severe blow at the dignity and credit of the profession. The Law Times says:

"It is an odd feature, however, about the formation of the commission, that not one of its members can have the slightest knowledge, practical or theoretical, of the working of the offices concerning which they are going to inquire. The commissioners are, no doubt, men of business, but it is somewhat difficult to understand how it will be possible for them to estimate the relative value of work done and salary paid, if they are to be dependent entirely upon evidence produced before them, and are not to have the assistance of some gentlemen having experience in the working of the offices. Of all public offices the law offices are perhaps the most difficult to estimate at their true value without practical experience, because the duties of those engaged vary in value more than in any other public employment. A great number of the higher officials must necessarily have had a high class legal training, whilst others need have had scarcely any; and the same thing may be said of the lower offices. To distinguish between these positions, and to recommend such alterations as they may think desirable, will be one of the duties of the commissioners. They will run some risk of not being capable of distinguishing at all."

The American Courts on Photographs as Evidence and Contributory Negligence. The American Courts have recently decided matters of universal interest, of which we select two, one relating to the value of photographs as evidence, and another to contributory negligence in crossing railways. In an action recently tried in Philadelphia, against an insurance company, to recover the amount of a policy, a photograph of the deceased was introduced as evidence of her apparent bodily condition at the time the insurance was effected. It was proved that the photograph was a truthful representation of her as she appeared at that time. On a motion for a new trial the Court said: "We think that the photograph, thus proved and verified by witnesses who saw the original at a period approximating so nearly the date of the contract of insurance, was competent to go to the jury as evidence of her apparent bodily condition at that time. If it was competent for witnesses to portray her physical appearance to the jury by words, it is difficult to assign any good reason why the same might not be done by a picture, recognised and proved by her friends to be a truthful and correct representation of her person." On the other question some cases have decided that a person crossing a railway to avoid contributory negligence is bound to look both ways; whilst others have held that if he looks in the direction from which the train is approaching that is sufficient. The Supreme Court of Pennsylvania have recently decided that if the traveller cannot see the track by looking out, whether by fog or other cause, he should get out, and, if necessary, lead his horse and waggon. And they say "there never was a more important principle settled than that the fact of the failure to stop immediately before crossing a railroad track is not merely evidence of negligence for the jury but negligence per se, and a question for the Court."-Law Times.

Law Reporting.-Our readers are aware, that this subject is receiving at present some attention in the State of New York, and, VOL. XVII. NO. CCII.—OCTOBER 1873.

2 Q

as we think it desirable that the profession in Scotland should take into consideration the means of obtaining a single series of satisfactory standard reports, we venture to quote some sentences of a recent article on the subject in the Albany Law Journal:

"Our own preference is for a reporter appointed by the judges. We have already expressed our dissent from the conclusion of the Committee, that the reporter should not be in any way dependent upon the court, whose favour and friendship it is his privilege to win and enjoy. We notice that the Nation in a recent article upon this subject, reached the same conclusion, but on precisely opposite grounds; for while the Committee follow the above conclusion, with the assertion that in a free country it is well that the courts should feel that they are acting before an intelligent and reading public, to whom their decision will certainly become known, through fearless and independent reporters,' the Nation asserts that such a reporter-that is, one appointed by or dependent upon the judges-is a mere clerk of the judges, and that his selection by them exempts their work from everything in the way of rejection or criticism.' We happen to be of the number who believe that there is nothing to be feared from the judges, either in suppressing decisions worthy of publication, or in forcing unworthy ones upon the world.

"If there were no other reason why the judges should appoint the reporter, we should deem it sufficient that the Constitution directs it. And in this connection we may as well refer to the intimation in the Committee's report that it is the duty of the judges to send their opinions to Mr. Lansing, and that they are violating the law in sending them to any other reporter. Mr. Lansing is technically the official reporter of the Supreme Court, and nothing more. He was appointed under the act of 1869 by the Governor, Secretary of State and Attorney-General. The constitutional amendment of 1870 directed the legislature to provide for the appointment of a supreme-court reporter by the judges designated to hold general term. At the convention of the judges held in December 1870, a resolution was passed requesting the Governor to invite the attention of the legislature 'to the necessity of making provision by law for the appointment of a reporter of the decisions of the supreme court, as provided by the constitution.' The Governor did invite the attention of the legislature to the matter, but that body, through the influence of those interested in Mr. Lansing and his reports, declined to act, and the same influence has to this day defeated any attempt to have the legislature obey the Constitution. Mr. Lansing is reporter only because he had succeeded in inducing the legislature to violate the explicit terms of the Constitution, and to ignore the expressed wishes of the judges. He is, therefore, as an 'official' not entitled to much consideration from the judges.

