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THE GREAT SCANDAL TRIAL. The lawsuit of Mr. Theodore Tilton against Rev. Henry Ward Beecher, "like a wounded snake drags its slow length along." We wish we could hear the "needless Alexandrine" that should "end the song." This case is nominally between Messrs. Tilton and Beecher, but to our view it might more appropriately be entitled Beach, Fullerton and others against Evarts, Porter and others. It seems to have degenerated into a mere talking match between these eminent counselors, and we are inclined to believe, from the manner in which it is conducted, that the only useful, or the most useful, purpose it will serve, will be to advertise these already wellknown professional gentlemen. We originally intended to say something of the case on its termination, but have concluded that if we expect to have our own say concerning it, we would better not wait for that distant and improbable event, which looks as far away as the millenium or the discovery of the philosopher's stone, but announce our opinions to the contemporary generation, and while we are in unimpaired possession of such intellectual faculties as nature has bestowed on us. We wish to utter a word of warning to the distinguished judge presiding on this trial and to the aforesaid eminent lawyers and their associates. They have procured the legislature to grant a new lease of life to the court in which they are engaged, but how about their own lives? Would it not be a wise measure of precaution to have these also extended? Otherwise we see not how Messrs. Morris and Shearman can expect to hear the verdict, but opine that they must content themselves with bequeathing the little unpleasantness, like freedom's battle, "from bleeding sire to son," and let their heirs or assigns bring to a conclusion what their ancestors shall have so fiercely inaugurated. It would be well, also to have the lives of the parties on the record insured, or to induce the government to bestow a pension on them, or to have annuities conferred on them, or inoculate them with the asthma, or to adopt some other of the well-known methods of prolonging human existence. Unless some such measures are taken, we fear that the result will be similar to that in Warren Hastings' trial, where, according to Macaulay, "those who having been present on the first day, now bore a part in the proceedings of the last, were few, and most of these few were altered men;" where "the arraignment had taken place before one generation, and the judgment was pronounced by another;" where, "of the one hundred and sixty nobles who walked in the procession on the first day, sixty had been laid in their family vaults;" and where every thing in the court-room reminded the spectator "of the instability of all human things, of the instability of power, and fame, and life." We really think, after a due consideration of the chivalric Mr. Beach's heart-rending speech on the law point whether the

plaintiff is a competent witness, that the counsel would do well to regard the inculcation of Hudibras. "For brevity is always good,

When we are or are not understood."

But Mr. Morris having made a three days' speech in opening for the plaintiff, Mr. Tracy is bound not to be behind for the defense, and we are told that he is now engaged in committing his speech to memory. We would like to be judge in this case; if we were, we would suggest to these loquacious gentlemen to offer to compromise their oratorical debts for ten per cent. We guess that the public would accept the proposition.

Another thing that strikes us is, that the counsel seem to be using up their thunder too fast in the adolescent stages of the case. If such lofty rhetorical flights are essayed now, we suspect that the counsel will soar away out of sight in the summing up. If we have such things in the green leaf, what may we not expect in the dry? If Mr. Tilton is such a sufferer and Mr. Beecher is such a sinner, at the end of five weeks, what may not their respective conditions of detriment and malfeasance be, say at the end of three months? Let the counsel, however, remember the case of the gymnast who took such a long run in order to essay a great jump, that on arriving at the scratch he was completely out of breath.

Another idea which we gather from this trial, is that it serves to demonstrate the inefficiency of crossexamination. The popular idea of cross-examination is that it is a kind of miraculous ram's horn, on the blowing of which almost any witness must go down like the walls of Jericho. Indeed, we ourselves had rather looked to see the mutual friend, Mr. Moulton, drop all in pieces, when Gen. Tracy tackled him. But the extraordinary Mr. Moulton does nothing of the sort. Like Mark Tapley he seems to think his treatment is "jolly." The more he is ground the sharper he grows, and he not only never loses his temper, but more than once constrains the counsel to look sharply to find their own. After a badgering pro and con for ten days or so, he is able to retort on the counsel who addresses him. "Mr. Tilton-I should say Mr. Moulton, " with "Mr. Beecher - I should say Mr. Tracy." Of course, we are not ourselves trying this case, but it occurs to us that after two or three days' cross-examination of a witness who possesses such an inexhaustible power of twirling his moustache as Mr. Moulton, we should let him alone some. The result of this cross-examination is to confirm us in our longcherished opinion, that ninety-nine questions out of every hundred, asked on cross-examination, are unnecessary or injudicious. The World speaking of the early part of the cross-examination of Mr. Tilton by Mr. Evarts, says: "The cross-examination presented peculiarly the aspect of a parlor debate between a very polite elderly gentleman, and a younger

