ST. LOUIS, JULY 16, 1886.

CURRENT EVENTS.

DEATH OF JUDGE DAVID DAVIS.-By the recent demise of Judge David Davis, of Illinois, for many years one of the Justices of the Supreme Court of the United States, who died at Bloomington, in the seventy-first year of his age, the legal profession has lost one of the most honored and distinguished of its members. Eminent as he had been at

the bar, and prominent and successful in political life, Judge Davis was most distinguished upon the bench. For the judicial office he was singularly fitted by nature, as well as the training of his long professional life. Calm in his temperament, and impartial in his judgment, always ready to hear and to do justice to both sides of any question, he possessed the qualities of the perfect ideal judge, the very qualities which unfitted him for the struggles of partizan politics. Few men have ever held political office who had so little of the partizan politician in their nature, and very few men have ever held judicial office whose fairmindedness and sense of justice were so little marred by political or personal predilections. His career has been an honor to the country, his State, and the profession.

FAITH IN THE ADMINISTRATION OF THE LAW. -In sentencing Jaehne, the convicted New York Alderman, some month or two ago, Judge Barrett "improved the occasion," (to use an antique clerical phrase,) by delivering a short but very sensible discourse, over the head of the prisoner, to the community at large, on the faith or want of faith of the public in the administration of the law. He said:

"The saddest thing of all about your case is the doubt which pervaded many good and honest minds of your conviction. There was not a doubt of your guilt. It was universally conceded, when the evidence was in, that the case against you was clear, convincing and Vol. 23.-No. 3.

good in our cities and in our laws, of an increase of faith in the validy of our institutions, and the efficacy of impartial laws in those institutions, There is also another lesson, and that is a lesson not of supporting faith, but of the destruction of faith-for you and such as you have had a vital faith in the supremacy of evil, and in the impossibility of working out good results, believing that the very corruption of which you have been convicted is almost universal. That faith will be lessened by your conviction, and the other and better faith will be increased."

It will be observed that Judge Barrett's remarks apply chiefly to urban populations, and to crimes of dishonesty. They are equally true with reference to the rural districts, and to general crime, including crimes of violence. No matter how remote or unsophisticated the community may be, the belief is general, that if a rich man or a "big" man commits a crime he will escape punishment. This results from a want of confidence of the people in themselves and in each other, as well as in the law and its officers. People are very ready to believe that juries will not convict, or in other words, that they themselves will fail to discharge their duty when the occasion for its performance shall arise.

This distrust, added to the want of confidence in the officers of the law, and the popular idea of its general uncertainty is one of the chief sources of the prevalence, in some sections of the country, of lynch law, and in all others of a strong tendency to it whenever an offence of unusual atrocity is committed.

For example, in a southern city, less than a year ago, a man committed a murder, a very atrocious crime, but he was arrested, examined, fully committed to jail for trial upon evidence amply sufficient to convict. Two nights afterwards he was taken out by

armed men and put to death. The question is, why was this done? Why cannot the people, for these armed men were a part of the people, trust their own laws which they have made, their own officers whom they have elected, their own juries to be taken out of their own number? The answer is, they distrust themselves and each other. Their experience and observation have taught them that lapse of time, with its softening influences, will so tone down the public sentiment, that when the legal delays, prolonged as far as zealous counsel can prolong them, shall have been exhausted, a jury will be impanelled who will either acquit outright, or assess a very moderate term of imprisonment.

In the country as in the city, the small criminals only are caught and caged, the greater, break the net and escape. There are exceptions, such as Tweed, Ward, Jaehne, but it is noteworthy that these are pecuniary offences. As to crimes of violence-When and where was any man bearing the port and similitude of a gentleman hanged for murder? We cannot recall a single instance later than that of Dr. Webster, of Boston, now nearly fifty years ago. And how many such men in the United States, have, within those fifty years, committed murder?

