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when I found he was superior to me in law, I happened that Judge BAIRD asked me a questhought I could corner him in the classics, and tion on the law of Common Carriers, and, encommenced quoting the classics. Mr. MAC('Ox- tirely by good luck, I bad been in court a few NELL, in his modest way, expressed his surprise | days before when he and one of the other memand pleasure that I was familiar with what so bers of the board were trying a case in which greatly interested him, and directly invited me the very question had arisen, and I remembered to his room on a Sunday to see his library, when how the Judge ruled it. I thought it very we could talk such matters over and examine discreet to answer as the Judge had decided it, into them. I accepted his invitation and called, and while Judge BAIRD approved the answer, and to my surprise Mr. MACCONNELL, although Mr. Dunlap said it was not law at all, and he his means were then very limited and his salary and Judge BAIRD) got into a discussion, neither very small, had a law library already. He had of them were likely to give up easily. They the entire Pennsylvania Reports and had a fine carried it on for a whole half hour or more, classic library for a young man; and from that and it became so heated that it ended finally time on his knowledge of the classics troubled in Mr. Finley suggesting that they could not 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 as Coke had done. They then found it was he would ask me questions revarding the inter- time to adjourn, and said they would let me pretation of passages in the Greek Testament, know the next day. The next day they made which I must confess I was not very well posted out our certificates, and informed us at the same in. In fact I was not very well posted in either time that, in as much as Mr. Irwin-James B. the English or the Greek version, and I soon Irwin, who was prosecuting attorney of the 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 Irwin, who was rather a “home” man and did the starch out of my diploma. I put it away in not care about having his evenings disturbed. a pigeon-hole and never hung it up-never used Finally we captured him in his office, considit. I saw that people could get learning with- erably after dark, one very cold evening. Mr. out going through a university, and when I MACCONNELL was very timid about approachlook at it now it is with regret, with almost a ing him, but still we ventured. It happened felling of sorrow, that thus one of the hallucina- that the fire in his office had gone clear out. It tions of my youth, that a diploma could carry was a very frosty night. He lighted a candleme through the world, that that was all I there was no gas in those days-and sat down needed, should have been dispelled.

near the stove. He was not in the best of We went on studying together and finally humor, and I remember he was poking at the became so well acquainted that there was no stove. He turned around to Mr. MacCONXELL rivalry, and everything was agreeable and pleas- and said: “MACCONNELL, what is murder?! ant between us. We studied law together as we Mr. MACCONNELL told bim very accurately-he could, and did our work in the prothonotary's always was very accurate—and then he poked office in the meantime. Finally we thought a while longer and asked me to define manit best to get our courage up and go before the slaughter. I told him as well as I could recolboard of examiners. The board at that time lect. Says he: “If the man who keeps my fires was composed of very eminent lawyers, but up was here I would make you illustrate the was very irregular in its sittings. There were answers by killing him. He has left my fire few students and the board had no rules for go out." Then he said: “You will do, it is all examination, but were gotten together by the right. I will attend to it to-morrow." So he students, and after many efforts and disappoint- signed our certificates, and that was the way ments we got it together, at least four of them- Mr. MACCONNELL and I got admitted. there were five altogether. They were James Mr. MACCONNELL went to the practice of Dunlap, James Finley, Judge BAIRD and Wil- law; he and Mr. Robb commenced together, liam H. Lowry. William H. Lowry was the and they got a very respectable practice and youngest and was secretary. We met in Judge continued practicing for a good many years. I LOWRY's office. The examination went on may say they had a very fine practice; but Mr. very smoothly for half an hour, they asking us MACCONNELL was not a man who cared about definitions from Blackstone especially, when it accumulating money beyond what was necessary to keep his family and buy books. We be- can authorities to such an extent and analyzed came busy at the Bar, but Mr. MACCONNELL'S them and groupell them together in such a way friendship and mine continued without any that, whilst I had the master and the merits, I interruption. And it seems to me now that was convinced I could not hold the case in court the incidents we look back upon with most nor succeed in it. And, although there was a pleasure are those of a domestic and social turn. | very considerable amount involved, before the In a practice of thirty or forty years, you see a master matte his report I advised my clients to little pleasure at the beginning and feel some compromise, and we did so. That is the only interest, but at the ciose of it it is all like a case I ever had where, satisfied I was right, the blank in a document.

