happened that Judge BAIRD asked me a question on the law of Common Carriers, and, en

days before when he and one of the other members of the board were trying a case in which the very question had arisen, and I remembered how the Judge ruled it. I thought it very discreet to answer as the Judge had decided it, and while Judge BAIRD approved the answer, Mr. Dunlap said it was not law at all, and he and Judge BAIRD got into a discussion, neither of them were likely to give up easily. They carried it on for a whole half hour or more, and it became so heated that it ended finally in Mr. Finley suggesting that they could not

when I found he was superior to me in law, I thought I could corner him in the classics, and commenced quoting the classics. Mr. MACCON-tirely by good luck, I had been in court a few NELL, in his modest way, expressed his surprise and pleasure that I was familiar with what so greatly interested him, and directly invited me to his room on a Sunday to see his library, when we could talk such matters over and examine into them. I accepted his invitation and called, and to my surprise Mr. MACCONNELL, although his means were then very limited and his salary very small, had a law library already. He had the entire Pennsylvania Reports and had a fine classic library for a young man; and from that time on his knowledge of the classics troubled me, for he was really interested in them. Some-blame me if it was a wrong answer, for guessing times I thought he was a little malicious, for he would ask me questions regarding the interpretation of passages in the Greek Testament, which I must confess I was not very well posted in. In fact I was not very well posted in either the English or the Greek version, and I soon had to take up my time in the evenings study-county at the time-had not been present at the ing my lexicon, finding out something, so that meeting of the board, and as his department was I could converse intelligently on the subject to examine on criminal law, we would have to with him. He was always inquiring; and that get him to examine us; and, after many disapwent on until, before our attendance in the pro-pointments, we obtained an interview with Mr. thonotary's office had ended, he had taken all the starch out of my diploma. I put it away in a pigeon-hole and never hung it up-never used it. I saw that people could get learning without going through a university, and when I look at it now it is with regret, with almost a felling of sorrow, that thus one of the hallucinations of my youth, that a diploma could carry me through the world, that that was all I needed, should have been dispelled.

We went on studying together and finally became so well acquainted that there was no rivalry, and everything was agreeable and pleasant between us. We studied law together as we could, and did our work in the prothonotary's office in the meantime. Finally we thought it best to get our courage up and go before the board of examiners. The board at that time was composed of very eminent lawyers, but was very irregular in its sittings. There were few students and the board had no rules for examination, but were gotten together by the students, and after many efforts and disappointments we got it together, at least four of themthere were five altogether. They were James Dunlap, James Finley, Judge BAIRD and William H. Lowry. William H. Lowry was the youngest and was secretary. We met in Judge LOWRY'S office. The examination went on very smoothly for half an hour, they asking us definitions from Blackstone especially, when it

as Coke had done. They then found it was time to adjourn, and said they would let me know the next day. The next day they made out our certificates, and informed us at the same time that, in as much as Mr. Irwin-James B. Irwin, who was prosecuting attorney of the

Irwin, who was rather a "home" man and did not care about having his evenings disturbed. Finally we captured him in his office, considerably after dark, one very cold evening. Mr. MACCONNELL was very timid about approaching him, but still we ventured. It happened that the fire in his office had gone clear out. It was a very frosty night. He lighted a candlethere was no gas in those days-and sat down near the stove. He was not in the best of humor, and I remember he was poking at the stove. He turned around to Mr. MacCONNELL and said: "MACCONNELL, what is murder?” Mr. MACCONNELL told him very accurately-he always was very accurate and then he poked a while longer and asked me to define mauslaughter. I told him as well as I could recollect. Says he: "If the man who keeps my fires up was here I would make you illustrate the answers by killing him. He has left my fire go out." Then he said: "You will do, it is all right. I will attend to it to-morrow." So he signed our certificates, and that was the way Mr. MACCONNELL and I got admitted.