DIVORCE LAW-THE QUEEN'S PROCTORSIR CHARLES DILKE.-Our attention has recently been attracted to the attempt of Sir Charles Dilke, to re-enter the scandalous Crawford v. Crawford and Dilke divorce suit. This case is again pending upon the intervention of the Queen's Proctor. It seems that this officer, acting under the direction of the Attorney-General, filed a plea alleging that the decree was pronounced contrary to the justice of the case, with other allegations which the court regarded as surplusage. Mrs. Crawford also filed her petition, asking to be allowed to support her former admissions. Sir Charles Dilke, too, applied to be restored to his position in the suit to defend himself against the Crawfords, both husband and wife. The court refused the application of Sir Charles Dilke, as well as that of Mrs. Crawford, upon the ground that it was not

competent for it, under the statutes, to grant (in effect) a new trial, but its duty was confined to hearing what the Queen's Proctor, as a public officer, had to adduce against the correctness of the decree pronounced in the case. Sir Charles Dilke appealed from this decision. The Solicitor's Journal of a recent date (June 19,) says on this subject:

"The appeal by Sir Charles Dilke from the decision of Sir James Hannen in the Crawford-Dilke case will settle an interesting question on the practice as to intervention by the Queen's Proctor-viz., whether such intervention is to be virtually equivalent to a new trial. It is not necessary to speculate on the result of the appeal, but we may point out that the practice as to intervention is, to some extent, an excresence upon the original statute (20 & 21 Vict. c. 85) by which the Court of Divorce was established. The Matrimonial Causes Act, 1860 (23 & 24 Vict. c. 145), first provided that every decree for a divorce should, 'in the first instance, be a decree nisi, not to be made absolute till after the expiration of such time, not less than three months from the pronouncing thereof,' as the court should direct, and this interval was extended to six months by the Matrimonial Causes Act, 1866 (29 & 30 Vict. c. 32), s. 3. Sec. 7 of the former Act then goes on to enable any person, within the specified period, 'to shew cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not brought before the court,' and on cause being thus shewn, the court may make the decree nisi absolute, or reverse it, or require further inquiry.'”

We are of opinion that there is a lesson for us, on this side of the water, in the legislation cited in the foregoing extract. We do. not generally favor the "law's delay," but we think that in divorce cases the practice of rendering a decree of divorce nisi, not to be made absolute for six months after its rendition, would be a wholesome check upon the unseemly haste with which re-marriage so often follows legal separation. The delay would in many cases give time for reflection and possibly afford a locus penetentiæ-not that the parties have not already had plenty of repentance, but probably not of the right sort, nor for the proper reasons. The whole subject of divorce is, at best, unpleasant, ex

hibiting, as it often does, the most revolting vices and the most poignant misery incident to modern society. It is the policy of our laws to make marriage as easy as is consistent with proper precautions against the hasty union of persons who, from nonage, ought not to be married; with reference to divorce there should be a reverse policy, it should be treated as, at the best, a sad necessity, and never granted until every other happier solution has become manifestly impossible. Under the practice of most of our States, the proceedings in divorce cases is unduly summary A petition is filed, an answer, or very frequently a default, a few depositions taken, a few witnesses examined, and a final decree follows, often at the same term of the court, severing forever the bonds of a relation, which most people believe was instituted by God himself, not to be severed, save for one cause only.

"It is a solemn thing to be married" said a grave father to his daughter. "Yes," was the pert reply, "but it is a deal solemner not to be." More serious than either the responsibilities of matrimony, or the forlorn status of celibacy, is the act of severing the marital relation. It is a mere platitute and truism to say that a dissolution of marriage bonds should not be lightly sought; that it should not be lightly granted, is an admonition which cannot be too often, or too seriously impressed upon our legislatures and courts. That the former need such admonition is manifest from the long list of statutory causes of divorce which so steadily grows under legislative manipulation; and that the latter require similar cautions is equally clear from the liberal construction they give to divorce statutes, and especially from the enormous aggregates of grists, that the "divorce mills," as the newspapers suggestively call them, are constantly turning out.

We think, therefore, that the six months post-divorce period of probation might well be borrowed from our English friends, for it is a practice worthy alike of commendation and imitation.

NOTES OF RECENT DECISIONS.

VOLUNTARY ASSIGNMENT IN FAVOR OF CREDITORS-EXTRA-TERRITORIAL OPERATION OFATTACHMENT COMITY CAN ONE STATE BE REQUIRED OR EXPECTED TO ENFORCE THE LAWS OF ANOTHER STATE.-We publish, in the current number of the JOURNAL, two cases involving the question whether an insolvent debtor can transfer by a general assignment of his property for the benefit of his creditors, personalty situated in another State, so as to defeat the liens of attachments levied upon such property by his creditors. One case was decided in Massachusetts,' the other in Texas.2 The cases were similar in all legally essential points, but the courts arrived at conclusions precisely opposite to each other.

