bility, may never occur again.

Owing to a confusion of ideas that seems to arise in the lay mind, it will be as well, however, to point out the difference between a dying declaration and a deposition taken in consequence of the dangerous illness of any person who is a witness. The latter is made by virtue of 30 & 31 Vict., c. 35, s. 6, which enables the magistrate to take on oath the deposition of any person dangerously ill and not likely to recover. But such deposition must be made on the oath or affirmation of the person so ill, and before such statement can be read in court it must be proved that notice of intention to take such statement has been served upon the person, whether prosecutor or accused, against whom it is proposed to be read in evidence, and that such person or his counsel or attorney had or might have had, if he had chosen to be present, full opportunity of crossexamining the deceased person who made the same.

It will be seen, therefore, that a deposition taken under such circumstances is evidence for either the prosecution or defense, that it is made on oath and has been subjected to the test of cross-examination. A deposition so taken is available in any criminal case. We are not, of course, dealing with commissions to take the evidence of people either too ill or too aged to appear in person at the hearing of a civil

cause.

The case of a dying declaration is very different. The declaration is not taken on oath, but writtén down in the presence of a magistrate and signed by the witness. The principle on which such statement is admitted in evidence is laid down by Eyre, C. B., in the case of Reg. v. Woodcock, 1 Leach, at p. 502:

Now the general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth, a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. It is not admissible in any civil case, though at one time it was held that it might be. Thus, the dying declaration of a subscribing witness to a forged instrument was held to be admissible to impeach it (Wright vs. Littler. 1 W. Bl.. 389), and the dring de. clarations of a pauper, respecting his settlement were admissible; but this doctrine was disposed of by the judgment of Abbott, C. J., in Reg. vs. Inhabitants of Abergwili.

A dying declaration is, therefore,

only admissible in criminal cases, and then only in cases of murder or manslaughter. In Reg. vs. Mead, 2 B. & C. 605, where the defendant, having been convicted of perjury, a rule nisi for a new trial was obtained. While that was pending the defendant shot the prosecutor, and on showing cause against the rule an affidavit was tendered of the dying declaration of the latter as to the transaction out of which the prosecution for perjury arose. Held, that it could not be read, for that dying declarations are admissible only where the death is the subject of the charge, and the circumstances of the death the subiect of the declaration.

There is a curious case in which the dying declaration of the person was admitted, on which the prisoner was being tried, not for murdering the deceased, but another person, by the administration of poison, but in the perpetration of that act he had also inadvertently poisoned the deceased. In that case the court held that the same act caused the death of one as of the other, and that, it being all one transaction, the evidence was admissible: Rég. vs. Baker, 2 M. & Rob. 53.

There are also certain rules which apply to a dying declaration, which we may sum up, briefly, thus: It must have been when the declarant was in actual danger of death, had a full apprehension of his danger, and that death must have ensued. The various circumstances attending the making of such a declaration are evidence to its character. It must also be com plete and unqualified, and it is gov. crned by the ordinary rules of evi dence as to the admissibility of the matter contained therein. From a con sideration of these decisions it will be seen that a dying declaration properly understood, could not have been received in the case mentioned at the commencement of this article. It was a criminal case, but not one of murder or manslaughter, and, therefore, not admissible.

A deposition taken under the act (31 & 32, Vict., 35, s. 6) as we have seen, is a different matter, and is expressly taken in order to be used as evidence, owing to the fact that the witness is so dangerously ill that it is probable death may prevent ris making his statement in open court and the person against whom such evidence is to be used, whether prisoner or prosecutor, bas his interests safeguarded by the fact that he has notice when such deposition is about to be made, and can attend and cross-examine if he so pleases.

