prisoned, or deprived of his freehold, his liberties, or privileges, or exiled or outlawed, or otherwise destroyed, but by the judgment of his peers and the law of the land." This provision, we presume, exists in the constitution of Maryland, and the infamy of distress for rent exists in her law. It is said that large bodies move slowly. In American jurisprudence the rule is reversed: the smallest States stick longest to the old abominations. Maryland still has distress for rent; Delaware has the whipping post, and Rhode Island was the last American State to abolish imprisonment for debt. MR. HENDRICKS' ADDRESS AT THE YALE LAW SCHOOL.-At the recent commencement of the Yale Law School, the Hon. Thomas A. Hendricks, Vice President of the United States, delivered an oration on "The Supreme Court of the United States and the Influences that have contributed to make it the Greatest Judicial Tribunal of the World," One rises from the perusal of it with something of a feeling of disappointment. If it had been pronounced by any one other than a statesman of reputation, holding a high official station, it would not be regarded as a very strong performance. There is but one idea in it, and that is that the Supreme Court of the United States, by reason of the fact that the decision of great constitutional questions is committed to it, wields more power than any judicial tribunal in the world. It is couched in a tone of such excessive adulations, that, if Mr. Hendricks had not a character as a lawyer which forbids such a suspicion, one might think that he was trying to get himself rectus in curia, or, to translate it into American, "solid with the court." There is not in it one word of criticism, nor any suggestion of improvement, except the hint that it was perhaps unwise for the framers of the constitution to leave it to Congress to fix the number of judges. Every one can see that it was unwise. The power of the Congress, with the aid of the President, to pack the court for partizan purposes exists and has been exercised. It can be done almost as effectively as the "Government" in England can change the political complexion of the House of Lords by creat ing new peers. The court and its judges in the main deserve high eulogy. But it cannot escape attention that it rendered the Dread Scott decision, which the American people reversed upon a hundred battle fields; that, the constitution having empowerd Congress to provide for the coining of money; the court decided, a year ago, that Congress could authorize the coining of it out of green paper; and that but a few weeks before this oration was pronounced, the court, by a bare majority, rendered a monstrous decision, which places the most venerable State in the Union at the feet of the Federal district judges. Mr. Hendricks' idea, carried out as it is not in his oration, would suggest the remodeling of the court, so as to lop off all that portion of its jurisdiction which might as well be committed to other appellate tribunals, and leave to it only the decision of constitutional questions and questions of public law. The truth is, our Federal judicial machinery has become totally inadequate for the work it has to do. We ought to have, besides the Supreme Court of the United States, five special courts of appeal: one for civil causes at common law; one for equity causes; one for admiralty, and maritime causes; one for patent causes; and one for criminal causes. The Supreme Court ought to be clothed with a larger superintending jurisdiction over inferior tribunals. It ought to be able to reach some of the abuses in those tribunals, like railway receiverships, which go unredressed, and which smell to heaven. NOTES OF RECENT DECISIONS. MORTGAGE [ACCOUNTING.]-PRINCIPLES ON WHICH A MORTGAGEE IN POSSESSION MUST ACCOUNT IN EQUITY.-In Booth v. Baltimore Steam Packet Co.,3 the Court of Appeals of Maryland, in an opinion delivered by Alvey, C. J., state the principles on which an account in equity will be stated between a mortgagee in possession and the mortgagor, as follows: "As between the mortgagor and mortgagee, where the latter is in possession in the acknowledged character of mortgagee, the prin 3 63 Md. 39 (Adv. Sheets.) ciples of the account are plain and well defined, and are applied for the mutual benefit of both parties. But where the possession is held adversely to the mortgagor, with denial of the right of redemption, the principles of the account are quite different, and are applied with more or less rigor against the wrongdoer, according to the circumstances of the case. In the ordinary case for redemption, where the mortgagee is in possession, acknowledging his true relation to the property, he is required to account for all issues and profits thereof, so that they may be applied, after deducting all reasonable expenses and allowances, towards the discharge of the debt and accrued interest. The usual decree in such cases, against the mortgagee in possession, is for an account of what he has received, or what he might have received withont his own wilful default. The duty of the mortgagee in possession is well stated by Lord Justice Turner, in Kensington v. Bouverie," where he says, a mortgagee, when he enters into possession of the mortgaged estate, enters for the purpose of recovering both his principal and interest; and, the estate being, in the eye of this court, a security only for the money, the court requires him to be diligent in realizing the amount which is due, in order that he may restore the estate to the mortgagor, who, in the view of this court, is entitled to it. It is part of his contract that he should do so. See also Mayer v. Murray.6 By taking possession the mortgagee assumes the duty of treating the property as a provident owner would do. He is bound to keep it in good ordinary repair, or, as some of the cases put it, to keep it in necessary repair. Godfrey v. Watson; Sandon v. Hooper. And for all such proper or necessary repairs placed upon the property by the mortgagee he is entitled to receive allowance in the settlement of his accounts, and the amount so allowed will be added to the principal of the mortgage debt, if not liquidated by the rents and profits charged. Such are the principles af 4 Mayer v. Murray, 8 Ch. Div. 424, 428; 2 Fisher on Mort. (3d. ed.) 943. 