Mr. MACCONNELL went to the practice of law; he and Mr. Robb commenced together, and they got a very respectable practice and continued practicing for a good many years. I may say they had a very fine practice; but Mr. MACCONNELL was not a man who cared about accumulating money beyond what was neces

sary to keep his family and buy books. We became busy at the Bar, but Mr. MACCONNELL'S friendship and mine continued without any interruption. And it seems to me now that the incidents we look back upon with most pleasure are those of a domestic and social turn. In a practice of thirty or forty years, you see a little pleasure at the beginning and feel some interest, but at the close of it it is all like a blank in a document.

Some years ago, perhaps fifteen, Mr. MACCONNELL moved into my neighborhood, and we went out of, and into the city, in the cars together. Then I discovered he had a taste for the study of philosophy and theology. He had a very deep religions sentiment, and yet he thought out every problem, either in philosophy or religion, that he came across. I was agreeably surprised, for I felt interested in the same line of study. I thought I could easily find some books he had not come across, and when I would see any publications noticed in the East or elsewhere, read of a book published in England or elsewhere on subjects I knew he deilghted in and that I liked, I would get it and think now I am ahead of Mr. MacCONNELL and I will tell him about it. I would begin to talk with him, and he would say, "Oh yes, I have read that," and at once begin to criticise and tell me all about it, and likely say, too, that he had read it some time ago. He was a most astonishing man in his clearness of perception of principles, whether of law or philosophy; he read and thought out every proposition.

can authorities to such an extent and analyzed them and grouped them together in such a way that, whilst I had the master and the merits, I was convinced I could not hold the ease in court nor succeed in it. And, although there was a very considerable amount involved, before the master made his report I advised my clients to compromise, and we did so. That is the only case I ever had where, satisfied I was right, the opposing counsel convinced me I was wrong.

To-day, if you go into Mr. MACCONNELL'S dwelling house, you will find no common library. He has been accumulating books all his lifetime, and they are of the rarest that can be found in America or Europe. It made no difference what a book cost, if he found one that suited his taste, he would send to any part of Europe for it. He has a remarkable library of the finest works that can be obtained. It is a larger collection of books than can be found in any of our book stores or in any private library that I know of in this city except one; and I don't think there is any library in the city that contains as choice works. As a man in his sentiments and in his nature, his words and his actions, I never knew a purer one; I never knew a man so delicate to the touch of his honor or his word. He was peculiar in that way, and his habits were the best. He was a pure nature in every respect. He was a kind of man we like to do honor to.

I need not say anything of his professional career, although many who are present were not here when he was in his prime at the Bar. In all respects I never saw a man of more uniform good qualities, as a father, as a husband and as a friend. He has been to me the model in all of these respects, and I feel very deeply his death.

I remember of several cases he was in while I had the honor of being on the Bench. In fact, he and George P. Hamilton, also dead, were the two men who gave the court the most pleasure in listening to arguments, and gave the court the most difficulty in deciding the questions they raised. They both made the clearest REMARKS OF W. D. MOORE, ESQ. of arguments. The beauty of Mr. MACCON- MR. CHAIRMAN:-I should do great injustice NELL'S logic, and the accuracy of his quotations to my own feelings and to the relationship exfrom authorities, seems to me at this date to ex-isting between Mr. MACCONNELL and myself ceed anything of the kind I ever heard! I remember on one occasion, when I was at the Bar, he was against me in a very important case. It was a bill in equity for the specific performance of a written contract, and I had the merits on my side-I was sure of that, for I knew the parties-and I thought I had the testimony clearly on my side, and the master appointed to decide was a man of very considerable ability, and I knew he was favorable to my side of the case. I examined into the question with considerable care, and went to the argument of it with a great deal of confidence. Mr. MACCONNELL on that occasion cited English and Ameri