man very well posted, of a metaphysical turn and bent on setting just right all errors, verbal or otherwise, as he went along." We judge that in this case the cross-examination is serving its usual purposes, of glorifying the counsel and satisfying the clients.

We have also observed that this trial is a good thing for the newspapers. We would like to know the number of persons who, every day, religiously or irreligiously, read every word of the last day's proceedings in the daily journals. We would especially like to know who is the artist who depicts the leading counsel in wood-cuts in the picture papers whose several efforts in this line would, undoubtedly, be pronounced by his respective victims "the most unkindest cut of all." We would like to possess the dramatic sensibilities and the rhetorical affluence of the reporters, who describe for us the precise facial appearance of all the actors in this domestic tragedy at frequent intervals, and who set before us in vivid phrase the electrical phenomena of the lawyers' sarcastic, scathing, denunciatory addresses. We would like to possess the mental discrimination and the manual agility of the stenographer, who seem to take down even the yawns of the judge and the aspirations (we were about to say, execrations) of the counsel. Between the short-hand reporter and the long-hand reporters we get the scene with our coffee every morning. Mr. Tilton's face, like that of Sphynx or Nemesis, according to the taste of the reporter; Mr. Beecher's imminent apoplexy or unruffled composure; Mr. Moulton's easiness or uneasiness; Mrs. Tilton's shrinking and terrified demeanor, or her calm and undaunted self-possession; - all these appearances are described to us daily by the reporters. We don't wonder that in De Quincey's playful essay on Murder as one of the Fine Arts, frequent inquiry was made, “Ubi ille est reporter?” We think that killing a reporter in these times, if not praiseworthy, would be damnum absque injuria.

Again, we are filled with wonder and admiration by the contemplation of the immense mass of useful information on a great variety of subjects which this inquiry is evolving. Politics, religion, metaphysics, ethics, speculation, love, literature both prose and poetry - nothing seems irrelevant. What any one of the counsel does not know of these topics, some other knows, or if not, nobody knows. Then we are led to think of the expense to the public of all this affair. The reporters have ciphered it up at something like $300 per day! And all to enable Mr. Tilton to make the public believe, as he believes, that he is a cuckold, and a patient and prudent one at that! And to what or whose good? Who supposes that the verdict, if there should be one, will change any one's opinion? Tilton's friends will still believe Beecher guilty although he should be acquitted, and if he should be convicted, Beecher's friends will not lose their faith in his innocence.

It is one of those cases where the public can form just as intelligent an opinion as the jury, nay, a more intelligent opinion. Public opinion in Queen Caroline's case was not affected by the verdict of the peers. In any event Mr. Beecher's influence and character are irretrievably impaired, and Messrs. Tilton and Moulton have sunk out of sight in public disgust and contempt. We, therefore, tender Judge Neilson our unsolicited advice to administer to the counsel and witnesses some astringent potion that shall constrain them to abbreviate, and let us, at an early day, have the last of this infamous affair.


THE NEW YORK LUNACY STATUTES. Whether it be true or not that insanity is increasing at a more rapid rate than population, it will certainly be conceded that the laws of our State relating to this class of persons have not heretofore received the attention which they deserve. necessity for a frequent and familiar acquaintance with them not being urgent, and forming no special branch of study with lawyers in general, they have consequently occupied a minor place in the consideration of most practitioners. In 1873 the legislature created a new State officer, under the title of "The State Commissioner in Lunacy," and this gentleman, in his first annual report, called attention to the necessity of a thorough classification of the various statutes relating to the insane. Acting upon this suggestion the senate, on the 24th February, 1874, passed the following resolution:

WHEREAS, The State commissioner in lunacy, in his report to the legislature, has called attention to the necessity of revising some of the laws relating to the insane; therefore,

Resolved, That the Attorney-General and State Commissioner in Lunacy be requested to report to the legislature a codification of the laws relating to the insane, with such suggestions for their amendment as to them may seem proper, and that they be requested to report at as early a day as may be practicable.

