railroad. (5) Amounts sufficient to pay accruing dividends on preferred stock, not exceeding six per cent. per annum thereon, as provided in the act. (6) Amounts sufficient to pay the interest due on the outstanding bonds of the state previously loaned to the company. (Lastly) He shall disburse the surplus to the payment of the principal of said first mortgage bonds until the same shall be fully paid off, or if none of such bonds shall have become due, then to the payment of the principal of the bonds of the state, if any are still outstanding, and the balance shall be paid over to the company. Further examination of those provisions is certainly unnecessary, as it is too plain for argument that they do not afford the slightest support to the views of the plaintiffs. On the contrary they are entirely silent on the subject of taxation, and fully justify the re marks of the state court when they say that the subject of taxation forms no part of the contract contained in the act under consideration. Ins. Co. v. Trust Co., 47 Mo. 155. Nothing is said about taxation, and it does not seem to have entered into the contract between the parties, but was obviously left where the law had placed it before the act was passed, nor was any provision made for the payment of taxes, unless it may be held that the disbursements for that purpose may fairly be included in such as are required to pay the current expenditures in carrying on the ordinary business of the corporation. Railroad v. Maguire, 49 Mo. 490; Pacific R. R. v. Maguire, 51 id. 142. Reference is also made to some other sections of the act as supporting the proposition submitted by the plaintiffs, but it is so obvious that they cannot be so regarded without departing from the established rules of law applicable in such cases, that it is not necessary to pursue the discussion. Like controversy exists between the state and another of the railroads mentioned in the ordinance, in which case it is contended that the ten per cent. charge imposed by that instrument is not a tax within any correct meaning of that word, that it is an appropriation of the property of the company without due process of law, or the taking of the property of the company without just compensation, but no such questions are open for examination in this case, and no such error are assigned in the record. Dissenting, Mr. Chief Justice Waite. Mr. Justice STRONG did not sit. JUDGMENT Affirmed. Negligence Causing Fire-Remote and Proximate Cause-Construction of Steam Engine as Respects Damages Caused by Sparks-Duty of Steamboats as Respects Spark-Arresters-Duty of Guarding Elevators. (3.) That whether the burning of the elevator was the proximate or the remote cause of the burning of the mill and lumber was a question of fact for the jury. (4.) That the jury were therefore to determine whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator, and whether the burning of the elevator was the result of sparks communi cated from the steamer. (5.) That there was nothing in the fact of the steam being emitted through the chimney of the steamboat from which the jury should infer negligence. (6.) That the leaving of the elevator unused, without a watchman and with its spouts open, did not constitute such negligence as would make the defendant responsible to the plaintiff. (7.) That the question whether the defendant was guilty of negligence, in failing to make use of spark-arresters on his steamboat, was a question of fact for the jury. (8.) That the true test of negligence in this and other cases is, what would an ordi naryly prudent man have done under the precise circumstances. It appears from the pleadings and the undisputed evidence in the cause that the plaintiff, on the 3d day of October, 1871, was in the possession of a saw-mill on the bank of the Mississippi river, situate on certain lots in an addition to the town of McGregor, in Iowa, upon which there was a large quantity of lumber. At the same time the defendant was the owner of a large grain-elevator building, also situate on the bank of the river, 528 feet above the mill of the plaintiff. The intervening property was vacant or unoccupied. This elevator was built before the plaintiff's mill, and was constructed of pine, and was from 100 to 120 feet in height. It seems to have been built after the usual model of elevators, and had spouts or openings on the east or river side thereof for the purpose of discharging grain into boats or barges. The lumber on the plaintiff's premises was distant from the elevator 388 feet. At the date above named the defendant was also the owner of a steamboat called the "Jennie Brown," which was employed by it in transferring cars and barges back and forth between the end of its road at North McGregor on the Iowa, and Prairie du Chien on the Wisconsin side of the river. On this 3d day of October, 1871, the elevator caught fire and was entirely consumed, and the fire therefrom extended to and also entirely consumed the plaintiff's lumber and his mill building and machinery. There was at the time an unusually high wind blowing from the elevator in the direction of the plaintiff's lumber and mill. The