"But, in order to have an official reporter, whether appointed by the judges or not, succeed in doing his work thoroughly and satisfactorily, the legislature must pursue a more liberal policy than in the act of 1869. That act gave the reporter no salary, and limited the price of his reports to $2.50 per voluinea sum hardly sufficient to cover the cost of publication. The reporter must have adequate compensation for his work, besides a sufficient allowance to pay the expense of securing copies of the opinion case and points in every decision. It will not do to leave the matter of forwarding opinions to the judges. They have enough else to attend to, and are very apt to neglect it. The reporter should have a copy of every opinion prepared, and should have every means and facility necessary to insure getting it. The present reporter of the court of appeals receives a salary of $5,000, with $2,000 additional for clerk hire, besides an income of two or three thousand a year from copies of opinions. The same appropriation to a Supreme Court reporter would secure the services of a man thoroughly competent, and would enable him to secure promptly copies of all the opinions given in each department.

"But if we may judge from past experience, there is little probability that

the requisite legislation can be secured for the appointment of a reporter by the judges, at a fair salary, and with the requisite appropriations for collecting the opinions and other necessary material. It becomes a question then as to the feasibility of a Council of Law Reporting after the plan of that of England.”

In England the difficulty has been met, if not satisfactorily, yet with some measure of success, by the enterprise of the profession. It may not be impossible to suppress one series of reports for Scotland, and to obtain something like tolerable remuneration for the reporters (without which the Reports will never be satisfactory), if the various professional bodies will take united action with the countenance and support of the judges. But whether or not this is to be, we are quite unable to see why the State should refuse to undertake the duty of superintending, and, if necessary, defraying part of the expense of promulgating the law as expounded by the judges, in an authentic and accessible manner.

The Law Agents Act.-Although we have always strongly advocated this measure, and desire the removal of the restrictions by which agency in the Supreme Court is still hampered, we are not among the number of those who expect the Act to produce a marked and immediate effect on the business of the Court of Session. It is probable that a gradual increase of that business will take place for some years, and that we shall see some new names of agents on the partibus of summonses and on special cases. Probably, too, the Court will be relieved of a score or two of small local cases which will in future be brought before the Sheriff-Court of Mid-Lothian. The majority of country practitioners may be expected to rest content with arranging more favourable terms for themselves with Edinburgh agents in regard to the division of fees, and on this point it is not improbable that we shall have a good deal of discussion and diversity of opinion and practice for some time. It is to be lamented that some agents in Edinburgh, certainly not of the first class, have already been anonymously advertising for country business "on favourable terms," but few or no country solicitors whose business is worth having will be caught by such means. It will be found judicious, we think, for the leading Edinburgh firms, or for the two Societies in Edinburgh, to come to a general understanding with the leading bodies in the country with regard to the distribution of the charges of litigation. We can hardly doubt that a more or less formal arrangement as to the proportion payable to the country employer will be arrived at in the course of the coming session, and the English practice may be found to afford a tolerably satisfactory precedent. We have heard proposals for a revision of the table of fees for Court of Session business: but, although no lawyer is overpaid in these times, a change of this kind is not practicable until the projected or portended changes in the procedure, and it may be in the constitution, of the Scotch Courts have been carried

out.

It is likely that the most important of the immediate practical

results of the Act will be to bring country solicitors into closer connection with the Bar. Exceedingly few agents out of Edinburgh have hitherto availed themselves of their undoubted right to obtain opinions from counsel without the intervention of a W.S. or an S.S.C., partly because there has been a curious uncertainty as to the propriety of doing so, partly from ignorance as to the right counsel to consult, and in some cases from an erroneous idea that the leading seniors whose opinions are wanted will be more advantageously approached through a known metropolitan practitioner. Apart from the Act altogether, a more accurate knowledge of the bar and its rules and personnel has been growing up in the country, the growth of which will be greatly promoted by this Act. Agents will get into the habit of protecting themselves and their clients far more frequently, not merely by the brief and therefore unsatisfactory opinions of the three or four too busy men whose names are in the mouths of every one, but by the reasoned opinions of a less conspicuous but not less competent class of lawyers, who are not too much engaged to be able to study the memorials laid before them and to explain the grounds on which their advice proceeds. The fancied barrier that fenced round the bar has now been broken, and we believe that the value of a class of consulting lawyers will now be more appreciated. The general practitioner has so great a variety of business, that even when he is an excellent lawyer he has rarely the opportunity of carefully canvassing the more difficult points that arise in his practice; and, if he is a man of sense enough to understand what division of labour implies, he will perceive the advantage of referring them to those who are constantly engaged in considering points of law. There is no intrinsic superiority in the opinion of counsel above that of a Glasgow agent, except that which arises from its being his more exclusive business to deal with the application of principles of law to doubtful cases, and his being in regular communication on the boards of the Parliament House with men engaged in the same pursuit. The Glasgow agent believes in his own superiority in practical ability, and in some in range of legal experience; but while we think he is apt to underrate the merits of counsel in that respect, that is not a reason for rejecting their aid, but rather of combining their ponderous wisdom with the more brilliant originality and practised sagacity of the Western pro