The facts in the Massachusetts case were, that the debtors, residents of New York, assigned to a trustee for the benefit of their creditors, all their property, including certain assets, the legal situs of which was Boston. Afterwards, the plaintiff, a creditor, and resident of Boston, caused an attachment to be levied on the Boston assets. The Supreme Judicial Court held that the assignment was inoperative, as against an attachment duly issued in accordance with the laws of Massachusetts.

This decision is based upon the principle, that the laws of one State cannot be executed in another, except by comity, which does not require that they should be so executed when it would be in contravention of the public policy of the State, or without the sanction of its laws, or injurious to the best interests of its citizens. It is the settled policy of Massachusetts, re-affirmed in this ruling, that no voluntary assignment for the benefit of creditors, the only consideration of which is the acceptance of the trustee, is valid against attachments, except so far as assented to by creditors, and that assent must be shown affirmatively. The rule seems to be well es

1 Faulkner v. Hyman, S. J. Ct., Mass., N. Eng. Rep Vol. 2, 181.

2 Weider v. Maddox, S. C. Texas; Texas Law Rev., Vol. 6, 371.

3 Widgery v. Haskell, 5 Mass., 145; Swan v. Crafts, 124, Mass. 453; Pierce v. O'Brien, 129 Mass. 314; Ingraham v. Geyer, 13 Mass., 146.

tablished in that State, that its courts are not bound to enforce a foreign contract, and will not enforce it against the interests of citizens of the State.4

The Massachusetts rule as to assignments for the benefit of creditors, as established in Widgery v. Haskill," is commented on by Mr. Justice Story, with manifest doubt as to the value of the case as establishing a principle of law, though he has no doubt it was rightly decided upon its own circumstances. However that may be, it did certainly establish the principle that an assignment for the benefit of creditors, whether made within or without the State, must receive the assent of the creditors, or it will not be valid. This doctrine is believed to be peculiar to Massachusetts. The general rule as as to the jurisdiction of personal property is thus stated by Mr. Justice Story:7

"It is well settled as a doctrine of international jurisprudence, that personal property has no locality, and that the law of the owner's domicile is to determine the validity of the alienation thereof, unless there is some positive or customary law of the country where it is found, to the contrary." In a later case, however, the Supreme Court of the United States modifies this dictum.3 Mr. Justice

Davis says:

that the voluntary

"The theory transfer of personal property is to be governed every where by the law of the owner's domicile, proceeds on the fiction of law that the domicile of the owner draws to it the personal estate he owns, wherever it may happen to be located. But this fiction is by no means of universal application, and, Judge Story says: 'yields whenever it is necessary for the purposes of justice that the actual situs of the thing should be examined.' It has yielded in New York on the power of the State to tax the personal property of one of her citizens, situated in another State, and and always yields to 'laws for attaching the

as

4 Ingraham v. Geyer, supra; Blake v. Williams, 6 Pick. 286; Fall etc Co. v. Croade,15 Pick. 11; Martin v. Patter, 11 Gray 47; Green v. Van Buskirk, 5 Wall. (U.S.) 307.

5 Supra.

6 Halsey v. Whitney, 4 Mason, C. C. 216.

7 Black v. Zacharie, 3 How. (U. S.) 514.

8 Green. v. Van Buskirk, 7 Wall. 150.

Judge Davis proceeds: "If New York cannot compel the personal property of Bates, (one of her citizens) to contribute to the expenses of her government, and if Bates had the legal right to own such property there, and was protected in its ownership by the laws of the State; and as the power to protect implies the power to regulate, it would seem to follow that the dominion of Illinois over the property was complete, and her right perfect to regulate its transfer, and subject it to process and execution in her own way, and by her own laws."

So far as comity and inter-State relations of parties are concerned, the Massachusetts case1o proves too much, and can hardly be regarded as an authority upon that point either way. The criterion by which the validity of a voluntary assignment is to be judged in that State is, not the citizenship of parties, nor the situs of the property, but the affirmative assent of the creditors; with that assent the assignment is good, whosoever may be the parties, or where the situs of the property; without it, the assignment is invalid. The ruling upon comity in that case, it would appear, therefore, was an obiter dictum.