evidence tended to show that sparks and burning brands were carried directly from the elevator to the lumber and mill, and that the trees on the bluffs, 600 feet distant from the elevator, were scorched and killed by the flames and heat from the elevator. The plaintiff now brings this action against the railroad company to recover the value of the mill, machinery, lumber and ant's alleged negligence, which the plaintiff claims was the cause property thus consumed. The ground of his action is the defendof his loss, and was so directly the cause of it as to involve an actionable liability on the part of the defendant. There are several TIMOTHY KELLOGG v. MILWAUKEE & ST. PAUL RAIL-specific grounds of complaint in the petition against the defend WAY COMPANY. ant, in connection with this fire. 1. It is claimed that the defendant is at fault because it negli United States Circuit Court, District of Iowa, May Term, 1874. gently omitted to provide the Jennie Brown with spark-arresters. Before MILLER and DILLON, JJ. Negligence-Proximate and Remote Cause.-The defendant was the owner of an elevator built on the bank of the Mississippi river, and also of a steamboat used in transferring cars and barges to and from it. The steamboat had no spark-arrester, and the exhausted steam was allowed to escape through its chimney. The plaintiff was the owner of a mill and a lumber yard, the former 528 and the latter 388 feet from the elevator, and the space between these and the elevator was vacant; the elevator being unused, its spouts left open and without a watchman; the steamboat, being in the necessary course of its occupation, moved alongside the elevator; and the weather being very dry and the wind high and blowing in the direction of the plaintiff's mill and lumber, the elevator, by reason of sparks communicated from the chimney of the steamboat (as the evidence tends to show) caught fire, and from it fire was communicated to the defendant's mill and lumber, so that these latter were consumed. Upon these facts it is held. (1.) That the defendant was not liable in any event, unless the fire was communicated to the elevator through the defendant's negligence or the negligence of its servants in the construction and use of the boat. 2. Because the exhausted steam was admitted into the smokestack, thereby intensifying the force of the draught, and that by reason thereof, and by reason of the absence of spark-arresters, the boat emitted or threw off large quantities of sparks and coals. 3. That the spouts or openings in the elevator on the river side were carelessly left open; and 4. That the elevator at the time was unoccupied, and negligently left without a watchman or other person to look out for or prevent fire. The substantial charge in the petition is that in one of her trips the defendant "negligently permitted the steamboat to approach and lie alongside of, or in close proximity to, said grain elevator, and negligently allowed and caused long and strong draughts of escaped or exhausted steam to pass and rush into the smoke-stack (2.) That the defendant would not be liable unless the burning of the elevator of the boat, whereby large quantities of cinders, sparks or coals of was the proximate and not merely the remote cause of the burning of the mill and lum er. fire were forced up through and emitted from the smoke-stack against the elevator and openings in it, in consequence of which, and of the negligence of the defendant in not providing the proper and necessary spark-arresters, and of their negligence in not keeping some person in charge thereof, and of their negligence in not keeping the openings in said elevator closed, the same took fire from said sparks, and from thence the fire extended to and burned the plaintiff's mill and property. The defendant asked the court to instruct the jury that if "they believed from the evidence that the sparks from the Jennie Brown set fire to the elevator through the negligence of the defendant, and the distance from the elevator to the nearest lumber pile was 388 feet, and to the mill 528, then the proximate cause of the burning of the mill and lumber was the burning of the elevator, and the injury to the plaintiff is too remote from the negligence to afford a ground for recovery." This was refused. Beach & Murdock, for the plaintiff; Cary & Upedegraff, for the defendant. Mr. Justice MILLER orally charged the ju y in substance as fol lows: These three questions you are called upon to determine : First. Whether the elevator was burned by sparks from the Jennie Brown? Second. If it was so burned, was it in consequence of the negligence of the officers or men in charge of the Jennie Brown? Thirdly. Whether the burning of the mill and lumber was the natural and probable result of the burning of the elevator? As to the first-whether or not the elevator caught fire from the sparks of the Jennie Brown-you can determine as well as I can, and the decision of that question I leave with you without comment. In considering the other two propositions, I will commence with the last first. Supposing, for the present, that the elevator was burned down through the carelessness of the