if I did not say a word to-day in regard to him. When I came to the Bar almost hopeless and with all the life that I had selected for myself ruined by the war, position gone, profession gone, hope almost gone, there were two men at the Bar who, for some reason unknown to me, by word and act indicated a sympathy which ripened into friendship never interrupted till death, which interrupts all such relations, came. Mr. Fetterman and Mr. MacCONNELL were those men. Mr. MACCONNELL honored me by admission to an intimate friendship. Perhaps the love of letters, which is a bond the world over, drew us together. Professional inter

course, which in my professional life began al-old Court-House stood and became acquainted most directly after my admission, only helped with him when he was in the prothonotary's to cement that kindly relationship, although office. (as many of the members of the Bar will recollect the very first case in which I was concerned of any importance the Forbes street case-in which he had been the master) I went to work with others to reverse his decision, and did finally succeed in doing it in the Supreme Court. I found, as Judge MELLON has stated, that after we are admitted we begin to know that we don't know anything, and I have learned that more and more ever since and I am better satisfied of it to-day than I was then. It is a life-work-the study of the law.

I can bear very full and hearty testimony to all the things that have been said of him to-day. He was a man of intelligence of convictions, a man who did not take his views from any person second-hand. He was possibly more intent and more thorough in his investigations outside of his profession than in it, but he was a very earnest, scrupulous lawyer, of scrupulous fidelity to his client and his cause. He possibly was not in his day estimated as highly as he deserved. Men more highly estimated at the Bar were far his inferior in learning and in power. He was a modest man and made no pretension though he was a man of courage—a man of pure courage. He had the courage that would assert itself when called upon and assert itself with great power.

I don't think we should meet here with a feeling of regret that he is gone. He lived more than the allotted three-score years and tennearly four-score years—and his bodily ailments were such, his physical sufferings such, that it was not desirable his life should be prolonged. We ought to hold his memory as a model and example. I don't know a single instance where I would change his record. I know of no single blemish in his life that his children and we who follow after him would wish removed.

I found Mr. MACCONNELL was among the most thoroughly well-read men and the most accurate man I had ever met, and I say to-day that I don't think he had a peer in that regard. | What Mr. MACCONNELL knew he knew with as much certainty as it was possible for a man to attain. He knew with the authority for his knowledge and the reason for his judgment and that which characterized him intellectually was mated with an integrity and a purity and an honor that I think cannot be surpassed by the best endeavors of the very best of us. He was not only that but he had a most singularly pure character morally. A man of almost effeminate delicacy. I never heard a word that he would blush to utter in the presence of a woman, and in that home a sweeter, more gracious and more delightful sanctuary never was made for home affections and loves. No man could go into it In the Court of Quarter Sessions, upon the and come away from it without feeling that a announcement of the death of THOMAS MACbenediction rested upon him from the atmos- CONNEL, Esq., by John Robb, Esq., the District phere of confidence and love existing among all | Attorney, the members of that household. And I honor him for another thing: He had the courage of his convictions! No cant upon that death-bed dishonored the record of his truthful and honored life. He looked for death, waited it, with something of hope and nothing of fear. A good life he crowned by a serene, calm acceptance of its end, recognizing that he was in the hands of the Almighty, not in the hands of priests and creeds, and that he could, with the confidence of a child who treads every chamber of his father's house, freely and without fear go to meet Him. I loved him as I have loved few men

since old Dr. Bruce and my father died, and I honored him as I have honored few upon earth.

REMARKS OF T. M. MARSHALL, ESQ. MR. CHAIRMAN:-I have known Mr. MACCONNELL nearly all my life. He was very considerably my senior in years, but I was employed in a business occupation where the

JUDGE BAILEY PRESIDING, SAID:

The announcement comes to us with peculiar force. Though Mr. MACCONNELL'S ill-health was well known and his death was therefore not unexpected, the passing away of one, who has so long adorned our profession necessarily excites the sensibility of us all. No one present

can remember the time when Mr. MACCONNELL was not an active and prominent member of this Bar. The fact that he has for some years withdrawn from practice does not dull the memory of the years of energetic, laborious and honorable service he gave to a large circle of clients. His unblemished reputation, his industry, his attainments, both in the line of the profession and of general learning, and his Christian character will keep him in merited remembrance.