curator.

The pitiful fate of a poor pleader.—"Simply to burn one's own store is not unlawful, and the words, 'he burnt his own store,' or 'there is no doubt in my mind that he burnt his own store; he would not have got his goods insured if he had not meant to burn it;' or a general allegation that the defendant charged the plaintiff with having wilfully and maliciously burnt his own store, will not sustain an action for slander without a colloquium or averment setting forth such circumstances as would render such burning unlawful, and that the words were spoken of and concerning such circumstances; and the want of such colloquium or averment will not be cured by an innuendo.”

The above is the syllabus of the case of Bloss v. Tobey, 2 Pick. 320, decided

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in 1824. The report states that the defendant's counsel were Mills, Whiting and Dwight. After careful and extended inquiries among men from Berkshire county, we have learned that these were very distinguished men in their day, and we have no doubt that posterity, or at least that portion of it which shall peruse the said report, will hold them in due reverence. The report goes on to state that the distinguished gentlemen above mentioned, at the September term, 1823, moved in arrest of the judgment obtained by the plaintiff, and that Bryant, for the plaintiff, furnished the court in vacation with a written argument," etc. Now, what we wish to emphasize is, that this Bryant, we fear, had not a legal mind, and, instead of trying to supply his natural deficiencies by studying the grand principles of common-law pleading, he was much addicted to poetry. Even when in college, at the age of eighteen, he had written and uttered some verses which he called Thanatopsis, of which some of our readers may have heard. And even after he had been some time in the profession he allowed himself to be instigated by this unhallowed passion for poetry, to write:

"Though forced to drudge for the dregs of men,

And scrawl strange words with the barbarous pen,
And mingle among the jostling crowd,

Where the sons of strife are subtle and loud."

In a

The consequence of all this was, that his said client Bloss lost his case through his attorney's incapacity to draw a common-law declaration, and that attorney was condemned to hear from the wise and mild Chief Justice Parker such words as these: "It is with great regret, and not without much labour and research to avoid this result, that we are obliged to arrest the judgment in this case for want of a sufficient count to support the verdict. . . . If the plaintiff has sustained a serious injury, another action may give him indemnity. matter of technical law, the rule is of more consequence than the reason of it; and however we may lament the lost labour and expense of the suit, we find ourselves wholly unable to prevent it." No wonder the attorney was ashamed to face the court with an oral argument, but sent it in that underhand manner "in vacation" and in writing. How that unfortunate young man must have felt! and how he must feel now, at the age of seventy-six, when he reflects, as he must inevitably reflect, that, instead of occupying the proud eminence of a man who knew how to draw a common-law declaration,-of such men as Mills, Whiting and-(what's-his-name?)— Dwight, he must go down to posterity as William Cullen Bryant-nothing but the greatest of American poets, and tenant of the highest niche in American general letters.-Albany Law Journal.

Selections. In a western State there was occasion, in a suit before a justice, to require security from two persons in behalf of plaintiff for the costs of prosecuting the action, inasmuch as plaintiff lived out of the county. As there was no one else to sign, and plaintiff, who was absent, was abundantly able to pay, it was agreed by plaintiff's two counsel that they should both sign themselves. The senior did so, and turning to his junior, whose reputation through the country was that of a jolly, clever, impecunious fellow who never paid anybody anything, remarked: "Now, D, it is your turn." D looked at the paper, and then in a quizzical way shook his head and remarked: "No, on the whole I guess I won't dilute the security."

An Irish counsel being asked by the court for whom he was concerned, answered, without the least hesitation: "I am concerned, my Lord, for the plaintiff, but I'm retained by the defendant."

An attorney not celebrated for his probity, was robbed one night on his way from Wicklow to Dublin. His father meeting Baron O'Grady next day, said, "My Lord, have you heard of my son's robbery?" "No, indeed," replied the Baron with a good degree of surprise; "whom did he rob?"