defendant, was the burning of the mill and lumber so connected with the burning of the elevator that the defendant would be responsible for it? On that point I have been asked by counsel to instruct, as a matter of law, that by reason of the space intervening between the elevator and the mill of plaintiff, the burning of the elevator would not make them responsible. The authorities are in conflict upon that subject—that is, upon what is called remote consequences. Now, in the case before us, it is said that while the burning of the elevator was the direct consequence of the sparks from the Jennie Brown, the burning of the mill and lumber was the remote consequence of the negligence of the defendant. I am not prepared to say this. I do not believe it is the duty of the court to take that question away from the jury, and I leave it with you, as was done at the former trial, to determine whether, under all the circumstances of the case—with the wind blowing; the inflammable character of the elevator; the combustible material of which it was composed; and on the other hand, the distance between the elevator and the mill and lumber, and from all the evidence and circumstances before you-whether the burning of the mill and the lumber by the fire from the elevator was a consequence usually and naturally to be expected; whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator, and whether the burning of the elevator was the result of the sparks from the Jennie Brown. If you find that the officers of the boat were not guilty of negligence or carelessness, then the defendant is not liable to the plaintiff; but if you find the contrary to be true, then it may be responsible for the loss of the mill and the lumber. The main point upon which this case turns, in my judgment, is whether the parties who had charge of that boat were guilty of such negligence within the meaning of the law as would make them liable for causing fire to the mill and lumber of the plaintiff. If you find that the elevator was set on fire by the sparks from the boat (and I will so suppose for the purpose of illustration), then was the conduct of the parties in charge of the boat at the time of the fire characterized by such want of care, or want of skill in her management, as to make the owners of the boat (this railroad company) liable for the burning? In the first place, I observe that the railroad company in this case stands precisely in the same position as if the boat was owned by an individual. There is no additional responsibility attaching because it was a railroad company, nor are they any less responsible because of that fact. Two or three circumstances apart from the transactions of that day have been proved to you as showing, or tending to show, negligence or carelessness on the part of the officers in charge of the boat on the day in question. The first of these to which I call your attention is the fact of the steam of the boat being emitted through the smoke-stack. As Judge DILLON instructed the jury before, so I instruct you now. There is nothing to presume any negligence on the part of the railroad company in that regard. It is one of the usual, if not necessary, means for increasing the locomotive power of the vessel-for increasing the amount of steam. It is almost universal, and, I presume necessary, and no charge of negligence can be made against the owners of the boat because they permitted the steam to be emitted through the smoke-stack. Another ground of carelessness alleged against the defendant' not connected with the boat, is that the elevator (which was also their property) was not being used, and that it was a season of the year when it was uncommonly dry; that it was made of inflammable material, was left without a watchman, and that it was left with certain openings-places where the grain was taken in-called spouts; that these spouts for the discharge of grain were left open. Supposing this to be so, there is no negligence in this respect upon which the defendants are responsible to the plaintiff. Because they were not using the elevator at the time is no reason why they should be called upon to keep a watchman, nor is the fact that these spouts are left open a ground of negligence. A more interesting question on the subject of negligence grows out of the question discussed here in regard to the use of the spark-arrester, which is an apparatus on the chimney to arrest the sparks. On that subject I hesitated a good while whether I should have to say to you that there was no negligence in that regard; that is to say, that the owners of the boat were not bound to use these spark-extinguishers or arresters. But upon further reflection I do not think upon the evidence I am authorized to declare, as a matter of law, that that is so; but I must leave you to say from the testimony whether in this respect the owners of the boat were guilty of negligence. Upon this subject it is proper for me to remark that the true test of care and diligence on one side and of negligence, which is the absence of diligence, on the other-a test which juries should apply,and which the law appliesis, what would an ordinarily prudent