Taking, however, the case of a man who is prosecuting two or three persons for a criminal libel imputing to him an indictable offense, certain questions may arise which may give rise to

an interesting discussion. In the first place, though a criminal trial, yet, by 51 & 52 Vict., c. 60., S. 4, every person charged with the offense of libel, before any court of criminal jurisdiction, and the husband or wife of such person, shall be compétent but not compellable witnesses. The same position would arise under any indictment under the Criminal Law Amendment Act. But in the case of libel it often appears to the lay mind that it is the prosecutor himself who is on his trial, and it is this impression which has no doubt given rise to many of the loose expressions of opinion of those who do not regard the case from a legal point of view

No doubt much of this confusion springs from the fact that the distinction between a dying declaration and depositions taken in the case of the serious illness of a witness is not properly appreciated. It is, moreover, deeply rooted in the human mind that the fear of approaching death is such that a man in such a position is bound to tell the truth. But, however this may be with regard to the intention of the witness, there are many circumstances which may affect the credibility of the witness.

Putting aside motives of spite or anger, there is still to be remembered that few people, even with the greatest possible desire to speak the truth, can give an absolutely accurate statement of circumstances which only took a few moments to occur, still less so, perhaps, when the memory and recollection are apt to be impaired by impending death. The law, threfore, has safeguarded, as much as possible, the use of dying declarations, and restricted their employment to cases where the manner of death is the subject of inquiry. Justice of the Peace, in Chicago Legal Newr

JUDGE SCOTT IN CONTEMPT.

Judge Cunningham R. Scott, famous for many reasons as one of the judges of the district court of Douglas county, was cited yesterday by the supreme court to appear Dec. 7 and show why he should not be fined for contempt. This order was issued by the supreme court on relation of Attorney L. D. Holmes of Omaha, representing the George R. Dickinson Paper Company. The principal cause for complaint against Judge Scott is his willful refusal to enforce a mandate of the supreme court issued last January in the case of Ackerman vs. Ackerman, a suit involving a distribution of assets of the firm of Ackerman Bros. & Heintze. Under the mandate of the supreme court there if $2,050.66 due the George R. Dickinson Paper Company. Another cause for complaint is that Scott has illegally issued an injunction

against Attorney Holmes proceeding in the supreme court against the receiver of the firm's assets, because the receiver has, failed to settle according to the supreme court mandate

History of the Case.

The relation made by Louis D. Holmes, attorney for the George R Dickinson Paper Company, is a com plete history of the case. The paper company, as appellant in the case of Ackerman vs. Ackerman, shows that the supreme court, upon a final hearing of the case, made an order, Jan. 20, 1897. directing John H. F. Lehman receiver in the case, to pay to the de fendant paper company, within thirty days from that date, a sum of money, which, together with the money to be received from the clerk of the district court, would be equal to $2,782.87, for said company's unpaid distributive portion of the moneys arising from the firin assets of the firm of Ackerman Bros. & Heintze; that there was paid upon said order by the clerk of the district court of Douglas county, on Feb. 5, 1897, the sum of $732.21, leaving balance due to the paper company of $2,050.66 under the order of the supreme court

This amount was demanded of the receiver, but no part of it has been paid. On Jan. 30, 1897, a mandate from the supreme court was filed and recorded in the district court of Douglas county, which said mandate directed the district court of Douglas county to carry into effect the provisions of the decree of the supreme court.

Efforts have been made to enforce this mandate in the lower court. Motions for enforcement have repeatedly been argued before Judge Scott, but the motions became lost, were renewed, and Judge Scott has refused to dispose of them. The cause was transferred to Judge Scott's docket, and he is the only judge who is now authorized to make any order or to carry into effect the decree of the court.

In the meantime Receiver Lehman filed his motion in the district court asking to be discharged, and also that his bondsmen be released from liabili ty. This motion was repeatedly before Judge Scott. It was invariably met by a motion from the paper company to enforce the supreme court mandate. Both these motions were lost and had to be supplied again.

The paper company claims the receiver gave no sufficient reason why he should be discharged, and did not claim he was unable to pay the paper company's judgment.

Stultification.