The court will now adjourn out of respect to the memory of Mr. MACCONNELL,

proposition as more properly addressed to you, and I submit it to your consideration, and request you to pass upon it in connection with what may be hereafter found in the general charge pertinent to the subject."

And the following portion of the charge: "But you will, probably, from the appearance and language of this witness, claim that he labors for his daily bread, and has not had much time to devote to belles-lettres and nice scholarship, and has not a great command of language, and that were he so cultured, he might have been able to have given at least some plausible

It is competent to show the discovery of personal prop-explanation of the train of thought which led

erty on the line of flight of persons accused of murder, committed in the perpetration of robbery, where such property was connected directly with the deceased, though part of such property may have been at an earlier date stolen from the deceased. Where the court has called attention to contradictions of the testimony of a witness to his want of frankness and his credibility properly left to the jury, it is not error to suggest to the jury that they might be able to draw from his appearance and his lack of fluency, that,

if a man of culture, he might be able to give some explanation of such contradictions. Where a prayer for instructions set forth that material contradictory statements of a witness would be sufficient in itself to create a doubt as to his reliability, it is not error to submit such proposition to the jury, without a categorical answer.

Error to the Court of Oyer and Terminer of Allegheny county.

him to testify as he did. But with all the true question, and the only one of importance upon the matter is, whether you can rely upon his testimony as to the material facts criminating the defendant, or whether you feel bound to reject it."

The court had previously called attention to the testimony of this witness, had stated that he was not so frank as he should have been, and that if he had changed his mind as to a point in his evidence, he should have candidly said that he had done so.

For the defendant, Messrs. W. D. Moore and T. H. Davis.

Contra, John S. Robb, District Attorney. Opinion by GREEN, J. Filed December 30, 1882.

The testimony admitted under the fourth assignment of error was neither offered nor admitted for the purpose of fixing the grade of the crime. The killing did not take place while the burglary was being committed, but two days later. Hence it was no part of the proposed offer of proof that the homicide was perpetrated in the commission of the burglary. But that

George A. McClure was shot by a party of five men, all of whom fired at him. Of these men the defendant was one. McClure's store had been robbed some days before, and he was, at the | time he was shot, engaged in searching for the thieves and the property. At the time of the killing, McClure was robbed of his pocket-book, etc. The men who fired at McClure were seen to run away over a certain route, and afterwards on the line of flight, knives, razors, a pocket-circumstance would not render the testimony book and receipts were found. The pocket-book and receipts were shown to have been on the person of McClure shortly before his death. The chief assignments were the admission of without objection by the witness Snyder, conthis evidence and the following:

The answer of the court to the seventh point: "7th. If the jury believe that the said witnesses, Lynch and Fleming, have made sworn contradictory statements material to the issue in this case, this would be sufficient in itself to create a doubt as to the reliability of said witnesses in general, and especially as to their alleged identification of the defendant as one of the parties concerned in the killing of George A. McClure. Answer. This, in my opinion, does not involve a legal proposition, and hence I do not feel it my duty to answer it categorically. I regard the

inadmissible, if, for other reasons, it was competent. In point of fact the evidence offered, and that which had been previously given,

stituted in part the history of the transaction. The deceased in company with others had gone out in search of certain goods that had been stolen. He was engaged in this search at the time he was killed. The witness Snyder had heard the shots at a distance, and having started for the scene of the occurrence, saw several men fleeing from the direction of the place. Afterwards, in going over the line of the flight, he discovered certain articles, knives, razors, pistols and a pocket-book containing papers of the deceased, lying on the ground at different places, apparently on the line of the flight. Another

about it. Whether the particular contradictory statements relied upon would actually create a doubt in the minds of the jury was a matter exclusively for them to determine. There might be explanatory statements in the other testimony of the witnesses, or in the other testimony in the case which would mitigate or remove any doubt, and of this the jury alone could