man have done under the precise circumstances which are here presented to you? The best test you can bring to bear is, what would an ordinarily prudent and careful man, who owned a boat like this, or any other boat like it, have done in regard to employing the use of a spark-arrester or sparkextinguisher? If prudent and careful men do not think it necessary, and have found it impracticable to use them, the defendants are not bound to use them. That is one test. Another consideration upon this subject is that in this day and time, with the elements of transportation used in commercial transactions and with the great bulk of material transported to and from this country, from the East to the West and from the West to the East, the use of steam power has become not only necessary but indispensable to the interests of the whole country. Steam is now used as the old onestoga wagon, with six horses, used to be. The expense of using steam power is taxed upon the products of the country transported. Motive power, bringing it down to the last principle, is the generation of steam, which is the main item of expense in transportation. Therefore, you are to consider how far the interests of the public require those using this great power to be restricted, and how far the good of the people require those mak ages at twelve thousand five hundred and two dollars and fifty JUDGMENT UPON THE VERDICT. Power of a Federal Court to Disbar an Attorney for Contempt-Disbarring without a HearingThe Remedy. EX-PARTE JAMES S. ROBINSON, PETITIONER. Supreme Court of the United States, No. 14 (original). October Term, 1873. ing use of it to adopt means of safety and protection. If steamboats must adopt various apparatus, thereby increasing their expenses, they must charge them upon the products of the country transported by them. On the other hand, if they can dispense with such things without too great danger, it is to the interest of the people for them to do it. But they should adopt such means as may be useful for the protection of property and persons. Under all the circumstances, you are to consider what has been found to be generally used by prudent and careful men, in the management of vessels and steam power; the general usage; the experiments made, and the opinions of those who have used the sparkextinguisher; and you are to say, under all the circumstances, whether there was any duty imposed upon the defendants to have a spark-extinguisher on their vessel at the time this fire occurred. Now, gentlemen, you come to the main question, whether, in point of fact, in the management of that vessel on that day, and under the circumstances, there was any negligence on the part of the officers having charge of the boat? Upon that subject I do not know of any test better than that I have already given you. 2., The Act of Congress of March 2d, 1831, entitled An act declaraIf you find the defendant was using such care as ordinarily pru-tory of the law concerning contempts of court," limits the power of the circuit and district courts of the United States to three classes of cases: Ist, where there has been dent men would have used under like circumstances, then there would be no negligence on their part. You are to consider all the evidence upon the subject, and also the entire situation; the vio lence of the wind; the inflammable material of the elevator; the sistance by any officer, party, juror, witness or other person, to any lawful writ, pro nearness of the vessel to the elevator. You are to remember that these men had a right to go there; that it was one of their landing places; that they could not go directly up to their other landing place because another vessel was there. You are then to consider whether, in their attempt to get away from there, they increased the fire in their engines so that the sparks were unusually dangerous; whether it was prudent in them to use as much power and force as they did, or whether they used any force; whether the steam was got up in such a way that prudent men would have said: "We will stop this rather than go on; the danger is too great.' You can consider that, or you can consider, on the other hand, whether they were doing only what was necessary to get off their barge. All this is for your determination, and there is no other rule but this simple rule, that while they had a right to use their vessel to get the barge away, to get up to the proper landing place, or up to the island, yet they were bound to have a due regard to the risk, to the danger that they might possibly set fire to the elevator and burn it, and not only burn the elevator but other men's property. If the elevator was burned on account of their carelessness and negligence, then they are responsible for the burning of this man's property as well as of the elevator, if you believe they were so connected as I have already explained. If they used due diligence and due care, then they are not responsible, although the sparks from the boat may have set fire to the elevator, and from that fire the mill and lumber were burned. Steam is a dangerous element; fire is a dangerous element; but people must use steam, and although defendants had a right to use this vessel there, they were required to exercise due care and prudence, such as an ordinarily prudent and sensible man would have exercised. Was there anything to put them upon their guard? Did they exercise due care and prudence, such as a careful and prudent man would have done? This is the gist of your enquiry. The jury found the following verdict: 1st. We, the jury, find that the elevator was burned from sparks emitted from the steamer Jennie Brown. 