his wife and Mr. Brown, and Mrs. Sprightley, when charged, has to I admit that she has carried on a foolish but innocent flirtation with Mr. Brown. Major Sprightley declines to cohabit any longer with his wife. Has Mrs. Sprightley a right of action against Mr. Kodak?' Messrs. E. C. Sanders and J.

W. Parrington opened in the affirmative, and Messrs. B. Townshend and S. D. Cole took the negative side. The following members also spoke: Messrs. Senhouse, Brown, Chapman, Lemon, Hadaway, and Brandling. The chairman having summed up the debate and reviewed the law on the point, put the question to the meeting, when it was decided by a majority of six that Mrs. Sprightley had a right of action against Mr. Kodak; but on a further motion being put as to whether she could recover damages from him, it was unanimously decided that she could not."

This would seem to be hard on the lady; she had a right to sue but not to recover! But it is probably explainable on the theory that on the first question the tribunal sat as a court, on the second, as a jury. It reminds us of that decision, in the New York Court of Appeals, that a wife had at common law right of action for the seduction of her husband by another woman, but that she could not maintain the action without joining her husband as plaintiff, because the damages belonged to him alone, and therefore the right was barren (in two senses).

NOTES OF CASES.

ANIMAL DEFAMATION. - There is a good deal of amusement in the law-books on the subject of defamation by likening one to a dumb beast. The latest authority on this point is to the effect that it is not necessarily libellous to call a man a hog. (There is a considerable class who esteem it no libel to call Shakespeare, Bacon.) Much depends on the context, for it may often appear that the charge was made only in a Pickwickian sense. In Urban v. Helmick, decided by the Supreme Court of Washington in July, 1896 (44 Pac. R. 747), it appeared that a publication referring to plaintiffs, who were hotel keepers, was as follows: "In some localities there are hogs, called business men,' that want it all. I believe in buying at home, and building up our own trade and town as much as possible; as the more business we do, the more money there is circulated at home." It was held that the meaning attributed to the word hogs" by the article itself did not render the publication libelous per se. But in Wisconsin, it has been actionable to call a man a hog. (Solverson v. Peterson, 64 Wis. 198; 54 Am. Rep. 607.) The exact charge there was that the plaintiff was an enormous swine, which lives on lame horses," i. e., the carrion of lame horses. The Court quite warmly said: "How could a man be lower, meaner, or more filthy than to have the character, habits and ways of a swine?"

46

The plaintiff is compared with this low and filthy animal to indicate that he has fallen to the very low est degree of human degradation, morally, intellectually, and physically. It was supposed that the prodigal had fallen to the very lowest condition, when he

became the associate of swine, and lived upon the same food." No wonder that the plaintiff bristled up! It will not answer to call one's neighbor "a frozen snake" (Hoare v. Silverlock, 12 Q. B. 624), for that plainly refers to the fable about ingratitude. “An itchy old toad" is quite objectionable (Vellers v. Mousley, 2 Wils. 403). So of "skunk" (Massuere v. Dickens, 70 Wis. 83 [although phrased in Latin]; Pledger v. State, ; nor to compare a lawyer to a bull or a goose (Baker v. Morfue, I Sid. 327). Nor to charge that a woman had been bitten by a cat and thereafter acted like one, mewing and posing to catch mice, etc. (Stewart v. Swift, 76 Ga. 280); nor to call an editor "a mouse most magnanimous," or "a vermin small " (Child v. Horner, 30 Mass. 510); nor to call one "a black sheep" (McGregor v. Gregory, 11 M. & W. 287; Barnet v. Allen, 3 H. & N. 38 1); nor to call a schoolmistress a “ dirty slut" (Wilson v. Runyon, Wright, 651); nor a man “a thieving son of a bitch" (Reynolds v. Ross, 42 Ind. 387); nor a thieving puppy" (Pierson v. Steorbz, Morris [Iowa], 136); nor a broker a "lame duck" (Morris v. Langdale, 2 B. & P. 284); nor a detective officer in making an arrest, "a big brute" (O'Shaughnessy, v. Morning Journ. Ass'n, 71 Hun. 47); nor an insurance company a “wild-cat company " (Delaware etc. Ins. Co. ข. Croasdale, 6 Hourt. 181), nor a scalper" a "whelp" (Mauget v. O'Neill, 51 Mo. App. 35).

66

On the other hand, in old England it was safe to call a justice "a logger-headed, a slouch-headed, and bursen-bellied hound" (1 Keb. 629), or an innkeeper a “ caterpillar" (Vin. Abr. "Act for Words," U. a. 34). And so, in the celebrated case of Tom Fenn's beer, it was held not actionable to say, that if the defendant should give his mare a peck of malt, and let her drink water, she would produce naturally as good beer as his. (Fenn v. Dixe, 1 Rolle, Abr. 58.)

In modern America it has been held not actionable to call a woman “a bitch ” (Shrinck v. Kollman, 50 Ind. 336; K. v. H. 20 Wis. 239), “although a very coarse and ruffianly expression," yet not equivalent to " prostitute."

In the celebrated Mezzara case (2 C. H. Recorder, 113) it was held libellous for an artist to append asses' ears to a portrait of a legal gentleman who sat to him and would not pay for the work.

RESTRAINT OF MARRIAGE. - Is it the policy of the common law to look with disfavor on the remarriage of widows? Such would seem to be the inference from Herd v. Catron (Tennessee Supreme Court, 37 S. W. Rep. 550), in which it was held that a condition in a will, that if testator's widowed daughter