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apply to other cases; that though the demurrer that the defendant is bound to establish the defense suggested would be a more reasonable course to beyond a reasonable doubt, and by the same measadopt, the law is that the objection may be raised ure of proof that would be necessary to convict the after verdict, and that a public nuisance is no ex- plaintiff if he was on trial upon an indictment ception to the general rule requiring the words charging that offense, is erroneous.

This rulwhich constitute the offense to be set out. We ing is contrary to the doctrine of Thurtell v. think that the decision of the Court of Appeal is Beaumont, 1 Bing. 339, which holds that the the correct one. And it might be said, in answer to defense that the plaintiff had willfully set firo the reason given in the American cases cited, that

to the premises must be as fully and satisfacthe purity of the records of the court ought not to torily proved as if the plaintiff were on trial on instand in the way of giving a person charged with dictment. Thurtell v. Beaumont is followed by an offense like the one here charged an opportunity Greenleaf (2 Greenl. Ev. 418), and by Taylor (1 of knowing what is alleged against him with cer- Taylor's Ev., 5th Ed., 97 a.), though it never retainty, which he cannot have in case the indecent ceived approval in the English courts. In many words are not set out.

American courts the doctrine has been repudiated

and that of the principal case followed. See Ellis v. The Supreme Court of Illinois, in the case of Saf- Buzzell, 60 Me. 209; Blaeser v. Milwaukee, etc., 37 Wis. ford v. People, decided on the 7th of June last, and 31; Elliott v. Van Buren, 33 Mich. 99; Jones v. Greaves, to appear in the 85th Illinois Reports, passed upon

26 Ohio St. 2; Knowles v. Scribner, 57 Me. 497; Scott a novel question in the law (relating to receivers.

v. Home Ins. Co., 1 Dillon's C. C. 105; Huchberger v. In this case an injunction was granted by a State

Merchants' Fire Ins. Co., 4 Bissel's C. C. 265; Washcourt and served on a railway company, restraining ington Ins. Co. v. Wilson, 7 Wis. 169; Blaeser v. M. it and its servants from obstructing a public avenue

M. M. Ins. Co., 37 id. 31; Rothschilds v. Amer. in a city, with its trains. Thereafter a receiver of

Cent. Ins. Co., 62 Mo. 356; Ætna Ins. Co. v. Johnthe company was appointed by a Federal court in a

son, 11 Bush, 587; Hoffman v. W. M. & F. Ins. Co., proceeding instituted therein. The Illinois court

1 La. Ann. 216; Wightman v. Same, 8 Rob. 442. A decided that the injunction was binding on the re

like doctrine has been adopted in reference to other ceiver, and that he would be punishable for con

subjects. In Gordon v. Palmer, 15 Gray, 413, it was tempt in disobeying the mandate of the writ. The

held that, in an action on a promissory note, the court held that a receiver of a railway company,

defense that the note was obtained by false and appointed to manage its business, is legally the agent

fraudulent representations might be sustained by a of the company, though under the direction of the preponderance of evidence, as in other civil cases,

and that it was not incumbent on the defendant court appointing him, and that such court in mak

to establish it by proof beyond a reasonable ing the appointment has no power to enlarge or

doubt, although the defense was based on restrict the corporate powers conferred on the cor

fraudulent representation, such

charge of poration by its charter; that the receiver is bound by the charter to the same extent that the directors might be the subject of a criminal prosecution.

In Bradish v. Bliss, 35 Vt. 326, the action was of the company are, and that, if the company is un

in trespass for burning the plaintiff's building, der a legal obligation to do or not to do a certain act, the same obligation will devolve upon the re

and the evidence shows that the defendant, if ceiver. To the same effect, see St. Joe, etc., R. R. guilty of trespass, had set fire to the building deCo. v. Smith, 16 Alb. L. J. 408. These conclusions signedly, and was guilty of the crime of arson. are so sensible and well put that they will receive

The court, nevertheless, held that, it being a civil general approval. A receiver has, by virtue of his

cause, the issue must be determined by the fair preposition, no greater rights than the person whose ponderance of evidence. A similar decision was place he takes, and if he undertakes to exercise

made in Munson v. Atwood, 30 Conn. 102, which was other rights the official position he holds does not

an action on a statute which gave the right to reshield him.

