rule in many other cases in other States which might be cited. memory as to the facts thereby recorded, even when the memory of the witness is previously blank on the subject. It has been held in one case that a barrister who has forgotten all about the evidence given in a trial in which he was engaged can look at his notes of the trial and then say, The cases relied upon by the appellant, we think, are not in point in the determination of the present controversy, for the reason that the language of the judgment in the present case is different from the provisions which were the subject of deter-As these notes are on my brief and were made mination in those cases, but are clearly within the authorities which we have cited, construing the language of this judgment. We think, however, that it was not the intention of the court to decree any liability beyond the lifetime of the defendant, and that such intention is clearly gathered from the provisions of the present judgment. It first awards alimony during the lifetime of the plaintiff. It then makes provision for the protection of the plaintiff upon the death of the defendant. He was required to pay the premiums upon the insurance policies issued upon his life, which were payable to the plaintiff, and which only became due and payable upon his death. Thus, by the very terms of the judgment, the court contemplated and made a provision which should inure to the benefit of the plaintiff upon the decease of the defendant; and of this provision the plaintiff has received the benefits, and is now in the enjoyment of an estate nearly three times as large as that which she seeks to impound for her further protection. As the language used did not charge liability upon the estate of the deceased for the payment of alimony, and as the terms of the judgment made provision for a substantial sum after the death of the defendant, we think it clear that the construction to be placed upon the terms of the judgment was that the payment of alimony should be made during the lifetime of the defendant, and that the sum secured by the policies should represent the extent of the demand which the plaintiff might have and enjoy by reason of the marital obligation which the defendant had incurred; so that in no view of this case do we think the plaintiff entitled to succeed. AT REFRESHING THE MEMORY OF A T the Durham Assizes, in Regina v. Laidler. before Mr. Justice Grantham, an interesting point was raised on the law of evidence, on which the learned judge gave the following reserved judgment at Leeds: "With reference to the question raised before me at Durham as to the admissibility of evidence by a solicitor who was allowed to look at his own account of his interviews with the prisoner dictated by him to a shorthand writer. and by him written in longhand shortly after the interview took place, I have no doubt that I rightly admitted the evidence, and I must decline to state a case. The determining point in all these cases is whether or not the writing looked at by the witness can be relied on accurately to refresh his by me, I say that such and such evidence was given or was not given (as the case may be), although I have no recollection of the case.' (Regina v. Guinea [1841], Ir. Circ. Rep. 167.) Again, a shorthand writer who had duly taken down in shorthand the material parts of an address and could only swear to the substantial accuracy of the remainder was allowed to refer to the whole of his report of the proceedings before giving his evidence. Again, when original notes cannot be found, the witness may look at a copy of them if he can swear positively from his own recollection after looking at the copy that it is correct. The use of a shorthand writer by a solicitor is now so much a part of the daily work of his office that if the reading of the account of his interviews with his clients dictated by him and transcribed at once in longhand by the clerk, but read over by the solicitor some time after the occurrence, enables him to say positively such and such events did occur, no objection can be taken to his so refreshing his memory, and in this case the solicitor had looked at this record of the interview soon after he had held an interview with the client. The shorthand clerk is his alter ego, and almost part of himself. In all these cases it is the peculiar circumstances of each case that must be looked to to guide us in determining the question. It is not like the question of the admissibility of evidence; the writer or writings themselves are often not admissible as evidence at all. In this case the evidence of the solicitor, apart from the notes, is clearly admissible. He had looked at these shorthand notes soon after they were made, and he had looked at them again when before the magistrates, and as his evidence before me could not have been excluded because he had on these occasions referred to his notes - if he had wished to avoid all question he could have looked at them the moment before he got into the witness-box. And if, as was the fact on those occasions, he could testify to the accuracy of the statements therein made, it would be the height of folly to compel him to give less accurate evidence than he could otherwise give if permitted to refresh his recollection in the way mentioned. For these reasons I decline to state a case." Law Journal (London). The Supreme Court, during the January term. 1899, that has just