Obituary Sketch of Samuel B. Sumner.

Sidney B. Beardsley, then a leading member of the Fairfield County bar and afterwards a judge of the Supreme Court of the state. Col. Sumner was a good lawyer, skillful in the conduct of his cases, and with a ready command of language. He was faithful to every trust and always true to his clients. He had an exalted opinion of the dignity of the legal profession and of the responsibility of its members. In one of his poems he says of the "thorough lawyer," that he “can but be the thorough man."

Col. Sumner in the course of his life held various offices of honor and trust. While practicing his profession in Great Barrington he was elected to the Massachusetts Senate; and during his residence in Bridgeport he was city attorney, city judge, judge of probate, and, previous to 1884, assistant clerk of the Superior Court. He filled all these offices with marked ability and fidelity. In 1884 he was appointed by the judges clerk of the Superior Court for Fairfield County, and was annually reappointed and held that position at the time of his death. The court never had a more competent clerk, while his uniform courtesy and kindliness made him very popular with the members of the bar.

But it is as a poet that Col. Sumner will be longest and best remembered. It has been a general opinion that in failing to devote himself to literary pursuits he made the mistake of his life. He early exhibited a taste for poetry and an aptitude for poetic composition. His friends were not long in discovering that he was a genuine poet and not a mere writer of verses. It is the poet's province to minister to the demand of the human soul for something more than this world affords—something better than the common events of life. No one who has carefully read his poems can have failed to observe that this ministering spirit pervades all his graver productions. These are all lofty in sentiment, and morally and religiously elevating in their tone and tendency. Even his lighter and gayer poems, though abounding in witticisms and happy touches, never descend below what is healthy, pure and refined. As a poet he was in great demand at public gatherings of various societies and organizations, and their committees of arrangement thought themselves fortunate if they succeeded in securing a poem to be read by him on such occasions. He had always something appropriate and worthy of being heard. He was not only a poet, but a poet-orator. Nobody could deliver his particular poem to a particular audience with such a touch on the pulse of that audience as Col. Sumner himself had. This, and his winning ways, made him a universal favorite at social gatherings. It may be truthfully said that no other poet has delivered so many of what might be termed occasional poems as he. Oliver Wendell Holmes in 1877 wrote him as follows: "I thought I had written more occasional poems than almost anybody else, but you have put me quite to the blush." Col Sumner received a

Obituary Sketch of Samuel B. Sumner.

number of complimentary letters from him, and one from Tennyson in 1875.

Early in life Col. Sumner joined the order of “Free and Accepted Masons." His warm heart, strong social nature, sparkling wit and ready speech, made him a special favorite in that order, and he attained a leading position in it. He was often called upon to read poems before its gatherings and was always greeted with great enthusiasm.

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Col. Sumner's domestic attachments were very strong. The volume of poems before mentioned, published by himself and his brother, is dedicated to the memory of their mother, from whose cultured lips we learned our first and best lessons." The last poem of the volume, written by him, is a warm tribute to his father. Another of great beauty and full of pathos mourns the death of a sister. His attachment to a brother residing in California was so great that it is said that scarcely a week, and many times scarcely a day, passed without his sending him some token or message of remembrance; and he has told, in one of his finest poems, of his terrible anguish over the death of his brother Albert, who perished by shipwreck in 1873 off the coast of Nova Scotia. This brother had been abroad perfecting himself in music, and was returning, full of enthusiasm, to fill an engagement which had been made for him, as organist of St. John's Church, in Bridgeport. A few years later, and not long before his own death, his wife, to whom he was most tenderly attached, died very suddenly. He never after this recovered his former elasticity of spirits, and seemed to desire to live only for his children.

At the time of his death Col. Sumner was, and for many years had been, a communicant in St. John's Episcopal Church of Bridgeport and one of its vestrymen. He was a regular attendant upon its services and was deeply interested in both its temporal and spiritual welfare. In his graver poems his unfaltering faith is held up before us in no doubtful language, and they present him to us as constantly earnest in moral purpose. Among them are found the following lines, which, though perhaps not equal in merit to much that he wrote, show the absence from his nature of all spirit of ostentation, and his desire to be remembered for some good accomplished, and by those who loved him rather than by the world at large. They are of special interest now that his earthly life is ended.

When I must answer to the final call,
I'd have no costly pile above my head;
But I would be remembered, if at all,
For something nobly done or fitly said.

But, should I join the multitudinous dead,

Who leave no foot-prints on time's treacherous sands,

Enough for me to have my children shed

Sometimes a tear beside the spot where stands

The simple stone placed o'er my dust by friendly hands.

INDEX TO THE FIFTY-NINTH VOLUME.

ACCORD.

See CONDITION PRECEDENT, 1.
ADEQUATE REMEDY AT LAW.
See DISCOVERY, 4.

ADJOURNMENT.

See PLEADING, 4.

ADMINISTRATOR DE BONIS NON.

See MONEY PAID UNDER MISTAKE, 1.
ANTE-NUPTIAL AGREEMENT.

See DOWER, 1, 2, 3.

APPEAL.

1. In a suit before a justice of the peace both parties appeared and joined
in the general issue, but the plaintiff offered no evidence in support of
his complaint and the justice rendered a judgment of non-suit. From
this judgment the plaintiff appealed. Held that no appeal would lie
from such a judgment. Norton v. Petrie, 200.

2. The statute, (Gen. Statutes, § 683,) provides that "in all civil actions,
except those by summary process, brought before a justice of the peace,
an appeal from any judgment rendered therein upon any issue may be
had." Held that, although issue was joined in the case, yet as no
judgment was rendered on the issue, that fact did not bring it within
the statute. Ib.

APPEAL FROM COMMISSIONERS.