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 NOTES OF CASES.

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

Bissel v. Wert, 35 Ind. 54. decides that in an action on a policy of insurance See, also, G. W. Railway Co. v. Rimell, 18 C. B. against loss by fire, where the defense is that the 575; Metcalf v. L. & B. & 8. C. R. Co., 4 C. B. (N. property insured was willfully burned by the assured, S.) 207; Vaughton v. L. & N. W. R. Co., L. R., 9 the rule in civil, and not in criminal cases, as to the Exch. 93; McQueen v. G. W. R. Co., 'L. R., 10 Q. quantum of proof, applies, and a charge to the jury

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- quite sufficient to have led captive any other disRUFUS CHOATE.

ciple — left him to the free use and development of X.

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

wholesome relation appears between the tone, comshall refer to his attitude in respect to some of the plexion and sympathetic power of his earlier and of subjects to which he gave attention. The reader his later speeches. Each bore the impress of his may thus be brought into nearer relations with him, mental peculiarities, upon each his superscription and have a clearer conception of the spirit which and his seal. So it appeared to Chief Justice Perley, inspired the lessons he taught. In the record Mr. who entered college while young Choate was there, Choate has left, we can clearly discern his love of and knew him up to the time of his death. In the nature and of all that is good and true and beauti- eulogy on Mr. Choate, delivered at Dartmouth in ful, the sagacity and prudence that guided him in July, 1860, the Chief Justice said: "He was always his public services, and the tenderness and cheerful remarkable for the same brilliant qualities which ness that made his home-life as a perpetual summer. distinguished him in his subsequent career. To If, without such aid, his opinions, the part he took those who knew him and watched bis onward course, at the bar, in politics and legislation, could be stated | little change was observable in his style of writing without blur or distortion, he would still seem re- and manner of speaking except such as would mote if not inaccessible ; the character imposing, naturally be required by subjects of a wider range, but the subtle aroma that sweetened the life would and by more exciting occasions." elude the apprehension. It would be as when we In this relation, and before taking up the particusurvey the range of hills, but do not find the secret lar subjects to which we have referred, we are led springs that nurse and beautify the valley below, or to notice Mr. Choate's taste as having been delicate, draw the landscape with correct detail, yet give no exacting and severe. Like his style, owing much to hint of the blending lights and shadows that should nature and organization, it was refined by study; so qualify the picture.

cultivated that it grew with his growth, ripened with In previous pa pers we have referred to Mr. his maturity. Without assuming to assign to each Choate's attention to the choice of words, and to co-operating faculty its relative influence, or to inhis study of the great masters of eloquence. We quire how much the ripened fruit had been nourished have, also, casually referred to his style, and only by faith, principle or judgment, it may be said that advert to it now, because the quotations to be made his taste served him in every office of his life -- in may seem to invite attention to the subject. The manners, conversation, in the deference due to others reader will notice a marked distinction between his and in the respect due to himself, in the selection of style in speaking and in writing. In his addresses subjects most worthy of study, and in the moral he was copious, reiterative, and much given to illus- tone of those principles which he sought by the trations helpful to the argument; as a writer, his most earnest and delicate persuasion to implant in style was terse, simple and severe. In neither did the public mind. How highly be valued that taste he check the onward flow of discussion to crown his and its culture clearly appears. A man of the most thoughts with flowers; his most brilliant imagery delicate sentiments, his nature, as was said of Racine, does not seem to have been used as mere embellish- "a living fountain of enthusiasm,” his taste and ment, but came to his aid as naturally as the more judgment were in strict alliance. He was tolerant simple forms of expression. The visions of beauty in his opinions of others, severe in his estimate of in his mind became articulate in those forms, and himself. He recalls with fidelity, and as if for his the musical tone and cadence could no more be imi. own encouragement or admonition, his studies in tated than could the melody of the murmuring various departments; at times, seems hopeful, almost stream. The reader will also notice that his lan-glad, in view of what he perceives he may attain; guage, when rising to the fervor of tropical heat, at other times, he seems sad, as if his studies had was tempered by an earnest and constant attention been partial or inadequate. As an instance, after to practical affairs. Thus did it seem to us when he had garnered up in his mind and heart such we listened to him, or rather, tried to study him, in wealth of learning as only one so receptive and detwo great cases in which his arguments were con- voted could acquire, we find him saying : tinued for several days.