closed, decided 533 cases and passed on 283 motions during the term. This is a slight increase over the business transacted at the preceding term. LUCIEN BROCK PROCTOR. A CHARACTER SKETCH OF THE EMINENT HISTORIAN AND LEGAL BIOGRAPHER. BY CHARLES J. HAILES. FOR In NOR half a generation there has resided in the Capital City of the Empire State a lawyer, scholar and historian of whom it can be said he has made the world the better for his having lived in it. During all that time he has been incessantly active. Mentally, at least, he has never seemed to know the meaning of the word fatigue. Production after production, many of them brilliant, and all of them interesting, has come from his pen. He has delved deep into political history, pored over neglected archives, and thrown new light upon many obscure or, to the present generation, wholly unknown events and incidents in the history of State and nation. The friend and associate of eminent lawyers, statesmen and historians, he has had unexcelled opportunities, and has made the most of them. Though his severe, intellectual face has become familiar to many Albanians, he has had comparatively few intimates here. tastes democratic, in bearing gentleman and courteous, in speech rugged, and in action vigorous, a firm friend and an open, honorable opponent, with well-defined convictions upon all leading questions and never lacking the courage to express them, he has sought always to get right and has never spared any effort to be so. The story of his life the writer, who has been privileged to enjoy a somewhat intimate acquaintance, has sought to set down in plain narrative form, without exaggeration or adulation. The assertion sometimes made of him that he has long lived in the past is only partially true; while delving deep into history, always searching for the precious kernel of truth. and sparing no effort to fortify himself with irrefragible proofs, no man takes a more lively interest in contemporaneous events and movements than he does. His familiarity with forgotten facts has not infrequently stood him in good stead, and many a well-known scholar has tested the quality of his literary lance and felt the keenness of its point. First of all a lawyer, and regarding his mistress always with a deep and unquenchable affection, he worshipped for many years at her shrine, served her with a singular devotion and ever jealously maintained her highest and best traditions. This portion of his career - to most of those who only know him slightly a sealed book — is glanced at later on. It is not only an honorable record of trial and achievement, of singleness of purpose and earnestness of effort, but it throws an interesting side-light upon the reason for the bent of his mind, which always has been toward the law, the lawyers and legal literature. In legal biography he has long stood facile princeps. To have reached such an eminence in one of the most difficult fields of literary effort practically would have been impossible had he not himself endured the trials and disappointments, and enjoyed the exhilarations and triumphs, of actual participation in the administration of the law, civil and criminal. By nature, training and habit calculated to follow the biblical injunction to do whatever the hands find to do with all might and earnestness, he spared neither himself nor his opponents. And when finally overwrought mind and body rebelled, and he was reluctantly compelled to relinquish forever the active practice of the profession he loved so well, he turned to other pursuits. Thus what the legal profession lost, legal literature gained. Lucien Brock Proctor was born at Hanover, N. H., the well-known seat of Dartmouth College, March 6, 1830. Those who are fond of tracing out the lines of genealogy cannot fail to observe that he comes of excellent stock, which was essentially New England. His paternal grandfather and great-grandfather both fought at Saratoga; the latter was wounded in battle and died on his way home. His father. Jonathan Proctor, traced his ancestry back to England. From that famous little isle came two brothers. Jonathan and James Proctor. The former settled at Salem, Mass., where he resided during the ever-memorable Cotton Mather witchcraft episode. Having married in Boston, he brought his wife, a most beautiful woman, to Salem to reside, but their lives were destined to be blighted and their happiness wrecked by the terrible fanaticism of that period in the history of New England, to which one can not turn, even at this late day, without an involuntary shudder. The beauty and accomplishments of Jonathan's young wife did not serve to protect her from the fanatics, for she was charged with witchcraft, tried, convicted and sentenced to be executed. Her devoted and intrepid husband, having made a bitter fight against the execution of the sentence, was charged with misprision of witchcraft, tried, convicted and hanged. The same fate would have been the portion of his wife but that she was found to be with child, and to this circumstance she owed her life. In due course she was delivered of a son, who was one of Mr. Proctor's original ancestors. His mother, Ruth Carter, a native of Concord, N. H., was a person of superior ability and of fine education, and, together with the Eastmans, on the maternal side, the Carters still constitute a considerable portion of the population of this historic New England town. One of her brothers