1. An appeal from the doings of commissioners on an insolvent estate is
in no sense an appeal from probate. Cothren's Appeal from Commis-
sioners, 345.

2. Such an appeal vacates the judgment of the commissioners, and the
trial in the appellate court is de novo and has no reference to any errors
of the commissioners in the hearing before them. Ib.

APPEAL FROM PROBATE.

See APPEAL FROM COMMISSONERS, 1, 2; INSOLVENT LAW, 1.
ARBITRATION.

After the death of D and a transfer of certain stock, without an order
of distribution, to his legatees, his executors submitted the question of
the liability of his estate upon a contract with A with regard to the
stock to an arbitrator, the other party to the submission being the ex-
ecutors of A. Held that the legatees of D, not being a party to the
submission, were not bound by the award, and that it was not admis-
sible in evidence in favor of the executors of A in a suit brought by
them for the stock against the executors and legatees of D. Cone v.
Dunham, 146.

AWARD.

See ARBITRATION.

BALLOT.

1. The act of 1889, concerning elections, (Session Laws of 1889, ch. 247,)
provides in the first section that all ballots shall be printed and of uni-
form size, color and quality, to be determined by the secretary of the
state, and "shall contain, in addition to the official endorsement, only
the names of the candidates, the office voted for, and the name of the
political party issuing the same," with directions as to the manner in
which they shall be printed; and the eleventh section provides that
"all ballots cast in violation of the foregoing provisions, or which do
not conform to the foregoing requirements, shall be void and not
counted." At an election in the city of Hartford there were regular
ballots provided which were prepared and issued by the “Republican,”
"Democratic" and "Prohibition" parties respectively, these parties
being organized, and known by those names, and placing those names
respectively upon the ballots issued by them. In addition to these bal-
lots a ballot was issued by certain persons which had at its head the
word "Citizens," but which was in all other respects the same as the
Republican ballots. There were eighty-six of these ballots cast, but
there was no party in the city known as the Citizens' party. Held
that the ballots were void and not to be counted. Talcott v. Philbrick,
472.

2. And it seems that it did not affect the case that the ballots were not
prepared in that form fraudulently and with the intention of deceiving

1. Where the evidence presents such contingencies as may legitimately
and within the pleadings lead to different conclusions of fact the court
may with propriety be required to charge the jury in the alternative or
in reference to such contingencies. Morehouse v. Remson, 392.
2. But where one and only one definite agreement was claimed on the
part of the plaintiff and his whole case rested upon it, and one and
only one agreement on the part of the defendant and his whole defense
rested upon it, and these claimed agreements were in direct conflict, so
that the party who established his claim in the convictions of the jury
would necessarily prevail, and there was no ground for an implied
agreement or any modification of either claimed agreement, it was held
that the judge was not bound to charge with reference to any contin-
gencies outside of the simple question of fact between these two con-
flicting claims. Ib.

3. In his argument before the court and jury the plaintiff's counsel read
the findings of fact and the opinions of judges in sundry reported cases.
The judge in his charge said to the jury—“ Anything which you have
heard read from law books is of no concern to you. It must not enter

into your consideration nor influence you in the slightest degree; that
is a matter solely between the parties and the court." Held that these
remarks were not only not open to exception but were to be com-
mended. Ib.

4. Remarks of the judge in his charge to the jury which are only obser-
vations on the evidence are within the fair discretion of the trial judge
and are not reviewable. Ib.

CLOUD ON TITLE.

1. A cloud upon a title to land is something which shows some prima
facie right of a third person to the land. Welles v. Rhodes, 498.

2. The mere assertion of a claim, whether made orally or in writing,
does not constitute such a cloud upon a title as a court of equity will
remove. Ib.

COMMISSIONERS (APPEAL FROM.)

See APPEAL FROM COMMISSIONERS.
COMMITTEE.

See HIGHWAY, 1 to 6.

COMPOSITION AGREEMENT.

1. The plaintiff, a creditor of the defendant, had signed the following
composition agreement:-" Whereas H. B. is unable to pay his debts in
full, and desires to effect a compromise with his creditors, and proposes
to pay twenty per cent on all unsecured claims, on or before December
1st, 1888; and whereas we, creditors of said B., are willing to accept
said twenty per cent in full of our respective claims:-Now therefore
we, the undersigned, being creditors of said B. to the amounts set op-
posite our names respectively, hereby, each in consideration of the like
agreements of the others, signers of this contract, agree with each other
and with said B., that we will accept twenty per cent of our respective
unsecured claims against said B., if paid on or before December 1st,
1888, in full settlement of said claims." The plaintiff received the
twenty per cent on his claim. In a suit afterwards brought by him to
recover the balance, it was held that parol evidence was not admissible
to show that it was agreed at the time he signed the composition agree-
ment, that it should be void unless signed by all the unsecured creditors.
Beard v. Boylan, 181.

2. And held that this condition was not implied by the language of the
composition agreement. Ib.

CONDITION PRECEDENT (PERFORMANCE OF.)

The plaintiffs, who held a judgment and judgment lien against the de-
fendants, agreed that if they would pay a certain sum materially less
than the judgment and do certain other things by a certain day, they
would discharge the judgment. One of the defendants within the time
called three times at the office of the plaintiffs' attorney ready to pay the
money, but he was not in, and he learned that he was ill at his house.
He did not however go to his house to find him and did not attempt to
find the plaintiffs, who lived in an adjoining town. After the time had
passed and a suit had been brought for the foreclosure of the judgment
lien, he tendered the money to the plaintiffs' attorney, who refused to
receive it. Held-1. That the defendants not having agreed to pay the
sum, but the plaintiffs only agreeing to accept it if paid in time, it was
not a case of accord, but of a condition precedent to the right of the