“I have written only this translation of QuinWith an additional observation, we leave what tilian since Saturday, professional engagements have was special in Mr. Choate's language and style to hindered me ; but I have carefully read a page or the attention of a friend distinguished for his learn- two of Johnson's Dryden, and a scene or two of ing and judgment. We have, then, simply to add Antony and Cleopatra every morning - marking any that Mr. Choate's devoted study of the great mas felicity or available peculiarity of phrase — have ters of speech, in other languages and in our own launched Ulysses from the Isle of Calypso, and


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brought him in sight of Phaeacia ; kept along in

Of this, Chief Justice Chapman gives an Tacitus, and am reading a pretty paper in the illustration, for which we are indebted to Professor “Memoirs" on the old men of Homer. I read Brown. The Chief Justice says: Homer more easily, and with more appreciation, “Mr. Choate's conversational power was scarcely though with no helps but Cowper and Donnegan's less remarkable than his forensic power. It was, by Lexicon. Fox and Canning's Speeches are a more no means, limited to the subject of oratory. Indeed, professional study, not useless, not negligently pur- so far as my acquaintance with him is concerned, he sued. Alas, alas ! there is no time to realize the never made that a prominent topic of conversation; dilating and burning idea of excellence and elo- but I recollect one of his conversations on eloquence. quence inspired by the great gallery of the immor. He was talking of Burke's speeches, of which he tals in which I walk !"

was known to be a great admirer, and remarked to Again, he says:

How difficult it is to arrest these a friend of mine who was extolling Burke above all moments, to aggregate them, to tell them as it were, other men, that he thought on the whole that the to make them day by day extend our knowledge, most eloquent and mellifluous talk that was ever put refine our tastes, accomplish our whole culture !” together in the English language was the speech of

His solicitude as to the improvement and preser- Mr. Standfast in the river. I went home and read vation of his taste is freely confessed. Thus, he the speech soon afterward, and I confess I appresays:

ciated John Bunyan's eloquence as I never had done "I have been long in the practice of reading daily before.” some first-class English writer, chiefly for the copia Yet, it will appear that this man, so delicate, reterborum, to avoid sinking into cheap and bald flu- fined, emotional, with such a keen sense of what was ency, to give elevation, energy, sonorousness, and sweet and beautiful in life, sentiment, and study, refinement, to my vocabulary. Yet with this object was not the less able to deal with stern and sober I would unite other and higher objects — the acqui- subjects, to enter into and appreciate the trials and sition of things — taste, criticism, facts of biography, struggles of those who, like the earlier settlers of images, sentiments.

this country, labored in obscurity, with no embellishIn 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

J. N. of authorities; the constant use of the pen; the

The Hon. Geo. W. Nesmith, late one of the translations, the speculations, ought to constitute an

Justices of the Supreme Court of New Hampshire, admirable exercise in reasoning, in taste, in rhetoric sends me the following letter:

J. N. as well as history.”

FRANKLIN, January 31, 1878. Again, after referring to a course of reading con- MY DEAR SIR– I confess it would be a hopeless task sidered too desultory, he states the benefits thus: for me to delineate the character of Rufus Choate.

“No doubt taste has been improved, sentiments You have given, in your own finished style, a concise, enlarged, language heightened, and many of the yet comprehensive view of what he was and did, and

you have been aided by those who saw and heard him effects, inevitable, insensible and abiding, of liberal

more frequently than myself. Yet I will place my culture, impressed on the spirit.”