2d. That such burning was caused by not using ordinary care and prudence in landing at the elevator, under circumstances existing at that particular time. 1. Inherent Power to Punish for Contempts.-The power to punish for con. The moment the courts tempts is inherent in all courts; its existence is essential to the preservation of order in misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; 2d, where there has been misbehavior of any officer of the courts in his official transactions; and 3d, where there has been disobedience or recess, order, rule, decree, or command of the courts. 3.---. The 17th Section of the Judiciary Act of 1789, in prescribing fiae or imprisonment as the punisment which may be inflicted by the courts of the United States for contempts, operates as a limitation upon the manner in which their power in this respect may be exercised, and is a negation of all other modes of punishment. 4. Power to Disbar Attorney.-The power to disbar an attorney is possessed by all courts which have authority to admit attorneys to practice. But the power can only be exercised where there has been such conduct on the part of the party complained of as shows him to be unfit to be a member of the profession, and before judgment disbarring him can be rendered he should have notice of the grounds of complaint against him and ample opportunity of explanation and defence. 5.-. The Remedy.-Mandamus is the appropriate remedy to restore an attorney disbarred where the court below has exceeded its jurisdiction in the matter. Petitition for mandamus to the judge of the District Court of the United States for the Western District of Arkansas. Mr. Justice FIELD delivered the opinion of the court. On the 16th day of July, 1873, the grand jury of the western district of Arkansas reported to the district court of the United States for the district, then in session at Fort Smith, that they had made every effort in their power to have a witness by the name of Stephenson summoned to appear before them; that for this purpose a subpoena for the witness had been placed the day previous in the hands of a deputy marshal by the name of Sheldon, for service; that the deputy marshal, on the same day, went to the town of Van Buren, as he said, to make the service; that after he had left the witness was seen on the streets at Fort Smith, and the subpoena was, on that morning, returned unserved; that they had learned from evidence before them that the witness knew that a subpoena was issued for him, and had for that reason come to Fort Smith, " but," continues the report, "after seeing the attorney, J. S. Robinson, in the Nash case, very suddenly absented himself," The jury, therefore, prayed the court to issue an order that the witness, Stephenson, he brought before them. Upon this report, without other complaint, the court ordered that Sheldon, the deputy marshal, Stephenson, the witness, and Robinson, the attorney, "show cause why they should not be punished as for a contempt." Two days afterwards, on the 18th of July, the petitioner filed the response to the order of the deputy marshal. The judge than reminded the petitioner that there was also a rule against him, to which he replied; "Yes, sir; I know it and I am here to respond; I don't know what there is for me to answer. It," referring to the 3d. That the burning of the mill and lumber was the unavoida- report of the grand jury," says I saw Silas R. Stephenson. I do ble consequence of burning of said elevator. We, the jury, therefore find for the plaintiff, and assess the dam not know what the grand jury has to do with my private business in my law office," and was proceeding to reflect upon the action of the grand jury, when the judge said, "You must answer in writing, Mr. Robinson;" to which the petitioner replied, "The rule itself does not require me to respond in writing." Upon this the judge said, turning to the clerk, "It should have done so; you will amend the order if it does, Mr. Clerk." The petitioner declined to answer the rule until it was amended. The judge then said, Well, I will make the order for you to respond in writing now. Mr. Clerk, you will enter an order requiring Mr. Robinson to answer the rule in writing." Upon which the petitioner said, "I shall answer nothing;" and thereupon immediately, without time for another word, the judge ordered the clerk to strike the petitioner's name from the roll of attorneys, and the marshal to remove him from the bar. The petitioner now asks from this court for a mandamus upon the judge to vacate the order disbarring him, and to restore him to the roll of attorneys and counsellors. In his petition, which is verified, he