The Texas case," similar in some respects, is very different in others; the facts were, that Spiro, a citizen of Missouri who also carried on business in Texas, executed, under the laws of his domicile, a general voluntary assignment of all his property, including his Texas assets, but excluding his statutory exemptions; that the assignee, having complied with the Missouri law by giving bond, &c., took possession of the Texas property but did not record the assignment in Texas; that afterwards, at the instance of a creditor, the defendant, sheriff of the county, levied an attachment on the goods. The Supreme Court of Texas held that the assignment so executed in accordance with the laws of Missouri passed the title to the goods, and that the attachment was invalid. For the grounds

9 People ex rel v. Commrs. of Taxes, 23 N. Y. 225.

10 Faulkner v. Hyman, supra.

11 Weider v. Maddox, supra.

of this decision, the reader is referred to the opinion itself, which appears in full in this number of the JOURNAL.

In may be remarked that in the view which the Supreme Court of Texas takes of this case, there is a departure from that usually taken in cases involving the same principle. The court holds that the right which it enforces is a common law right, not a right acquired or held under the law of Missouri, consequently that the principle of comity does not operate in the matter at all. It would seem however, that the assignment was made under the law of Missouri, according to its forms, and the limitations, as to bonds, responsibility to courts, &c., prescribed by the laws of that State. Hence, in our view, the Supreme Court of Texas, in this case, does enforce the common law as modified by the statutes of Missouri, or in other words, the law of Missouri and therefore the principle of comity does come into play.

That, however, is not material, for the ruling can be sustained upon the principle of comity. The assignment seems to be in accord with the law of Texas, contravenes no law, custom, or rule of public policy of that State, and is therefore good under the rule of comity on that subject, which may be thus expressed: "If a general voluntary assignment for the benefit of creditors be made according to the law of the domicile of the assignor, it will be valid to pass all the personal property of the assignor wherever situated, unless its operation is limited or restrained by some local law or policy of the State where the property is found.” 12

4. Independent Recollection Necessary. 5. Summary of the Conflicting Views. 6. Arguments in Favor of both Views.

1. General Principles of the Practice.-It is a well settled principle in the law of evidence that a witness may, under proper circumstances, refer to written or printed memoranda, documents and papers, to refresh and assist his memory, concerning facts about which he is testifying.1

But this practice is attempted to be confined within certain limits, though not always accurately prescribed, yet, perhaps of sufficient definiteness to meet most, if not all, ordinary requirements. This practice is largely discretionary with courts. They are required to take great care to guard against forgery, interpolation, etc., thus preventing the abuse of the right. The chief objection to it being that the paper referred to operates upon the mind of the witness like a leading question. But it is rendered necessary by the frailty of human memory which, as every person knows, is such that very few witnesses are able to testify as to particular dates, numbers, quantities and sums after any considerable lapse of time, without reference to papers or memoranda.3

The witness, with his memory thus quickened and refreshed, is enabled to testify with greater clearness and accuracy than without the use of the paper, even though he remembers quite distinctly the general facts concerning which he is giving evidence. In cases involving long accounts this practice is rendered indispensable and the authorities concur in sustaining it.*

1 Ford v. Commonwealth, 130 Mass. 64; S. C. 39 Am. Rep. 426; Queen v. Langton, 22 Q. B. D. 296; 1 Green. on Ev. (14th Ed.) §§ 436-439 and notes.

2 Harrison v. Middleton, 11 Gratt. (Va.) 527, 544; Merrill v. Ithaca, etc. R. R. Co. 16 Wend. (N. Y.) 600; Chapin v. Lapham, 20 Pick. (Mass.) 467.

3 Feeter v. Heath, 11 Wend. (N. Y.) 477, 485.

4 Wise v. Phoenix Ins. Co. (N. Y. 1886) 4 N. E. Rep. 634; Affirming S. C. 31 Hun. 87; Lawson y. Glass, 6 Col. 134, 135; Howard v. McDonough, 77 N. Y. 592; McCormick v. R. R. Co., 49 N. Y. 303; Driggs v. Smith, 36 N. Y. Super. Ct. Rep. 283; Commonwealth v. Jeffs., 132 Mass. 5; Commonwealth v. Ford, 130 Mass. 64; S. C. 39 Am. Rep. 426; State v. Miller, 53 Iowa, 154, 209; Cooper v. State, 59 Miss. 264, 272; Robertson v. Lynch, 18 Johns. (N. Y.) 451; Clough v. State, 7 Neb. 320; McCausland v. Ralston, 12 Nev. 196, 217; Kent v..Mason, 1 Bradwell (Ill. App.) 466, 471; Coffin v. Vincent, 12 Cush. 98: Rambert v. Cohen, 4 Esp. 213; Jacob v