memory at your service. And again, later, as to his plans when traveling I knew him well while at college, Our acquaintance abroad, he says:

commenced in 1816. He was one year in advance of ". Then I must get, say half an hour a day, for

me in collegiate standing, and in age. I belonged to Greek and Latin, and elegant English. For this

the same literary society with him, for three years, and

remember with pleasure his leadership there. During purpose, I must get me an Odyssey and Crusius, and

my last year at college he was a tutor. a Sallust, and some single book of poems or prose, After graduation we lived a hundred miles apart. I say Wordsworth. This, lest taste should sleep and frequently saw him when I visited Boston, had interdie, for which no compensations shall pay !” views with him, and occasionally heard him in courts In speaking of Mr. Choate's taste as having been of justice. I was with him in the Whig Presidential

conventions at the nominations of Gen. Taylor, at severe as well as delicate and exacting, we were con

Philadelphia, and Gen. Scott, at Baltimore. At both scious of using a word of high commendation. If conventions we supported Mr. Webster as a candidate. we had ever heard an improper word from his lips I afterward heard his famous eulogy upon Mr. in the informal interviews to which we were kindly Webster. A short time before his death I had an inadmitted, or had found in his writings an expres- teresting conversation with him, in which he ansion having the slightest immoral taint, we should

nounced the unwelcome intelligence that his physic

ians had notified him to quit all labor and to take a sea have repressed the eulogy. But, happily, without

voyage as affording the only hope of recruiting his a shade of mental reservation, we can let the word feeble bodily frame. stand. In another sense, and, perhaps, not to the The only reminiscence of his college life which ocfancy of some sentimental scholars, was his taste curs to me as not already narrated by your correspond


* *

ents, was an amusing practical joke perpetrated by to do manly work for ourselves and others. The strong him and some others in the exchange of potatoes for man channels his own path, and easily persuades apples in the sole remaining sack in which the latter others to walk in it. * When Washington took were offered for sale by a farmer of the name of John

command of the American army the country felt as if son, from Norwich, and then getting Johnson to offer our forces had been doubled. So when Chatham was them for sale at the college. A purchase was made by appointed Prime Minister in England great confidence the students who had been notified of his approach by was created in the government.

After Gen. Choate, and then, upon opening the sack, an outcry Green had been driven out of South Carolina by Cornraised against Johnson for attempted imposition. Pro- wallis, having fought the battle of Guilford Court testations of innocence were met with ridicule, and House, he exclaims 'I will now recover South Carolina, suggestions of the interference of the Evil One. or die in the attempt.' It was this stern mental reChoate, standing in front of Johnson, and amused at solve that enabled him to succeed. * * Every stuthe perplexity depicted upon his countenance, ex- dent should improve his opportunities to cultivate claimed “ Would that Hogarth were here!” Johnson bis powers. He owes this duty to his friends, his incaught at the name, with suspicion, and afterward structors, and his country. Our learned men are the offered to reward us if we would tell where Hogarth hope and strength of the nation. They stamp the was to be found.

epochs of national life with their own greatness.' One of Choate's most eloquent and effective speeches They give character to our laws and shape our instituwas delivered in his senior year at college, in the

tions, found new industries, carve out new careers for autumn of 1818, while acting as president of our literary the commerce and labor of society; they are, in fact, society. It was upon the occasion of the introduction the salt of the earth, in life as well as in death. Conof many members from the Freshman class. The

stituting as they do the vital force of a nation and its custom of presidents of the association had been to very life-blood, their example becomes a continual make a brief formal speech setting forth the objects of

stimulant and encouragement to every young man the society and the duties of its members, and that who has aspirations for a higher station or the higher was all we expected. We were surprised by a well pre

honors of society. Now, my brethren and young pared and eloquent address of considerable length. | friends, we beseech you to strive earnestly to exAt that time he was in vigorous health and full of cel in this honorable race for just fame and true glory; energy. The silvery tones of his voice, resounding and in your efforts to mount up upon the fabled ladder through our little Hall, kept the assembly spell-bound do not be found, in the spirit of envy, pulling any while he discoursed upon those elements of character above you down, but rather, in the exercise of a more essential to the formation of the ripe scholar and the liberal spirit, holding out a helping hand to a worthy useful citizen. The late Chief Justice Perley was one brother who may be struggling below you. Be assured of the young men then made a member of the society you exalt yourself in proportion as you raise up the of “Social Friends." In after life I often heard him

humbler ones." allude in terms of high commendation to that perform- The second part of his discourse was specially de