The paper company finally asked Judge Scott to make an order requiring the receiver to pay $2,050. Scott said no such an order would ever come from his court; that he had once ordered the receiver to distribute assets on hand, which had been obeyed, and

he had discharged the receiver, and could not execute the supreme court mandate without stultifying himself, and said: "I shall protect the receiver, at all hazards." Scott used these werds in speaking of the mandate: "There is more back of this case than there is in it. There never was such a decree in any court on earth." Attorney Holmes adds that Judge Scott used many absive and contemptuous epithets concerning the supreme court.

Finally, on Sept. 18, 1897, the paper company filed an information in the supreme court asking that Receiver Lehman be required to show cause why he should not be fined for contempt for failure to comply with its orders. This was to have been called up in the supreme court by the paper company Sept. 21. On Sept. 20 Receiver Lehman and A. N. Ferguson, his attorney, filed a petition in the district court of Douglas county praying for an injunction against Attorney Holmes, restraining him from making such application to the supreme court and from proceeding in the matter of obtaining such an order as was asked. Judge Scott issued the order of injunction and set the hearing for Sept. 28. On the following day Judge Scott granted the injunction. In this it is shown that Judge Scott has attempted to obstruct, without jurisdiction, the proceedings of the supreme court. Therefore, Attorney Holmes asks that Judge Scott be cited to appear and show cause why he should not be fined for contempt.

The order citing Judge Scott to aprear, issued by the supreme court, is as follows:

"On reading the relation of the George H. Dickinson Paper Company and Louis D. Holmes, from which it has been made to appear to the court that the Hon. Cunningham R. Scott, one of the judges of the Fourth judicial district has wilfully refused and still refuses to carry out or enforce the mandate lately issued by this court to the district of Douglas county, in a cause wherein Emil C. Ackerman et al. are plaintiffs, and Gus A. Ackerman, et al. are defendants, it is ordered that said Cunningham R. Scott show cause on or before the 7th day of December, 1897, whether, and if so, why he has so refused and refuses to carry out and enforce said mandate."

Several years ago Judge Scott was cited to appear before the supreme court for contempt for failing to carry out the terms of a mandate. He filed a statement, and was let off with a fine.--Nebraska Legal News.

ROBERT G. INGERSOLL

The story of Col. Robert G. Ingersoll's retirement from the active practice of law has been expected for some time. When he removed from his Pe

oria home some years ago to New York he signalized his advent into the Eastern metropolis by entering the court rooms of Manhattan Island and Brooklyn with the exuberance of a boy fresh from college. He arose early in the mornings, and long before wagons began drowning other noises along William street he could be found in his office. Often did he burn the midnight oil so late as to give the slanting shadows of the early morning sun a chance to take its place. His great reputation as an orator had preceded him, and his residence in New York was of less duration than two months before his fees grew apace with those of Rufus Choate, Elihu Root and William M. Evarts. At first he enjoyed his new surroundings. The change of scenery so different from the agrestic prairies of Peoria seemed charming. New friends sprang up around him as quickly as do the buds of dogwood trees give birth to blooms when an April shower falls upon them. Lawyers bade him welcome everywhere, and sedate judges lent him listening

ears.

He was soon the guest of millionaires; then he joined downtown clubs, and so on. Before he had been in New York a year he was a well known figure in the Wall street cafes, clubs and all the big court. rooms of the island. Then, in an ecstatic moment, he sold his Illinois home and bought a residence in Harlem. His house became a resort for the merry and the light of heart. Money fairly leaped into his lap. His law offices at No. 58 William street was thronged with clerks and assistant attorneys. The newspapers had something to say about him every day, and for a while he swept things before him-became the leading lion, as it were just as a French actress becomes the only real star as soon as the ship bearing her to American soil passes Fire Island. But the real lawyers "snubbed" him, for some reason or other, saying that he was superficial, lacked judgment, and that his only virtue lay in the fact that he possessed a musical voice; that his gestures were graceful and his rhetoric and diction superbly ele gant. That and nothing else. Col. Ingersoll soon had a “neutrality” case to try. It came up for argument before the supreme court at Washington, and two of the New York attorneys who had failed to receive the colonel with that warmth of cordiality that makes a man feel welcome, were in the court room at the time of the trial. It was Col. Ingersoll's first "neutrality' case, and as he arose to address the court he appeared ill at ease. He had talked for an hour, perhaps, when he said:

"May it please the court to correct me if I proceed wrong in this case. It is my first one of such character, and if my procedure be not in line with the

way such cases are usually presented I beg the court to inform me."