person named Calhorn was with him at the time, and saw the articles as they were discovered. Snyder had delivered his testimony without objection, and then Calhorn was called to testify to the same facts. It was to his testimony the objection was made. The offer of proof was in corroboration of Snyder and it was explanatory of the facts of the case. We see no reason why it was not competent. The articles | judge. were connected directly with the deceased. Certain receipts made to the deceased in his own name were a part of the papers found, some in the pocket-book and others lying in the immediate vicinity. Without question it was entirely proper to prove the discovery of these articles shortly after the homicide, in close proximity The judgment of the Court of Oyer and Termto the place where it occurred, and in the line iner of Allegheny county is affirmed, and it is of flight of certain persons who were seen run-ordered that the record be remitted to said court ning from the locality immediately after the for the purpose of carrying the sentence into offense was committed. Other testimony was given to connect the defendant with the crime. The learned judge of the court below carefully instructed the jury that this testimony could

The other assignments are not pressed and are without merit. The seventh raises a question which was entirely for the jury, and they have determined the degree of the offense upon testimony which, if believed, was quite sufficient to justify their finding.

execution.

JOSEPH GRIER'S APPEAL.

not be considered as fixing the grade of the H. presented her petition to the Orphans' Court, averring crime, unless the murder was connected with and related to a robbery committed at the same time. It was not pretended that the previous burglary could be used for that purpose.

We see no error in the comments of the court in relation to the testimony of the witness Lynch. The contradictions in his testimony were referred to, his want of frankness was stated, his credibility was left entirely to the jury, as it should have been, and they were told that they might reject it altogether if they felt bound to do so. The jury saw the witness and heard his testimony and were the best judges as to the degree of credit to be given to his statements. The suggestion of the court, which is complained of, was nothing more than a comment upon his apparent want of culture, and a consequent lack of fluency in explaining some apparent contradictions in his testimony. The assignment is not sustained.

The answers to the defendant's sixth and seventh points were clearly right. The sixth point was affirmed without qualification as to its first clause and substantially as to the last. The very caution was given which was asked by the point. So also as to the seventh point. It contains no legal proposition, and all the effect to be attached to material contradictory statements in the testimony of the witnesses had been already expressed in the answer to the sixth point, in which the jury were told that they might for that reason reject such testimony altogether. Of course if they might absolutely reject it, they would be at liberty to have doubts

that she had been appointed guardian of her two minor children, and praying authority to mortgage certain property of theirs. The customary order was made and a bond with approved sureties filed and a mortgage executed in pursuance thereof. She had not in fact ever been appointed guardian, and a bill having been filed for the cancellation of said mortgage. Held, 1. The decision of the question depends on the validity of the decree of the Orphans' Court directing the mortgage. The prima facie presumption is in favor of that decree, but it is not one juris et de jure. It may be rebutted, and if the court had no jurisdiction its order was void.

2. The power of the court to order a sale or mortgage is based upon some preceding relation of the person applying for such order. In the absence of such relation the action of the court is mere usurpation. The maxim omnia præsumantur cannot clothe a court with a jurisdiction that the Constitution and laws have put beyond its reach.

Torrance v. Torrance, 3 P. F. Smith, 505, cited.

Appeal from the decree of the Court of Common Pleas, No. 1, of Allegheny county. Opinion by GORDON, J. Filed November 20, 1882.

On the 27th of June, 1874, Rosanna Hamilton presented her petition in the Orphans' Court of Allegheny county, averring that she had been appointed guardian of Sarah Ida and Hattie May Hamilton, on the day of August, 1862, and prayed for authority to mortgage certain property of the said minors, in order to pay for the grading of certain property of the estate of Charles Hamilton, father of the said minors. The customary order was made by the court, and a bond with approved sureties executed and filed.

On the 30th of June, 1874, Mrs. Hamilton, as