BENCH AND BAR.

On the 29th of last Nov. Hon. Wm. F. Cooper assumed the duties of Chancellor for the Nashville District, and upon taking the Bench delivered an address to the Bar from which we extract the following as likely to interest our readers everywhere:

to

As soon as I begin the active discharge of my functions, it will become my duty to decide every litigated case, and every contested question presented, against one of you. I know, from practical experience, how difficult it often is to prevent the feeling of disappointment of the moment from influencing our permanent judgment. However high may be our opinion of the ability and integrity of a Judge, it is apt to be shaken, if, when we have thoroughly convinced ourselves, (as what good advocate does not in almost every case, even when it seemed hopeless at first,) that law and justice are with us, the judge should unfortunately think otherwise; especially if he thinks so, as he sometimes will, very emphatically. I know no way escape entirely this trait of our common nature, but we may soften its effect by being forewarned. Let us look leniently at each other's faults by striving, when a hitch occurs, to put ourselves in each other's positions for the time being. Occasional collisions are inevitable. The lawyer, warm from his view of the wrongs and sufferings of his client, can not but feel some exasperation at the coolness with which the Judge listens to their detail, and the pitiless impartiality which it is his duty to maintain. Let us mentally promise each other to try to guard against any unnecessary heat. If, occasionally, in the zeal for your clients, you should show more ardor than discretion, I shall try to bear in mind that I have been along there myself, and have often, no doubt, tried the temper of the incumbent of the Bench. On the other hand, if, in the impulse of the moment, I should show any of the impatience or petulance which too often accompanies official position, I trust you will reflect that it may be your fate, some time or other, to be placed in the same predicament, and that you will be indulgent.

The surest safeguard to a good understanding between the Bench and Bar, and of thoroughly appreciating each other, is for each to strive to master the law and the facts of the case. Most of the dif

ferences of opinion in this world grow out of a misunderstanding of each other's meaning. There has been a loose and indefinite use of words on a vague and general view of facts. We do not always affix the same meaning to the same words, and we do often use different words in the same sense. To bring the parties together it is only necessary that each should understand the subject of dispute more thoroughly. Forensic discussions are no exception to the general rule. Nothing conduces to shorten them so much as accurate knowledge of the law and the facts. All cases, even the most complicated, can be reduced to a few points; are nearly always thus reduced by the final decision. The more thoroughly we master the case, the fewer, as a general rule, will be the controverted points. Most lawyers are, naturally enough, afraid to concede anything, because they have not sufficiently digested their case to see the result of the concession in all its bearings. There are few of us so gifted as the distinguished counsel, of whom I have heard Judge Emmons speak, who was in the habit of shortening the trial and the argument of causes in which he was engaged, by saying at once, when his adversary undertook to prove a point, that he agreed the fact was so, and when a point of law was made in argument, that he conceded it to be as claimed, until the controversy was narrowed down to the particular fact or principle of law upon which he intended to rest his client's rights. Such men are exceptional. But all of us may, by industry and attention, emulate his example to a certain extent. Let me earnestly urge the members of this Bar, and particularly its younger members, to come to the hearing of their causes well prepared. Do not trust your client's rights to accident, or the Judge alone. There may be a good Bar without a good Bench, but it is well nigh impossible to have a good Judge without the aid of a good Bar. In the multiplicity of questions of law and fact upon which a Chancellor is called to act where there is a crowded docket, it would be impossible for him to decide them correctly without the constant assistance of an intelligent and industrious Bar. Let me impress upon the younger lawyers, for the older ones have long since found it out, that because a man is a Judge, and older than you are, or even an abler lawyer, it does not follow that he can know everything, nor even always keep in his mind what he does know, nor avoid occasionally committing errors, and sometimes errors that a law student of six months standing ought not to commit. It is your duty to know the facts and the law of your case better than he can possibly do. His merit consists in fully appreciating your exposition of your case. If he does this,

If he does this, and you are

and you are right, you win your case. wrong, he is able to satisfy you, perhaps, and, at any rate, the strictly impartial, wherein your error lies. You ought never to come to a hearing, not even of a motion, without previous examination, and, in most instances, a brief of the points of fact and law relied on. And this does not necessitate a lengthy argument. It requires only a brief in the proper sense of the term. Aud, let me add, the better you understand your case, the shorter will be your brief.