refers to the proceedings of the court below, the record of which he produces, and states that in the interview which the grand jury mentioned there was no allusion made to the Nash case or to the grand jury, and that the consultation related to a totally different matter. The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power. But the power has been limited and defined by the act of congress of March 2d, 1831, 4 Stat. at Large, 487. The act, in terms, applies to all courts; whether it can be held to limit the authority of the supreme court, which derives its existence and powers from the constitution, may, per This account of the language used by the petitioner and the judge is taken from the latter's response to the alternative writ issued by this court. The judge states at the same time that the tone and manner of the petitioner were angry, disrespectful,and defiant; and that, regarding the words "I shall answer nothing," and the tone in which they were uttered, as in themselves grossly and intentionally disrespectful, as an expression of an intention to diso-haps, be a matter of doubt. But that it applies to the circuit and bey and treat with contempt an order of the court, and believing that the petitioner intended to intimidate him in the discharge of his duties, he felt it due to himself and his office to inflict summary and severe punishment upon the petitioner. The order of the court disbarring the petition, made at the time and entered in the minutes of the court kept by the clerk, was declared by the judge to be erroneous in form, and afterwards, on the 28th of July, a more formal order was entered nunc pro tunc. This latter order recites the report of the grand jury mentioned above, the rule to show cause issued thereon why the parties should not be punished as for a contempt, amended from the original order by the insertion of the words "forthwith in writing and under oath;" and that the petitioner, having notice at the time that he was required to respond to the rule, "in a grossly contemptuous, contumacious, and defiant manner," in open court, refused to respond in writing; and then proceeds to decree that, for his con tempt committed in open court, as well as for his contempt committed in refusing to respond to the rule, the license of the petitioner as an attorney and counsellor at law and solicitor in chancery be vacated; that the petitioner be disbarred from fu' ther practice in the court, and that his name be stricken from the roll of attorneys, counsellors, and solicitors of the court. Before this amended order was entered, the petitioner, through 'counsel, filed a motion to vacate the judgment disbarring him upon various grounds, which were specified. After its entry a motion to set aside the order as amended was made, in which the petitioner adopted the grounds of the original motion and added others. The substance of the more important of these was, that no charges had been previously preferred in writing and filed against him; that he had had no notice of any charges; that the report of the grand jury contained no charge which he could be required to an swer; that no rule had been served upon him to show cause why he should not be disbarred; that he had had no trial previous thereto, and had been denied the right of being heard in his defence, and that the court had no jurisdiction under the circumstances to render the judgment disbarring him. The petitioner also set up, among the grounds upon which he would rely, that the sentence he uttered, "I shall answer nothing," was incomplete, and that he was prevented from finishing it by the action of the judge in interrupting him with the judgment disbarring him; that the sentence completed would have been, "I shall answer nothing until the order to answer the rule in writing shall be served upon me." The petitioner also disclaimed any intention to commit a contempt of the court, or to act in defiance of its orders or authority at the time, and averred that he was not conscious of the conduct attributed to him towards the court. This statement was verified by his oath; but the motion was denied. district courts there can be no question. These courts were created by act of congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them, the law specifying the cases in which summary punishment for contempts may be inflicted. It limits the power of these courts in this respect to three classes of cases: first, where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; second, where there has been misbehavior of any officer of the courts in his official transactions; and third, where there has been disobedience or resistance by any officer, party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the courts. As thus seen, the power of these courts in the punishment of contempts can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments and processes. If we now test the report of the grand jury by this statute, we find nothing in it which justified any proceeding whatever as for a contempt on the part of the court below against Robinson. No act of his is mentioned which could constitute within the statute a contempt