On the following day I undertook to note voted to the pleasure and rewards derived from an down in a little scrap-book some of the thoughts to intimate acquaintance with classical learning. His which he bad given utterance, although I could not suggestions were valuable and impressive, and urged reproduce the brilliant language in which they were home upon our attention with great rhetorical force. expressed. I give some of those memoranda:

If this speech had been published it would have fur“To make the successful scholar, patient, constant, nished the young student with a profitable guide in well-directed labor is an absolute requisite. *

his pursuit of knowledge. must aim at reaching the highest standard of excel- Mr. Choate has been rightly described to you as an lence of character. Good mental endowments must be original nondescript. He was like no other person in allied to conscience, truthfulness, manliness. In the his style of writing, or in his oratory. He perceived affairs of life brains are essential, but truth, or heart, quickly and acquired rapidly. He possessed a retent

* Not genius so much as sound princi- ive memory, appropriating to himself readily the ples, regulated by good discretion, command success. thoughts of others. To his able reasoning powers he We often see men exercise an amount of influence out united an imaginatiou “richly perfumed from Carof all proportion to their intellectual capacities, be- mel's flowery top," powerful, soaring, unbounded. He cause, by their steadfast honesty and probity, they

seemed to have been fashioned for a poet. He recommand the respect of those who know them.

marked to me one day that he loved poetry, but poetry George Herbert says ‘A handful of good life is worth did not love him. As to temper he was always indula bushel of learning.' Burns' father's advice to his gent and kind, speaking evil of none. In his daily son was good –

intercourse with others, he was courteous and liberal

to a fault. He was naturally geutle, but when pressed He bade me act the manly part, Though I had ne'er a farthing,

hard was capable of inflicting blows that left an imFor, without an honest, manly heart,

pression. I once heard him deal with a bad witness in No man was worth regarding.'

court. He did not call him hard names, but covered

him over with an oily sarcasm so deep that the jury A critio said of Richard Brinsley Sheridan, that if

did not care to look after him. In other words, tho he had possessed reliableness of character he might

witness was slain politely, and laid out to dry, have ruled the world, but, for want of it, his splendid

Not far from the year 1845, the Hon. Levi Woodgifts were comparatively useless. Burke was a man

bury was invited by the literary societies of Dartof transcendent gifts, but the defect in his character

mouth College to deliver an oration at the annual was want of moral firmness and good temper. To

commencement in July. Going thither I had a seat succeed in life we must not only be conscientious; we

in the stage coach with Mr. Webster, Mr. Woodbury must have also energy of will, a strong determination

and Mr. Choate. A good opportunity was presented


* Не

more so.

of witnessing their conversational powers. Mr. Web- to be governed by the original limitation, which had ster and Judge Woodbury had for many yeårs resided expired before this indictment was found. Upon a in Portsmouth, N. H., and topics relative to men and motion to strike out defendant's plea of the statute scenes there were much discussed by them. Of course of limitations, Clinton, Ch. J., of the Superior Court I could not but be an interested listener. The early of Buffalo, held that the amendment applied to offenhistory of our State, the character of the settlers, their ses committed previous to its passage, which were not leaders, their privations and sufferings by reason of then barred by the original statute. The indictment Indian warfare, the character of our early governors, was afterward sent to the Court of Oyer and Terminer, and the growth of the State, with historical reminis- and Daniels, J., upon a motion to direct a verdict of cences and anecdotes, were introduced. I was sur- not guilty, held the same way. But the General Term, prised to find that Mr. Choate was so familiar with our in an opinion delivered by Mullin, P. J. (Talcott, J., early history as to give dates and events with accuracy. concurring in result, and Jas. C. Smith, J., dissenting), By easy transitions they passed to the judiciary of the held that the amendment should not be construed to State and the members of the bar, discussing their take in offenses committed previous to its passage, respective merits. On these local subjects the New though not then barred under the original limitation. Hampshire men, of course, had the vantage ground. We propose to examine this question and to show Wishing to give a new direction, therefore, to the con- that, upou principle and upon the authorities, this Fersation, I asked Mr. Choate as to his later reading. decision cannot be sustained. He answered that he bad recently been occupied in the The principle is general, if not universal, that all perusal of Milton's prose and poetry. Mr. Webster laws, civil or criminal, are to be construed as furnishsaid to him, “As you are so recently out of Paradise, ing a rule for future cases only, unless they contain will you tell us something about the talk that Adam and language unequivocally and certainly embracing past Eve had before and after the fall ?” Mr. Choate asked, transactions. 24 N. Y. 20. Or, in other words, stat“Do you intend that as a challenge to me ?' Webster utes are to be construed to operate prospectively, and answered, “Yes, I do." Choate hereupon recited not retrospectively. “Retrospective" is defined, promptly portions of the addresses of Adam to Eve, “Having reference to what is past; affecting things and Eve to Adam, much to the edification of his audi- past." And a retroactive or retrospective law or ence. Webster rejoined with the description of the statute is defined to be one which operates to make conflict between Gabriel and Satan from the sixth criminal or punishable, or in any way expressly to afbook of “Paradise Lost.” His recitation was received fect, acts done prior to the passing of the law. Webst. with applause. John Milton himself, had he been And every statute which takes away or in pairs vested present, would have been satisfied with the performers rights acquired under existing laws, or creates a new on that occasion. We have seen celebrated actors on obligation, imposes a new duty, or attaches a new distbe stage, but none before like those in the stage. ability in respect to transactions or considerations