Without a moment's hesitation Chiet Justice Waite said to him: "Proceed, sir, proceed. The court is learning from you."

From that moment his ability as a lawyer needed no further proof for the two New York gentlemen who were listening to his argument.

man

Millionaires and corporations gave him the most of his employment, but occasionally he drifted into criminal practice. He disliked criminal law, and has always entertained a contempt for the usual jury that was elected to pass upon a man's liberty, and it was this feature of the practice that made it odious to him. Still, he oftentimes appeared for defendants; seldom, however, for the prosecution. Years ago he appeared as attorney for the state in a murder case. The accused was convicted mainly because of Col. Ingersoll's appeal to the jury. The was hanged. Subsequent events proved that he was innocent. Since then the great atheist has been averse to participating on the side of the prosecution. About the time he went to New York the gambling element along Sixth avenue and from Fourteenth to Thirty-second street had many cases to try. At Jake Smith's, who now keeps a saloon at the corner of Twenty-eighth street and Sixth avenue, there one night congregated about twenty professional counterfeiters, card-sharps, green-goods men and the like. They discussed attorneys, and when the night was over they had agreed to band together and to employ Ingersoll to defend them when legal defense became necessary. The first case given the lawyer was one in which a Coulson was man named charged with counterfeiting $1,000 notes. Coulson had been arrested, and a spurious bill of the above denomination had been found upon his person. Col. Ingersoll appeared for him.

The chief prosecuting witness was a man named Jordan, a kinsman of Col. Jordan of the New York subtreasury, who was an expert in detecting counterfeit coin. Col. Ingersoll held the $1,000 bill in his hand. He would lower it, raise it again and then place it in such a manner as to catch every angle of the eye.

"Mr. Jordan, you say that this is counterfeit?" asked the colonel, in a very serious tone, as he held the piece of paper in his hands. The reply was in the affirmative. Then he lowered his hand that contained the bill be tween his knees and asked: "Do you mean to say this bill is counterfeit?"

Mr. Jordan thought that the colonel had changed bills on him, and replied: "No; I didn't say anything of the kind."

"Then, Your Honor," said Ingersoll, addressing the judge, "I move the case

be dismissed," and before the prosecution could make a counter move the defendant had been discharged. As he started from the court room Coulson told his lawfer to keep the bill as his fee. When the note was presented at the subtreasury for change, it was stamped as counterfeit. Six months elapsed, and one night Col. Ingersoll was at Rector's cafe in this city. As he went to settle his bill for his meal a gentlemanly-appearing fellow approached him and asked him if his name was Ingersoll. Then, before the lawyer had time to speak, $1,000 in bills was thrust into his hands, and Coulson walked rapidly away, remarking as he did: "You will find these good ones," and they were.-J. S. Evans, in Chicago Times-Herald.

Abstract of Recent Cases.

The fact that a notary public is secretary and treasurer of a corporation is held, in Horbach vs. Tyrell (Neb.) 37 L. R. A. 434, insufficient ta raise the presumption that he is a stockholder, or to make an acknowledgment of a mortgage to the company, which was taken by him, invalid.

The subsequent insanity of the maker of notes given to aid the enterprise of providing a library building for a board of education is held, in School District v. Stocking (Mo.) 37 L. R. A. 406, insufficient to prevent liability on the notes, if the school district, on the faith of the notes, had expended moneys or incurred liabilities in promoting. the enterprise. Such notes are held to be sufficiently delivered when placed in the hands of a third person to be delivered to the board of education wren called for.

The right of a passenger to take packages of groceries for the use of his family with him into a passenger car is denied in Bullock v. Delaware, L. & W. R. Co. (N. J.) 37 L. R. A. 417, when the terms of his ticket entitle him to "personal passage." But it is held that the officers of the railroad company cannot lawfully take the packages away from him by force afer he enters the car, although, if he refuses to remove them, he, with his packages, may be removed without unnecessary force.