either of the court or of its judge. The allegation that the witness Stephenson, after seeing Robinson, had suddenly absented himself, amounted to nothing more than an insinuation that possibly he may have been advised to that course by Robinson. There was no averment of any fact which the court could notice or the attorney was bound to explain. Whatever contempt was committed by the petitioner consisted in the tone and manner in which his language to the court was uttered. On this hearing we are bound to take the statements in that respect of the judge embodied in his order as true, for the question before us is not whether the court erred, but whether it had any jurisdiction to disbar the petitioner for the alleged con tempt. The law happily prescribes the punishment which the court can impose for contempts. The 17th section of the judiciary act of 1789 declares that the courts shall have power to punish contempts of their authority in any cause or hearing before them, by fine or imprisonment, at their discretion. The enactment is a limitation upon the manner in which the power shall be exercised, and must be held to be a negation of all other modes of punishment. The judgment of the court disbarring the petitioner, treated as a punishment for a contempt, was, therefore, unauthorized and void. The power to disbar an attorney proceeds upon very different grounds. This power is possessed by all courts which have authority to admit attorneys to practice. But the power can only be exercised where there has been such conduct on the part of the Mr. Shirley, the industrious and obliging New Hampshire reporter, advance sheets containing the head-notes of the great church case, which want of space obliges us to withhold until next week. that Judge EMMONS, of the oth federal circuit, possessed more patience in agency, and the vital question is, what did they agree to do? We supposed exhausting important questions than any judge in the country; but since the advent of Judge DOE, we think he may fairly be said to be outdone. Perhaps it would be different if the immense business pressing upon the former allowed him equal leisure. parties complained of as shows them to be unfit to be members of the profession. Parties are admitted to the profession only upon satisfactory evidence that they possess fair private character and sufficient legal learning to conduct causes in court for suitors. The order of admission is the judgment of the court that they pos---APROPOS of the way the judges of the Supreme Court of New Hamppartnership case," sess the requisite qualifications both in character and learning, shire write their opinions, we learn that in the great They become by such admission officers of the court, and, as said which will appear in volume 54 of the New Hampshire Reports, the opinin ex parte Garland (4 Wallace, 378.), "they hold their office dur-ion of Judge DOE alone was 284 pages in length; but that the learned ing good behavior, and can only be deprived of it for misconduct judge, feeling that it is too long, is cutting it down. The pith of it is that as between partners themselves, sharing the profit and loss is no test of ascertained and declared by the judgment of the court after opportunity to be heard has been afforded." Before a judgment disbar-partnership; that as between themselves the partnership is merely a mutual ring an attorney is rendered he should have notice of the grounds of complaint against him and ample opportunity of explanation and defence. This is a rule of natural justice, and is as applicable to proceedings taken to deprive an attorney of his right to practice his profession, as it is to proceedings taken to reach his property. And such has been the general, if not the uniform, practice of the courts of this country and of England. There may be cases, un- --WE learn with pleasure that Dr. Hammond, of the University of Iowa, doubtedly, of such gross and outrageous conduct in open court on is writing a work on the relation between the civil and the common law. the part of the attorney as to justify very summary proceedings We feel confident that no scholar in the United States is better fitted for the for his suspension or removal from office; but even then he should performance of such a task. The doctor has been "living wisdom with be heard before he is condemned. (Ex parte Heyfron, 7 How. Miss each studious year," until he has treasured up such a store-house of learnRep. 