Topposing counsel convinced me I was wrong. Some years ago, perhaps fifteen, Mr. MACCON- To-day, if you go into Mr. MACCONNELL'S NELL moved into my neighborhood, and we dwelling house, you will find no common li. went out of, and into the city, in the cars to brary. He has been accumulating books all his gether. Then I discovered he had a taste for lifetime, and they are of the rarest that can be the study of philosophy and theology. He had found in America or Europe. It made no difa very deep religions sentiment, and yet he ference what a book cost, if he found one that thought out every problem, either in philosophy suited his taste, he would send to any part of or religion, that he came across. I was agreea- | Europe for it. He has a remarkable library of bly surprised, for I felt interested in.the same the finest works that can be obtained. It is a line of study. I thought I could easily find | larger collection of books than can be found in some books he had not come across, and when I any of our book stores or in any private library would see any publications noticed in the East that I know of in this city except one; and I or elsewhere, read of a book published in Eng- | don't think there is any library in the city that land or elsewhere on subjects I knew he de contains as choice works. As a man in his ilghted in and that I liked, I would get it and sentiments and in huis nature, his words and his think now I am ahead of Mr. MacCONNELL actions, I never knew a purer one; I never knew and I will tell him about it. I would begin to a man so delicate to the touch of his honor or talk with him, and he would say, "Oh yes, I his word. He was peculiar in that way, and have read that," and at once begin to criticise his habits were the best. He was a pure nature and tell me all about it, and likely say, too, that in every respect. He was a kind of man we he had read it some time ago. He was a most as- like to do honor to. tonishing man in his clearness of perception of I need not say anything of his professional principles, whether of law or philosophy; he career, although many who are present were not read and thought out every proposition.

There when he was in his prime at the Bar. In I remember of several cases he was in while I all respects I never saw a man of more uniformi had the honor of being on the Bench. In fact, good qualities, as a father, as a husband and as he and George P. Hamilton, also dead, were a friend. He has been to me the model in all the two men who gave the court the most pleas- l of these respects, and I feel very deeply his ure in listening to arguments, and gave the death. court the most difficulty in deciding the questions they raised. They both made the clearest

REMARKS OF W. 1). 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 re- if I did not say a word to-lay in regard to him. member on one occasion, when I was at the Bar, | When I came to the Bar almost hopeless and he was against me in a very important case. It with all the life that I had selected for myself was a bill in equity for the specific performance ruined by the war, position gone, profession of a written contract, and I had the merits gone, hope almost gone, there were two men at on my side-I was sure of that, for I knew the the Bar who, for some reason unknown to me, parties-a nd I thought I had the testimony by word and act indicated a sympathy which clearly on my side, and the master appointed to ripened into friendship never interrupted till decide was a man of very considerable ability, death, which interrupts all such relations, came. and I knew he was favorable to my side of the Mr. Feiterman and Mr. JACCONNELL were Case. Iexamined into the question with con- those men. Nr. VII CONNELL honored me by siderable care, and went to the argument of it admission to an intimate friendship. Perhaps with a great deal of confidence. Mr. MACCOY- the love of letters, which is a bond the world NELL on that occasion cited English and Ameri- | over, drew us together. Professional intercourse, 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 recol- I can bear very full and hearty testimony to lect the very first case in which I was concerned all the things that have been said of him to-day. of any importance—the Forbes street case-in | He was a man of intelligence of convictions, a which he had been the master) I went to work man who did not take his views from any perwith others to reverse his decision, and did son second-band. He was possibly more intent finally succeed in doing it in the Supreme and more thorough in his investigations outside Court. I found, as Judge MELLON has stated, of his profession than in it, but he was a very that after we are admitted we begin to know earnest, scrupulous lawyer, of scrupulous fidelity that we don't know anything, and I have to his client and his cause. He possibly was learned that more and more ever since and I not in his day estimated as highly as he deam better satisfied of it to-day than I was then. served. Men more highly estimated at the Bar It is a life-work—the study of the law.


were far his inferior in learning and in power. I found Mr. MACCONNELL was among the He was a modest man and made no pretension most thoroughly well-read men and the most though he was a man of courage-a man of pure accurate man I had ever met, and I say to-day courage. He had the courage that would assert that I don't think he had a peer in that regard. itself when called upon and assert itself with What Mr. MACCONNELL knew he knew with great power. as much certainty as it was possible for a man I don't think we should meet here with a to attain. He knew with the authority for his feeling of regret that he is gone. He lived more knowledge and the reason for his judgment and than the allotted three-score years and tenthat which characterized him intellectually was nearly four-score years—and his bodily ailments mated with an integrity and a purity and an were such, his physical sufferings such, that it honor that I think cannot be surpassed by the was not desirable his life should be prolonged. best endeavors of the very best of us. He was We ought to hold his memory as a model not only that but he had a most singularly pure and example. I don't know a single instance character morally. A man of almost effeminate where I would change his record. I know of delicacy. I never heard a word that he would no single blemish in his life that his children blush to utter in the presence of a woman, and and we who follow after him would wish rein that home a sweeter, more gracious and more moved. 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 meinbers of that household. And I honor