On the 31st day of March the commissioners presented their report, to which they had prefixed an explanatory chapter, unfolding the character of their labors. "For the past eighty years," says this report, "the occasional legislation on this subject has been allowed to rest in the various editions of the Revised Statutes, pretty much where it has fallen, sometimes in one title, sometimes in another, on the basis of a | classification which did not sufficiently recognize the entirely exceptional status occupied by the insane as a class. At present, search must be made through acts whose title scarcely prefigures their contents, for personal rights or judicial powers relating to this class of persons; and thus the peculiar status under which they are placed, or the various places of civil obligation under which others are placed toward them, are not readily ascertainable. Thus, also, changes in the constitution of the State have

rendered inoperative past acts, which nevertheless are still to be found as though of binding obligation in the general statutes."

The report then proceeds to give the following synoptical history of lunacy legislation in our State, which we quote in full:

Special legislation for the insane, as a distinct and dependent class, is a measure of comparatively modern date. While it is true that courts have, from time immemorial, been called upon to protect the estates of insane persons from waste at their own hands, or to authorize restrictions upon their liberty, whenever that liberty was dangerous to their own safety or that of others, no allusion to the insane as such occurs in the history of our State legislation previous to 1787, when at section 5. chapter 47 of the laws of that year, it is recited that wills made by idiots or persons of insane memory shall not be effectual in law. 1 Greenl. 387.

The first distinct act providing for the care and custody of lunatics as a class, is that embraced in chapter 12, Laws of 1788, entitled "An act concerning idiots, lunatics and infant trustees," and which gave to the chancellor the same original powers over this class of persons as belong to the lord chancellor of England. 2 Greenl. 53-4.

The true nature of insanity, as a diseased condition, was, however, not yet understood, and its victims were still looked upon as prodigals or madmen, laboring under some form of immoral possession; for, in chapter 41, Laws of 1788, entitled "An act for apprehending and punishing disorderly persons," it is provided in section six, that any two justices may order a lunatic or mad person to be confined, and, if necessary to be chained. This is the first act which treats of the commitment or confinement of lunatics by name, and it also permits any friend or relative to take him under his own care. 1 Radc. 126.

Chapter 139, Laws of 1863, amends the foregoing act.

Chapter 417, Laws of 1864, provides for sales of estates of lunatics.

Chapter 418, Laws of 1864, is an act to inquire into the condition of the insane in poor-houses, asylums, etc., and the result of its operation was the organization of the Willard Asylum in the year following.

Chapter 342, Laws of 1865, is an act to organize a State asylum for the chronic insane, to be known as the Willard Asylum.

Chapter 93, Laws of 1867, is an act to organize the Hudson River State Hospital, assigning to its care the insane of the twenty-two eastern counties. Chapter 895, Laws of 1869, provides for the care of insane criminals, re-enacting parts of chapter 135, Laws of 1842.

Chapter 37, Laws of 1870, amends chapter 417, Laws of 1864, and applies its provisions to idiots and other persons of unsound mind.

Chapter 378, Laws of 1870, organizes the Buffalo State Asylum for the Insane.

Chapter 474, Laws of 1870, organizes a State Homœopathic Asylum for the Insane at Middletown. Chapter 666, Laws of 1871, authorizes judicial inquiry as to sanity of persons under indictment for,

or under sentence of death.

Chapter 571, Laws of 1873, requires licenses to keep private lunatic asylums, to be obtained from the State board of charities, and also created the office of State commissioner in lunacy.

Such is the chronological history of legislation for the insane in our State since the earliest days of its civil organization. Minor acts relating to appropriations for asylums, or appointing commissions to select their sites, or authorizing them to adopt certain provisions of established acts, have been omitted as not bearing directly upon the purposes of this synopsis.