7 De G., M. & G., 134, 157. • Supra. 73 Atk., 518. 8 6 Beav., 249. 9 Godfrey v. Watson, supra; Moore v. Cable, 1 John. Ch. 388. accounting as been the mortgagor and the mort gagee in possession, where the character of mortgagee is acknowledged by the latter. But where the mortgagee in possession repudiates his character and true relation to the property, and claims to hold as real, absolute owner, and denies all right of redemption, he renders himself liable to be treated as a wrong-doer, and as having acted in fraud of the rights of the mortgagor. In such case, it is an attempt to pervert a transaction from its real nature and design, and to give it an effect contrary to the real intention of the parties; and such an attempt is stigmatized by a court of equity as fraudulent.10 And the consequence attending such attempted perversion of the transaction is most serious to the mortgagee. He thereby disentitles himself to be treated with the favor of a mortgagee in possession as such, but is treated as a wrong-doer from the time of the disclaimer or repudiation of his true character. As an authority for, and in illustration of this principle, we may refer to the case of the Incorporated Society v. Richards.11 In that case the Chancellor, Lord St. Leonards, was pressed to give to the defendant the advantages of a mortgagee, in an ordinary suit for redemption, to which he replied: "This is a peculiar ease, and cannot be treated as the ordinary case between mortgagee and mortgagor. Here you set up a title adverse to the owner; and when à creditor denies his character as such, and claims as owner, I cannot allow him to fall back on his original characacter of creditor, as if he had never departed from it. I will never allow a party, who has put the owner at arm's length, to turn round, when defeated, and claim all the benefits attached to the character of a fair creditor.' The same principle was adopted and applied in the decision of the case of the Bank of Australasia v. United Hand-in-Hand Co,,12 by the judicial committee of the privy council. In that case it was held that because the mortgagee set up title to the mortgaged property adverse to the mortgagor and in denial of the right of redemption, he lost the immunities of an ordinary mortgagee, and was held to account as for a wrongful possession." 10 Russell v. Southard, 12 How, 148. 11 1 Dr. & War. 334. 13 4 App. Cas. 391, 408. WAREHOUSE RECEIPT. [MISDEMEANOR.] RECEIPT FOR ONE'S OWN GOODS TO REMAIN IN HIS OWN POSSESSION NOT A WAREHOUSE RECEIPT.-A statute of Maryland makes "bills of lading, warehouse, elevator, or storage receipts" negotiable; prohibits the delivery of the goods for which such instruments are issued, except to the party to whom they are issued, and makes a violation of the prohibition a misdemeanor. 13 In State v. Bryant,14 the Court of Appeals of Maryland hold that the following instrument was not embraced within the terms of this statute: "No. : Woodwardsville, Md., Nov. 2nd, 1883. Received on storage, in my canning house, from E. B. Mallory & Co., seventeen hundred and twenty cases 3X tomatoes, my own packing. Deliverable to order of E. B. Mallory & Co., only on production of this receipt, properly indorsed. 188-. A. S. BRYANT & BRO." Just why the court did so hold is not made clear by the opinion. The idea seems to be that the statute was intended to apply only to receipts issued by persons engaged in the business of carrying or storing goods for others. But it should seem that if the legislature intended that the meaning of the words should be thus restricted, it would have said so. It may be very necessary for a man who makes goods and who keeps a warehouse in which he stores them, to borrow money on a pledge of them; and why, in order to issue a valid statutory "storage receipt" for them should be required to carry them off to another man's warehouse, unless the statute says so? If a man has a warehouse or a storehouse, and issues such a receipt for goods to a man who advances money on them, why does he not make himself a warehouseman pro hac vice, and why is not such a receipt a warehouse receipt? The Maryland court seem to think that some dreadful thing will happen if the statute is read so as to embrace that which is within the literal meaning of its terms; but the Kentucky legislature did not think so when they made their statute expressly extend to such a case. "Such a construction," says Robinson, J., in giving the opinion of the Maryland court, "which declares that no sale of personal property of which the vendor remains in possession, shall be valid 15 13 Md. Act of 1876, ch. 262, § 1. 14 63 Md. 66 (adv. sheets). 