At my last interview with Mr. Choate in Boston, after already past, must be deemed retrospective. 2 Gall. alluding to his incessant and severe labor at the bar

139. for many years, he said he was literally worn out, and It has been said that a statute may be construed to added in a melancholy way, “I have cared much more operate retrospectively, if vested rights are not therefor others than for myself; I have spent my strength by impaired or affected. But Mr. Austin says (Jurisp., for naught." I reminded him that he had gained high vol. 2, 887-9) that the epithet “vested," as applied to reputation in his profession, and also as a scholar, and a right, is superfluous or tautological. “Every right, this was his reward. He said, “We used to read that properly so called, is of necessity present or vested: this kind of fame was but an empty bubble; now I that is to say, it presently resides in, or is presently know it is nothing else." Suoh was Mr. Choate's esti- vested in, a present and determinate party, through mate of human glory when consciously near the termi- the title, or investitive fact, to which the law annexes nation of his eventful and honored life. He added, it as a legal consequence or effect. When we oppose "My light here is soon to be extinguished. I think a vested or present, to a future or contingent right, often of the grave. I am animated by the hope of that we are not opposing a right of one class to a right of glorious immortality to be enjoyed in a kingdom where another class, but we are rather opposing a right to sin and sorrow cannot come."

the chance or possibility of a right. A right may be 1 remain, very respectfully, etc.,

present or vested, although the right to enjoy it, or GEO. W. NESMITH. exercise it, be contingent or uncertain. Or, in other

words, a present and certain right to possession is not RETROSPECTIVE CONSTRUCTION OF STAT

of the essence of a present and certain right." And

the principle of construction above stated is just as UTES OF LIMITATION.

applicable to contingent rights, or to chances or possi

bilities of rights, as to vested rights, or rights properly THE PEOPLE V. LORD, 12 Hun, 282.

80 called. To deprive a man of an expectancy, by conHE defendant committed the offense of bribery in struing a statute retrospectively, were just as perni

1871, and as the law then stood an indictment“shall cious as to deprive him of a right without the same be found within three years after the commission of reason to justify tho construction. By contingent the offense." But in 1873, before the limitation had rights, we mean rights to property. An expectation expired, the statute was amended by substituting the of acquiring a defense to an action or indictment, by word “five" for the word " three.” The indictment reason of neglect to sue or prosecute the same within was found in 1875, within five years after the commis- the time prescribed by law, is not an expectant right sion of the offense. The defendant contended that to property, and is not, therefore, within the meaning the amendment of 1873 should be construed to apply of the rule. Before proceeding to show the applicaonly to offenses committed subsequent to its passage, tion of the rule of construction above mentioned to and that all offenses committed previous thereto were statutes of limitation, it should be observed that the


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