A parol sale of growing timber is held, in Leonard v. Medford (Md.) 37 L. R. A. 449, not to relate to an interest in lands within the meaning of Sec. 4 of the statute of frauds, and if the purchaser is placed in full possession, and commences performance of his contract, this is held sufficient to prevent repudiation of it by the seller on the ground that it is within Sec. 17 of the statute relating to sales of other property above a specified value.

An order drawn by a married woman upon the executor of her father's estate is held, in Freeman's Appeal (Conn.) 37 L. R. A. 452, to be subject to the laws of her domicil, where she signs the instrument and it is accepted in that state, although it is dated in another state and is mailed by an agent of the payee to the payee in another state.

The agreement of the plumbers' association to the effect that the members will not deal with wholesale dealers who sell to any persons who are not members of the association is held, in Macauley v. Tierney (R. I.) L. R. A. 455, to be lawful, and not to constitute a conspiracy, since the object of the combination and the means adopted for its accomplishment are lawful.

A loan of money made without the license required by the Idaho statute for doing such business is held, in Vermont Loan & T.. Co. v. Hoffman (Id.) 37 L. A. R. 509, to be enforcable, as the statute merely makes the act a misdemeanor, and provides for suit to recover the license tax, and the act is neither malum in se nor malum prohibitum.

The disability of an alien to inherit, imposed by the laws of a state, is held, in Opel v. Shoup (Iowa) 37 L. R. A. 583, to be removed, so far as the subjects of the King of Bavaria are con cerned, by a treaty between the United States and Bavaria

Keeping large quantities of dynamite and gunpowdr in a wooden store in a thickly-settled portion of an incor porated town, in close proximity to many buildings and persons, is held, in Radder v. Koopman (Ala.) 37 L, A. R. 489, to constitute a nuisance which will render the proprietor liable for damages caused to other persons in case of an explosion, even if this is due to a fire which originated without his fault on the premises of a third person.

But it is held also, in Kinney v. Koopman (Ala.) 37 L. A. R. 497, that it will not be liable for damages of which the eplosion was not the proximate cause,-as, for the destruction of a building which would have caught fire and been destroyed from other causes independent of the explosion. Such a keeping of explosives is. held to be prima facie negligence.

A representation that notes are as good as gold, made to induce a vendor toi accept them as part of the purchase price of land, and intended and understood to be a representation of facts within the vendee's knowledge, of which the vendor knew nothing, is held, in Andrews v. Jackson (Mass.) 37

L. A. R. 402, to constitute an action able false representation, and not merely an expression of opinion

A constitutional provision requiring laws to prevent gambling, is held, in People, Sturgis v. Fallon (N. Y.) 37 L. A. R. 419, to be not necessarily violated by fixing the penalty for making or recording a bet on a horse race merely a forfeiture of the value of the wager, to be recovered in a civil action.

Discrimination between competing omnibus lines at a railroad depot, by giving one of them a more favorable stand than is allowed to the other, where both are given access to the grounds, is held, in Lucas v. Herbert (Ind.) 37 L. R. A. 376, insufficient to constitute any legal ground of complaint against the railroad company.

An injunction against an appropriation on a municipal budget for the lawful purpose of removing garbage, is denied in State, Badger v. New Orleans (L. A.) 37 L. A. R. 540. at the suit of one who claimed to have a right to remove the garbage under a contract which is disputed and in litigation, although it is said that any party in interst may have an injunction against an appropriation for an illegal purpose.

A ded of trust, and not an assignment for creditors, is held, in Tittle v. Vaanleer (Tex.) 37 L. R. A. 337, to be made by an instrument transferring property to a trustee, with authority to sell and convey it in the name of the grantors, "with a provision for returning to them any surplus." With the case are marshalled the authorities of the different states distinguishing between an assignment for creditors and a preference by mortgage or sale.

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