15 See Cochran v. Ripey, 13 Bush, (Ky.) 495. except as between the parties, unless by a bill of sale or mortgage duly executed and recorded; and would destroy the safeguards, which the law has wisely thrown around the sales of personal property, for the protection of purchasers and creditors. No act ought to be construed as making so sweeping an innovation, unless the intention of the legislature is expressed in plain and unambiguous terms." Suppose it does repeal the previously existing law relating to sales of personal property, what then, so long as it is done to facilitate commerce? The Maryland court do not point out wherein it would destroy any safeguards which the law has thrown around the sales of personal property.16 It was a weak opinion, and Alvey, C. J., dissented. 16 The Maryland court say that the following cases do not support the contrary conclusion: Greenbaum Bros. & Co. v. Megibben, 10 Bush, Ky. 419; Cochran & Fulton v. Ripy, Hardie & Co., etc., 13 Bush, 495; Bradwell v. Howard, 77 Ill. 305; Price v. The Wisconsin Marine and Fire Ins. Co., 43 Wis. 267; Merchants & Manufacturers Bank, etc. v. Hibbard, 48 Mich. 123; Van Schoonhoven v. Curley, 86 N. Y. 187; Tiedeman v. Knox, 53 Md. 614. GRAND JURORS AS WITNESSES.— STATUTORY PROVISIONS. The question as to the competency of grand jurors as witnesses, concerning matters before them, is one that admits of a wide range of discussion; but in this paper the discussion will be limited, strictly, to the effect of statutes which enumerate the cases in which grand jurors may be called as witnesses. At common law a member of the grand jury was not permitted to testify as to what had been the testimony of witnesses examined before them; and under the earlier decisions of the country the oath of the grand juror was regarded as enjoining the strictest secrecy, but later decisions have modified this rule to a great extent. It is the burden of this article to maintain the conclusion, that when statutes prescribe the case or cases in which grand jurors may testify, that they can do so in no other.1 1 Thompson & Merriam on Juries, 745; Spratt v.State 8 Mo. 274; State v. Bebee, 17 Minn. 241; Re. Pinney, 27 Minn. 281; State v. Gibbs, 39 Iowa 318; Beam v. Link, 27 Mo. 261; Tindle v. Nichols, 20 Mo. 326; People v. Hulbut, 4 Denio 135; Ex parte Sontag, 5 Crim. Law "Some of the earlier decisions in this country," says a learned law editor, "would seem to indicate a disposition to prevent any disclosure, by a grand juror, of what a witness had testified in his examination before the grand jury; or, where a statute permitted such disclosure in any case, to construe the ⚫ statute in the strictest manner.' 12 It is a matter worthy of note that statutes of the several States that now have statutes upon this subject at all, are nearly, if not quite, the same in phraseology and are the same in meaning and effect. The Iowa statute is a fair sample of all the statutes upon the subject. The Iowa statute has a section in the usual form enjoining secrecy. In State v. Gibbs, a grand juror was called to testify, in chief, as to statements of Gibbs made before the grand jury of which the witness offered was a member. Justice Miller delivering the opinion of the court, after a careful examination of the cases and referring to the statute says: "The❘ statute also provides for the only disclosure a grand juror is permitted to make of the proceedings of the grand jury. He may be required to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or, to disclose the testimony given before them of a witness upon a charge of perjury against him. Code. Sec. 4285. This statute provides the only occasions upon which it is lawful or permissible for a grand juror to disclose the testimony of a witness given before that body." In Pindle v. Nichols," the action was for slanderous words spoken by the defendant of and concerning plaintiff's wife. The alleged slander consisted in the statement that the plaintiff's wife, as a witness before the grand jury, had sworn falsely in a matter under investigation. The defendant introduced grand jurors to prove the truth of his statement, and the pre Mag. 384, s. c. 1 West Coast |Rep. 588; Ruby v. State, 9 Texas App. 353. 21 Crim. Law Mag. 586. See note. 3 McClains Annotated Statutes (1880) Sec. 4285. "A member of the grand jury may be required by the court to disclose the testimony of a witness examined before them for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or, to disclose the testimony given before them by any witness upon a charge against him of perjury. 4 39 Iowa, 318. 20 Mo. 326. siding judge required them to testify against the objection of plaintiff. The court after citing the statute says, "Thus stands the statute law. In what cases, then, can a grand juror be lawfully required to testify as a witness in relation thereto? Such as are embraced in the 15th section cited above, and such only. This 15th section specifies these cases and the bare specification excludes all other cases not enumerated. These are the cases where a grand juror may be lawfully required to testify and are the only cases. In re Pinney, the testimony of a witness, who was a member of the grand jury that found the bill against defendant was excluded on the ground of incompetency; and the court said that evidence of what he testified before the grand jury was properly excluded; and that "the only cases in which the testimony of a witness may be disclosed are those specified in the General Statutes (1878), c. 107, § 41.”8 6 Spratt v. State, 8 Mo. 247; Beam v. Link, 27 Mo. 261. "But this decision is based upon the Missouri Statute, which explicitly forbids such disclosure on the part of a grand juror." 