The whole codification of our lunacy statutes as

Chapter 30, Laws of 1801, substantially re-enacts chapter 12, Laws of 1788, omitting only the pro-presented by the commissioners is contained in one vision relating to infant trustees.

Chapter 90, Laws of 1809, gives, among other things, the power to overseers of the poor to contract with the governors of the New York Hospital, for the care and maintenance of lunatics.

Chapter 32, Laws of 1817, empowers lunatics or their committees to convey lands, assign mortgages,


Chapter 294, Laws of 1827, directs the place where, and the manner in which lunatics are to be confined.

Chapter 218, Laws of 1838, relates to the safekeeping of lunatics.

Chapter 135, Laws of 1842, is the act organizing

the first State Lunatic Asylum at Utica. It embraces all the law up to that time regulating the commitment and maintenance of lunatics, and its provisions still form the body of our laws upon these subjects. Subsequent State asylums have, whenever practicable, engrafted the provisions of the act of 1842 upon their own.

Chapter 112, Laws of 1845, relates to the powers

of receivers of lunatics and habitual drunkards. Chapter 446, Laws of 1851, amends chapter 135, Laws of 1842, and grants certain discretionary powers to county judges.

Chapter 502, Laws of 1851, establishes an asylum for idiots.

Chapter 130, Laws of 1858, organizes a State lunatic asylum for insane convicts.

hundred and sixty-five sections divided into eleven titles. With a proper sense of the responsibility of their difficult task they have not overturned, or attempted to remodel that which was found good in the main, though not abstractly perfect. Knowing that statutes must represent continuous rather than temporary necessity, they appear to have preferred leaving the experience of time to show what other changes may still be necessary in a system whose boundaries enter the territories both of equity as well as common law, and whose rules of action must in consequence be alternately deduced from either of these branches of jurisprudence. codification, known as chapter 446 of the Laws of 1874, passed both houses without debate, receiving but one amendment (in the judiciary committee of the assembly) in the form of an additional safeguard against the possibility of illegal commitments of the insane under civil process.


The two sections relating to the commitment of the insane by civil process, and the plea of insanity, when offered by persons under indictment for crime, are entirely new provisions. Of their importance none need to be reminded, and we propose at some

future day to inquire into their legal efficiency, and to determine whether they represent the same advance in the equitable progress of our legislation as has heretofore marked its course in so many other directions.


The law bearing on this subject has undergone some fluctuation in this State. On a subject of such importance in commercial life, it is highly important that we should distinctly and unequivocally understand the nature of one's obligation who writes his name on the back of a bill or note when he is not the payee. A person who so writes his name cannot but recognize that he assumes an obligation of some sort; but oftentimes he may not exactly know what sort of obligation he thus assumes. Is it an obligation of joint maker or promissor, a guarantor, or indorser? It is very essential to his rights or liability to know in which position he is placed; for if he be an indorser, his liability being a contingent one, may never be fixed; whereas, if a guarantor, it is not so conditional, and may more readily attach. It is not a little to be regretted that on a matter of such concern as this, a matter that should be uniform in mercantile usage all over, there is a difference of views and decisions as to the nature of the obligation one thus assumes.

Parsons in his work on Contracts, vol. I, p. 243, refers to this sort of indorsement, and lays it down, that a person who signs his name at the time of the making on the back, may be held as a joint or several maker; while if he signs at a subsequent period, he may be held as guarantor.

To support this position he quotes several decisions, and among them four or five New York cases, which are now entirely inapplicable or overruled, such as Ellis v. Brown, Barb. 282, and one, the case of Brown v. Curtiss, 2 N. Y. 225, is not at all in point, as in that case, there was an express contract of guaranty, Such is often the kind of references we find in textbooks, put in too often after reading an inaccurate syllabus of a careless reporter. Not one of the cases from the New York reports there quoted gives a true statement of the law as it is at present.