JUDGE BAILEY PRESIDING, SAID: him for another thing: He had the courage of The announcement comes to us with peculiar his convictions! No cant upon that death-bed | force. Though Mr. MacCONNELL's ill-bealth dishonored the record of his truthful and hon- | was well known and his death was therefore ored life. He looked for death, waited it, with not unexpected, the passing away of one, who something of hope and nothing of fear. A good has so long adorned our profession necessarily life he crowned by a serene, calm acceptance of excites the sensibility of us all. No one present its end, recognizing that he was in the hands can remember the time when Mr. MACCONof the Almighty, not in the hands of priests NELL was not an active and prominent member and creeds, and that he could, with the confi- of this Bar. The fact that he has for some dence of a child who treads every chamber of years withdrawn from practice does not dull his father's house, freely and without fear go to the memory of the years of energetic, laborious meet Him. I loved him as I have loved few men and honorable service he gave to a large circle since old Dr. Bruce and my father died, and I of clients. His unblemished reputation, his honored him as I have honored few upon earth.

industry, his attainments, both in the line of

the profession and of general learuing, and bis REMARKS OF T. M. MARSHALL, ESQ. Christian character will keep him in merited MR. CHAIRMAN:-I have known Mr. MAC- | remembrance. CONNELL nearly all my life. He was very | The court will now adjourn out of respect to considerably my senior in years, but I was the memory of Mr. MACCONNELL. employed in a business occupation where the

Pittsburgh Legal Journal.

Supreme Court, Penn'a.

proposition as more properly addressed to you,

and I submit it to your consideration, and reESTABLISHED 1853.

quest you to pass upon it in connection with E. Y. BRECK, : : : : : Editor. what may be hereafter found in the general

charge pertinent to the subject." N. S., Vol. XIII. } 0. s., Vol. xxx.

No. 24.

And the following portion of the charge:

“But you will, probably, from the appearance PITTSBURGH, PA., JANUARY 24, 1883.

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 WARD MCCONKEY v. COMMONWEALTH.

been able to have given at least some plausible

explanation of the train of thought which led It is competent to show the discovery of personal property on the line of flight of persons accused of murder,

him to testify as he did. But with all the true committed in the perpetration of robbery, where such question, and the only one of importance upon property was connected directly with the deceased, | the matter is, whether you can rely upon his though part of such property may have been at an | testimony as to the material facts criminating earlier date stolen from the deceased.

the defendant, or whether you feel bound to Where the court has called attention to contradictions of the testimony of a witness to his want of frankness

reject it." and his credibility properly left to the jury, it is not | The court had previously called attention to error to suggest to the jury that they might be able to

the testimony of this witness, had stated that draw from his appearance and his lack of fluency, that,

he was not so frank as he should have been, and if a man of culture, he might be able to give some ex planation of such contradictions.

that if he had changed his mind as to a point Where a prayer for instructions set forth that material in his evidence, he should have candidly said contradictory statements of a witness would be sutti- that he had done so. cient in itself to create a doubt as to his reliability, it is not error to submit such proposition to the jury, with

For the defendant, Messrs. W. D. Moore and out a categorical answer.

T. H. Davis.

Contra, John S. Robb, District Attorney. Error to the Court of Oyer and Terminer of Allegheny county.

Opinion by GREEN, J. Filed December 30, George A. McClure was shot by a party of five 1882. men, all of whom fired at him. Of these men The testimony admitted under the fourth asthe defendant was one. McClure's store had signment of error was neither offered nor adbeen robbed some days before, and he was, at the mitted for the purpose of fixing the grade of the time he was shot, engaged in searching for the crime. The killing did not take place while thieves and the property. At the time of the kill- the burglary was being committed, but two days ing, McClure was robbed of his pocket-book, etc. | later. Hence it was no part of the proposed

The men who fired at McClure were seen to offer of proof that the homicide was perpetrated run away over a certain route, and afterwards in the commission of the burglary. But that on the line of flight, knives, razors, a pocket-circumstance would not render the testimony book and receipts were found. The pocket-book inadmissible, if, for other reasons, it was comand receipts were shown to have been on the petent. In point of fact the evidence offered, person of McClure shortly before his death. and that which had been previously given,