2 Crim. Law Mag. 530. See note. Missouri Statute, Sec. 1791, (R. S.) "Members of the grand jury may be required by any court to testify whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by such witness before such court, and they may, also, be required to disclose the testimony given before them by any person upon a complaint against such person for perjury, or, upon his trial for such offence." 7 27 Minn. 280. Any 8 Statute of Minn., chap. 107, § 41 (1878): 66 grand juror may, however, be required by any court to disclose the testimony of any witnesses examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witnesses before the court, or, to disclose the testimony given before them by any other person, upon a charge against him for perjury in giving his testimony, or upon his trial therefor." 99 Tex. App. 353; Texas Statute (1879), § 384, Crim. Code. "You solemnly swear ; The States counsel, your fellows and your own you shall keep secret, unless required to disclose the same in the course of a judicial proceeding in which the truth or falsity of evidence given shall be under investigation re in this manner. What effect has the act of 1875 upon this right? Is it restrictive in its nature, and therefore an abrogation of the old rule? We therefore conclude that the truth or falsity of the evidence was not drawn into the investigation in this Judicial proceeding, and that the juror could not be made to disclose it. Article 384 speciArticle 384 specifies the cases in which the evidence is admissible, and the specification excludes all others." The case of Canton v. State, 10 gards the section of the statute merely as an oath, and does not regard it as a restrictive statute, and therefore overrules Ruby v. State, and cites, in support of the position taken, Wharton on Criminal Evidence,12 which must be considered to be the law where no statute intervenes to the contrary. The citation in Wharton is fatal to the position taken by the court in Canton v. State, for that section says that it is the usual rule to call grand jurors whenever it is material to show what was the issue, before the grand jury, or what was the testimony of a particular witness, and the learned author in support of the general law, makes the declaration that such is the statutory law of New York and Massachusetts. This citation in Wharton only goes to sustain the position of this article; the very fact of New York and Massachusetts having such statutes is the reason that grand jurors can be called in such cases in those States. 18 In Ex parte Sontag, 14 the petitioner was committed to prison by the Superior Court as being guilty of contempt in refusing to answer the question, whether he, as grand juror, voted for finding the indictment. The statutes of California, 15 in reference to the secrecy imposed upon grand jurors, is very like that of other States, with the addition of the exceptional clause, "section 926 specifies," says the court, "the exceptional cases in 10 13 Texas App. 139; s. c., 5 Crim. L. Mag. 147. 13 People v. Hulbut, 4 Denio, 133; 2 Rev. Statutes (N. Y.), 724, § 31. "A grand juror may be required to testify whether the testimony of a witness given before them is different from that given in court, and to disclose the testimony of a witness on his trial for perjury; but cannot disclose votes or deliberations." 145 Crim. Law Mag., 384; s. C., 1 West Coast Reporter, 588, California S. C. 15 § 926 Penal Code. See 5 Crim. L. Mag. 384. be confined to such matters." In Proffatt on Jury Trials, 16 the author refers to the cases of State v. Gibbs, Tindle v. Nichols and Beam v. Link, as being decisions that carry the obligation of secrecy imposed upon grand jurors, "farther than is probably justified." But the author fails to show the cause of the new departure in those cases; and, to the casual reader of Proffatt, those cases would appear as standing alone, while, in fact, they are not departures, but expositions of statutes. Several of the States have recently adopted a similar statute, and upon which no case has been decided. In those States the rule of construction of such statutes will conform to the established principle of law which carries with the statute the construction made by the judicial authority of the State from which the copy originated.17 Danville, Ind. 16 § 49. M. W. HOPKINS. 17 Skonton v. Wood, 2 Cent} L. J. 61. AT ASSIZES. A SKETCH ON THE CIVIL SIDE. Of all the pleasant places that are studded throughout England, commend us to the "ever faithful city," beautiful Worcester, as the model of an Assize town. With its vast cathedral, ancient even in the days when King John was laid to rest therein, its queenly river, its broad, grassy race-course, its old rookeries, its modern factories, it combines in an unusual degree the excellences of the past and the present, and when we add to these attractions, an abundance of good hotels and Assize courts, large and well ventilated, it may be easily understood why we are speeding our way down there this morning to attend Assize. Dirty Stafford is nearer to our own district, but there the calender is always crowded, the courts are not fit to breathe in, and the hotels beneath contempt. Arrived at Worcester, we find ourselves ahead of the judges, whose train is half an hour late, and, as nothing can be done till |