Unquestionably, it was formerly the view held in this State, that a person who wrote his name on the back of a note or bill was to be considered either as a joint-maker or a guarantor; and the same view is now held in most of our States. This doctrine was advanced in the case of Herrick v. Carman, 12 Johns. 159, by a suggestion by the court following a case in 3 Mass. 274. The court, Spencer, J., said if it appeared that the indorser in blank put his name on the back for the purpose of giving the maker credit with the payee, that he should be considered liable to such payee, and the indorsement might have been converted into a guaranty to pay the note, if the maker did not. This opinion, though obiter, was subsequently adopted and applied in the case of Nelson v. Dubois, 13 Johns. 175, and in Campbell v. Butler, id. 349. This doctrine, that such an indorser might be a guarantor was undermined in Dean v. Hall, 17 Wend. 214; and was finally overthrown in the court of errors, in the case of Hall v. Newcomb, 7 Hill, 416. This case established the principle that such an indorsement can be made available to the payee as such, and so as to hold the party making it as an indorser for the benefit of the payee, and that he cannot be charged other than as

indorser. The rule settled in this case was re-asserted in Spies v. Gilmore, 1 N. Y. 321; and the old theory finally discarded, that by any implication of law a

contract of guaranty could be made out from the fact of a person so indorsing his name.

The difficulty in arriving at this position, to many, was the apparent contradiction that arises in an indorsement of this kind of a first indorser being able to sue a second indorser on negotiable paper. It was maintained that when the person wrote his name on the back, it was understood the payee should be a first indorser, ex vi termini, and that the liability of the person who thus wrote his name is only by the lex mercatoria, to a subsequent holder. This difficulty was brought out in the case of Waterbury v. Sinclair, 7 Abb. 404; but a way of getting over this difficulty was suggested, by having the payee indorse, without recourse," and taking the indorsement of the party who wrote his name in blank, as the source of his title. This position would seem to have had authority from Lord Kenyon, who impliedly admits that there may be circumstances under which a prior indorser may recover against a subsequent one. Bishop v. Hayward, 4 T. R. 470.

The doctrine with its necessary implications and qualifications was afterward fully set forth and declared in Moore v. Cross, 19 N. Y. 227, which has ever since been a controlling case. It was there laid down, that an indorser of this kind is liable as such to the payee, who received the note on the faith of such indorsement, and that the indorsement by the payee without recourse is a mere matter of form, which is implied.

As a result of the establishment of this doctrine as above expressed, there are several cases which are no longer binding, such as Ellis v. Brown, 6 Barb. 282; Nelson v. Dubois, 13 Johns. 175; and Campbell v. Butler, id. 349. In Herrick v. Carman, 12 id. 161, the principle of these latter cases was suggested, as obiter; but this case on the facts contained a valuable principle that has since been recognized and asserted in many subsequent cases. This was the principle that when an indorser cannot recover against a subsequent indorser, no person acquiring a title under such prior indorser, and acquainted with all the facts, shall be allowed to recover.

This principle controlled in the decision of the case of Bacon v. Burnham, 37 N. Y. 614, and was adverted to in this case by Grover, J., as one that has been assented to for half a century. Still, it must be understood, that on the face of paper an indorser of this kind cannot be liable to the payee; it requires extrinsic proof to fix a liability to the payee, though on the face of the paper he is liable to subsequent indorsers. In fact, the liability of such indorser to the payee must be based on a contract independent of the apparent relation of the parties as appears on the paper. This contract must be proved by parol, and possess the usual elements of a contract. This is a very important consideration, when we wish to recover on behalf of the payee from an indorser of this kind. In a late case this was held to be essentially necessary to charge the indorser at the suit of the payee. This was the case of Hull v. Marvin, 2 N. Y. Sup. 420. This was a suit by the payee against an indorser of this kind on the folfowing note:

"$325. Fifteen months after date, for value received, we promise to pay to David H. Hull or order,

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(Indorsed) "D. H. HULL, Syracuse, N. Y.

"GEO. L. MARVIN, Buffalo, N. Y.”

The indorsement of Marvin was procured subsequently to the making, he being ignorant of the agreement between the plaintiff and the firm. It was held that as he (Marvin) was not privy to the transaction, and did not pledge himself to the payee, the latter could not recover from him. This rule was well expressed in Meyer v. Hibsher, 47 N. Y. 270, by Folger, J., that the person sought to be charged by the payee as indorser, must be privy to the whole transaction, and know that the apparent relations of the parties were not the actual ones. This latter case was an action by the payee on the following note:

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Here it was shown the parties indorsed for the purpose of giving the makers credit with the payee, and with knowledge that he required such indorsement, and it was held the payee could recover from them as indorsers under the rule of the former cases.