127; People v. Turner, 1 Cal., 148; Fletcher v. Danger-ing on this interesting subject that his book will be a rich treat to the scholar field, 20 id. 230; Beene v. State, 22 Ark., 157; Ex parte Bradley, 7 Wallace, 364; Bradley v. Fisher, 13 Id.. 354. The principle that there must be citation before hearing, and hearing or opportunity of being heard before judgment, is essential to the security of all private rights. Without its observance no one would be safe from oppression wherever power may be lodged. That mandamus is the appropriate remedy in a case like this to restore an attorney disbarred, where the court below has exceeded its jurisdiction in the matter, was descided in ex parte Bradley, re. ported in the 7th of Wallace. It would serve no useful purposes to repeat the reasons by which this conclusion was reached, as they are fully and clearly stated in that case, and are entirely satisfactory. A peremptory mandamus must issue, requi ring the judge of the court below to vacate the order disbarring the petitioner, and to restore him to his office; and it is so ordered. Mr. Justice MILLER dissented. MANDAMUS AWARDED. NOTE. The federal statute of March 2, 1831, relating to contempts, was substantially re-enacted in Tennessee, and will be found, together with a long exposition by the supreme court of that state, in Thompson & Steger's Code vol. 2, 4601. Legal News and Notes. -THE following statement is vouched for by a trustworthy correspondent: One of the circuit judges of Florida, while sojourning at a certain town in his circuit, became so inebriated that the authorities locked him up in the calaboose. Mindful of the high dignity of his official position, and with intent to support the same in a becoming manner, the learned judge issued a writ of habeas corpus, returnable before himself, directing the sheriff to take and produce his body, etc. The sheriff failed to execute the process, and the mayor having voluntarily released the prisoner, the judge imposed a fine upon the sheriff for failing to execute the writ. the country. and lawyer when it appears. We hope the doctor will not think us guilty of an attempt to flatter, if we pronounce him one of the civilist lawyers in He has diligently culled and gathered together one of the finest collections of works on the civil law to be found in the Union; and these he will no doubt diligently "press into service" in the preparation of his forthcoming book. -THE following interesting question has come before the house of lords: Whether, under the statute 20 and 21 Victoria, ch. 85, proceedings for the dissolution of a marriage can be instituted or proceeded with on behalf of or against a husband or wife who, before the proceedings were instituted, had become incurably lunatic?" The six law judges who sat as assessors to the lords were agreed that such a proceeding coul be instituted; because, until inquiry and the verdict of a jury, the fact of insanity could not be judicially known; as to whether it could be continued, they were divided, four (one of whom has since resigned) being of opinion that it could, andthe remaining two taking the contrary view, and holding that while the insanity continued it operated a perpetual bar and stay of proceedings. The judgment of the lords will probably, though not necessarily, conform to the views of the majority of the judges. -JUDGE WAGNER, of the Supreme Court of Missouri, is the fortunate possessor of a very remarkable memory. He never commences writing an opinion until he has entirely organized in his mind what he is going to write; and then the sentences crowd upon him in their appropriate order as rapidly as he can commit them to paper. He has been on the supreme bench of Missouri for ten years, and has never rewritten an opinion. So accurate are his mental operations that he seldom makes an interlineation, and those which he does make are generally slight verbal changes. Judge WAGNER'S mental characteristics afford a strong illustration of the fact that what is usually called breadth of intellect or comprehensiveness of thought consists simply in two things-first, ability to acquire a clear and well-defined mental image of any proposition, and secondly, the force of memory which enables one to grasp and hold in the mind's eye, at one and the same time, the united image of a number of distinct but connected and dependent propositions. This clearness of mental image and grasp of memory, favored by an abundant courage and an active temperament, have given to Judge WAGNER a style of judicial argument which has always reminded us ---WHILE on this subject we may state that our valued Boston contribu-strongly of that of Lord MANSFIELD. Right or wrong (and he is genertor, Mr. Sheldon, has just sent us the very interesting New Hampshire ally right), we never have any difficulty in seeing a thing clearly as he sees case of Gordon v. The Manchester and Lawrence Railroad. As the ques-it. The boundaries of every question are distinctly drawn; the outlines of tion is one of interest, involving the liability of railroad companies for the image are clearly cut The subject is not picked into fragments by failing to run trains according to their published time-table, Mr. Sheldon attenuated doubts; and although he is no doubt sometimes wrong, as every intended to make a somewhat exhaustive note to it; but he was agreeably man and every judge must sometimes be, yet his opinions possess this disappointed in finding that the court (SMITH, J.) had so nearly exhausted high merit-that they never can be twisted into the support of different docthe important cases on the question, as to leave him little to add. We may trines or shades of doctrine. Whenever Judge WAGNER writes an opinalso state in this connection that we have received, through the courtesy of ion it means one thing, and that is clearly and unmistakably stated. |