The chief assignments were the admission of without objection by the witness Snyder, conthis evidence and the following:

stituted in part the history of the transaction. The answer of the court to the seventh point: The deceased in company with others had gone "7th. If the jury believe that the said witnesses, out in search of certain goods that had been Lynch and Fleming, have made sworn contra- stolen. He was engaged in this search at the dictory statements material to the issue in this time he was killed. The witness Snyder had case, tbis would be sufficient in itself to create heard the shots at a distance, and having started a doubt as to the reliability of said witnesses in for the scene of the occurrence, saw several men general, and especially as to their alleged identi- | fleeing from the direction of the place. Afterfication of the defendant as one of the parties wards, in going over the line of the flight, he concerned in the killing of George A. McClure. discovered certain articles, knives, razors, pisAnswer:--This, in my opinion, does not involve | tols and a pocket-book containing papers of the a legal proposition, and hence I do not feel it my deceased, lying on the ground at different places, duty to answer it categorically. I regard the apparently on the line of the flight. Another person named Calhorn was with him at the about it. Whether the particular contradictory time, and saw the articles as they were dis- statements relied upon would actually create a covered. Snyder had delivered his testimony doubt in the minds of the jury was a matter without objection, and then Calhorn was called exclusively for them to determine. There might to testify to the same facts. It was to his testi- be explanatory statements in the other testimony the objection was made. The offer of mony of the witnesses, or in the other testimony proof was in corroboration of Snyder and it was in the case which would mitigate or remove explanatory of the facts of the case. We see no any doubt, and of this the jury alone could reason why it was not competent. The articles judge. were connected directly with the deceased. Cer- The other assignments are not pressed and tain receipts made to the deceased in his own are without merit. The seventh raises a quesname were a part of the papers found, some in tion which was entirely for the jury, and they the pocket-book and others lying in the imme- have determined the degree of the offense upon diate vicinity. Without question it was entirely testimony which, if believed, was quite suffiproper to prove the discovery of these articles cient to justify their finding. 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 execution. given to connect the defendant with the crime. The learned judge of the court below carefully


JOSEPH GRIER'S APPEAL. instructed the jury that this testimony could

H. presented her petition to the Orphans' Court, averring not be considered as fixing the grade of the

that she had been appointed guardian of her two minor crime, unless the murder was connected with

children, and praying authority to mortgage certain and related to a robbery committed at the same property of theirs. The customary order was made time. It was not pretended that the previous

and a bond with approved sureties filed and a mortgage

executed in pursuance thereof. She had not in fact burglary could be used for that purpose.

ever been appointed guardian, and a bill having been We see no error in the comments of the court

filed for the cancellation of said mortgage. Held, in relation to the testimony of the witness 1. The decision of the question depends on the validity Lynch. The contradictions in his testimony of the decree of the Orphans' Court directing the mortwere referred to, his want of frankness was

gage. The prima facie presumption is in favor of that

decree, but it is not one juris et de jure. It may be restated, his credibility was left entirely to the

butted, and if the court had no jurisdiction its order jury, as it should have been, and they were told was void. that they might reject it altogether if they felt | 2. The power of the court to order a sale or mortgage is

based upon some preceding relation of the person apbound to do so. The jury saw the witness and

plying for such order. In the absence of such relation heard his testimony and were the best judges

the action of the court is mere usurpation. The maxim as to the degree of credit to be given to his state omnia praesumantur cannot clothe a court with a jurisments. The suggestion of the court, which is

diction that the Constitution and laws have put beyond

its reach, complained of, was nothing more than a com

Torrance v. Torrance, 3 P. F. Smith, 505, cited. ment upon his apparent want of culture, and a consequent lack of fluency in explaining some ! Appeal from the decree of the Court of Comapparent contradictions in his testimony. The mon Pleas, No. 1, of Allegheny county. assignment is not sustained.

Opinion by GORDON, J. Filed November 20, The answers to the defendant's sixth and 1882. seventh points were clearly right. The sixth On the 27th of June, 1874, Rosanna Hamilton point was affirmed without qualification as to presented her petition in the Orphans' Court of its first clause and substantially as to the last. | Allegheny county, averring that she had been The very caution was given which was asked appointed guardian of Sarah Ida and Hattie by the point. So also as to the seventh point. May Hamilton, on the — day of August, 1862, It contains no legal proposition, and all the and prayed for authority to mortgage certain effect to be attached to material contradictory property of the said minors, in order to pay for statements in the testimony of the witnesses the grading of certain property of the estate of had been already expressed in the answer to the Charles Hamilton, father of the said minors. sixth point, in which the jury were told that The customary order was made by the court, they might for that reason reject such testimony and a bond with approved sureties executed and altogether. Of course if they might absolutely | filed. reject it, they would be at liberty to have doubts. On the 30th of June, 1874, Mrs. Hamilton, as

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