The most cheering thought to me in the task which lies before me, is the hope that I may be able, by judicious conduct and encouragement, to contribute to the building up of a Bar worthy of the metropolis of the State, and worthy to wear the mantles of those who have preceded them. The Hon. Montgomery Blair, whose distinguished career is familiar to all of us, in his late professional visit to Nashville paid us the compliment of saying that he had always heard our Bar spoken of as being an able one, and he was kind enough to add that he found it still merited its renown. In a few years, the young men who are listening to me must take the places of those who are now the leaders. They must be the great lawyers of their day and generation. Let them aim to qualify themselves for their high calling. It will give me great pleasure, if they will do their duty, to aid them in their task.

VOL. IL-NO. 1.-13.

BOOK NOTICES.

T. & J. W. Johnson & Co., Law Booksellers and Publishers, No. 535 Chestnut Street, Philadelphia, have presented us a new work entitled The Law of Appellate Proceedings, by THOMAS W. POWELL. It is a neatly printed and well bound book.

We have had no time to thoroughly examine the work, but have read a part, and from our examination have no hesitation in recommending it warmly to the profession. It is no mere digest or confusedly written work; but, from our examination, we believe that the principles of that branch of the law are thoroughly analyzed and clearly stated. We think any one can see, from only a slight examination of the book, that the author understood his subject. In the beginning of his preface the author says: "This book presents to the profession a subject not yet embodied in the form of a separate treatise; and the author was, therefore, in a great measure, obliged to analyze the subject for himself, and gather his materials in an untried path, without a predecessor."

use.

Many may suppose that a work upon such a subject is of no great It is true, that appellate proceedings depend, in a great measure, upon the statutes of the State in which one lives, and the statutes of one State differ, in this particular, greatly from those of other States. But, we predict that no lawyer will read this treatise without finding that he has been benefitted, and that his knowledge upon the subject has been enlarged and made more accurate.

Wigram on Wills, Extrinsic Evidence, and O'Hara on the Construction of Wills.

We take pleasure in highly recommending to the profession the volume containing these two works.

The first is a new edition, by JOHN P. O'HARA, Esq., of the val nable treatise of Sir James Wigram upon the admissibility of extrinsic evidence in the interpretation of wills; and the second,-the production of Mr. O'Hara himself, and the complement of the first,deals with the general subject of the construction of wills.

The admirable method cf Sir James Wigram's book adds greatly

to its excellence, and distinguishes it favorably, in our judgment, from the generality of English elementary treatises upon legal subjects, which, however solid and comprehensive, partake too much of the nature of mere congeries of adjudications, and are, consequently, apt to be very heavy reading. Here the matter has been thoroughly elaborated and the essence extracted. The results of the author's investigations are set forth with the formality and lumiuous precision of geometrical theses, in the shape of seven propositions, each of which is the text of a separate chapter, wherein it is maintained, developed and elucidated. These seven chapters, with a brief prefatory chapter; a supplementary chapter upon Lord Bacon's rule ast to latent and patent ambiguities; a chapter summing up the results of the inquiry; and a short appendix, in which are set forth the illustrative cases of Goblet vs. Beechy, and Attorney General vs. Grote, comprise the work. The former ease arose upon the will of the sculptor Nollekens, and is very interesting and instructive.

The editor has embodied the subsequent English legislation and decisions, and the American decisions, upon the topic of the work. He has discharged his task unambitiously, but with conscientious and laborious fidelity.

We know of no other work capable of supplying the place of Sir James Wigram's. The subject, too, is one of great importance, especially in this country, where wills are so much more seldom drafted by special hands than in England, and hence are so much more frequently vague and inartificial than there. As may readily be supposed, there is often evidence outside of the will itself capable of clearing up, in point of fact, doubts arising from ambiguities upon the face of the instrument; and so it becomes material to ascertain exactly how far, and in what respects, such extrinsic evidence may be resorted to for this purpose. The work before us appears to be a comprehensive compendium of the law down to the present time upon this subject, and its treatment displays the very perfection of form.

The exposition of the law of construction, by Mr. O'Hara, which completes the volume, is also entitled to the same kind of praise as its companion. The field here, however, being more extensive, it was not practicable to distil the results of the survey into a few propositions, which, expanded and illustrated, should exhaust the discussion. But as high a degree of condensation has been attained as was compatible with the full and clear exhibition which is given of the various rules of law, with all their modifications and limitations.