As an instance of the difference of the views of adjacent tribunals, we quote a recent case in Connecticut on a note, about the same time as the previous case, and which in the facts are entirely similar. This is the case of Greathead v. Walton, 40 Conn. 226, and was an action by the payee on the following note: "$2,000.

AMENIA, N. Y., February 24, 1870. "Sixty days after date we promise to pay to the order of Greathead two thousand dollars, at the First National Bank, for value received.


Here, in this case, it was held that the defendant, Caroline F. Walton, who made her indorsement in Connecticut, was a guarantor, and she was sued as such; while in New York she would be an indorser. The same view is generally taken in the New England States. Forsyth v. Day, 46 Me. 176.

If the note be not negotiable, then a different rule must be laid down. If a person so writes his name on the back of a non-negotiable note, the payee is authorized to overwrite a contract of guaranty, or an original promise to pay the note over the name indorsed, because otherwise the indorsement would be without any force or meaning. Thus it was held in the case of Richards v. Warring, 39 Barb. 42. Here, after two persons had signed a promissory note not negotiable, a third person wrote his name across the back and it was thereupon transferred to the payee, who parted with the full consideration, upon the credit of the note, the note having been in fact made to obtain such consideration. Held, that a person so writing his name on the back of the note was not an indorser, but was a joint promisor with the other signers. The same was held in 10 Barb. 402, and in a late case in 1 Keyes, 580. JOHN PROFFATT.



A writing was in the following form: "$17.14.

BRIDGEPORT, January 22, 1863. "Due C. & B. seventeen dollars and fourteen cents, value received. F. L."

Held, not a promissory note in legal meaning. ACTION on a written instrument in the following form: "$17.14. BRIDGEPORT, January 22, 1863. "Due Currrier & Barker seventeen dollars and fourteen cents, value received. "FREDERIC LOCKWOOD."

The plaintiffs claimed that the writing was a promissory note not negotiable, and not barred by the statue of Connecticut until seventeen years from date. The opinion states the remaining facts.

SEYMOUR, C. J. The first question in this case is whether the writing sued upon is a promissory note within the meaning of those words in the statute of limitations. The statute is as follows: "No action shall be brought on any bond or writing obligatory, contract under seal, or promissory note not negotiable, but within seventeen years next after an action shall accrue."

Promissory notes not negotiable are by the statute above recited put upon the footing of specialties in regard to the period of limitation, and for most other purposes such notes have been regarded as specialties in Connecticut. The instrument, however, to which this distinction has been attached is the simple express promise to pay money in the stereotyped form familiar to all. The writing given in evidence in this case is a due-bill and nothing more. Such acknowledgments of debts are common and pass under the name of duebills. They are informal memoranda, sometimes here as in England in the form "I. O. U." They are not the promissory notes which are classed with specialties in the statute of limitations. The law implies indeed a promise to pay from such acknowledgments, but the promise is simply implied and not express. It is well said by Smith, J., in Smith v. Allen, 5 Day, 337: "Where a writing contains nothing more than a bare acknowledgment of a debt, it does not in legal construction import an express promise to pay; but where a writing imports not only the acknowledgment of a debt, but an agreement to pay it, this amounts to an express contract."

In that case the words " on demand were held to import and to be an express promise to pay. That case adopts the correct principle, namely, that to constitute a promissory note there must be an express, as contradistinguished from an implied, promise. The words "on demand" are here wanting. The words "value received," which are in the writing signed by the defendant, cannot be regarded as equivalent to the words "on demand." The case of Smith v. Allen went to the extreme limit in holding the writing there given to be a promissory note, and we do not feel at liberty to go further in that direction than the court then went.

The writing then not being a promissory note, the plaintiff's action is barred by the six years' clause of the statute, unless revived by a new promise to pay.

The offer of the defendant to give a ton of coal for the note was not accepted. It was a mere offer of compromise, and clearly no acknowledgment to take the case out of the statute.

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