was Nathaniel H. Carter, well known as a scholar of high attainments. Himself a graduate of Dartmouth College, he, soon after his graduation, accepted the professorship of languages in his alma mater, in which capacity he served for a period of four years. During the pendency of troubles with the college, he relinquished his chair, and on the invitation of De Witt Clinton went to New York and took up the study of the law, which he pursued with assiduity until admitted to the bar. His taste for letters, however, proved controlling, and in accordance with the advice of some of his best friends, and in conformity with his own desires, he abandoned the law for journalism, soon becoming the editor of the New York Standard and Statesman, which he conducted for some time with distinguished ability. Mr. Carter always enjoyed the personal friendship of De Witt Clinton. He was the friend and associate of that bright galaxy of American poets and authors which included, among others, Irving, Bryant, Morris, Paulding, Halleck and Willis. Mr. Carter died at the age of 42, at Marseilles, France. During the period of his residence in Europe, where he found time to gratify his literary tastes, he wrote a series of brilliant letters to American periodicals, which not only attracted much atten tion at the time, but are still read with interest and pleasure. Perhaps Mr. Carter's best known poem, which has been pronounced by competent judges a remarkable production, is his "Burial at Sea." Another brother, Abiel Carter, also educated at Dartmouth, became a doctor of divinity, and took orders in the Protestant Episcopal Church. Settling in New York, he became assistant rector of Trinity Church, and while there married Miss Anna M. Beach, the niece of Mayor Lawrence. A few years later he accepted a call to St. Thomas' Church, Savannah, Ga. He had not been a resident of the south long before the yellow fever epidemic swept over that portion of the country, carrying death into thousands of happy homes. | Both he and his wife were stricken with the saffron scourge while ministering to the suffering people. Their pathetic deaths, occurring within two hours of each other, are still remembered and mourned. A handsome monument, suitably inscribed, marks their last resting place in the sunny south. Another brother, Dr. Moses Carter, was a famous physician well known throughout New England. The father of the subject of this sketch settled at Hanover, N. H., where he founded, and for years successfully conducted, a large cutlery establishment. When Lucien was four years old the family removed to Auburn, where they continued to reside until he had reached the age of eighteen. From his earliest boyhood he was passionately fond of books. Though by no means a recluse, books were his best and favorite companions; he read eagerly, omnivorously, and, what is still better, understandingly. Long before he had reached his majority, Lucien had resolved upon being a lawyer. After attending the district school, he became a student in the Auburn Academy, still a very respectable and well-known institution of learning. His early student days were distinguished by rare industry and severe application. He made good use of his excellent opportunities. and always was popular among his fellows. From Auburn, after the usual course, young Proctor went to the academy at Oxford. Chenango county. then one of the most famous private preparatory schools in the country, where many young men who afterward became distinguished in civil and military life were fitted for college. Among these. Horatio Seymour, afterward governor of the State of New York; Gen. Abner Doubleday and Gen. Edgar Morgan, the famous Confederate general, may be mentioned. One incident of young Proctor's school days at Oxford is worthy of note. Lively battles between the academy and the town boys, armed with clubs, sticks, stones and other more or less dangerous weapons of offense and defense, were quite common in those days, and in these stirring events young Proctor took his full share with the other manly and ambitious boys of the institution. On the occasion referred to, which came very near resulting in fatal injury to him, the town boys had mustered into service a small cannon, not intending, of course, to kill anybody, but for the purpose of terrifying with the sound of its discharges, and having themselves the exhilaration of handling real weapons, though using only blank cartridges. In the excitement of the battle, this cannon in some way became loaded with large-sized gravel, and during the progress of the skirmish young Proctor was unfortunate enough to be struck in the calf of the leg by several of these ugly missiles. This sanguinary event, of course, put an end to the battle for that day, and the young soldier was carried off the field with a gaping wound, which mental philosophy, a work which ever since has been a favorite of his, besides making himself thoroughly familiar with other classical literature. After his complete recovery he entered the senior class at Hamilton College, but by reason of the partial failure of his eyesight was unable to graduate with his class. Later he received his degree from Hamilton. William H. Seward was one of the ablest lawyers of western New York. He was a firm friend of Mr. Proctor's father and family. During Lucien's boyhood he was accustomed to go to the court house and witness the trials that took place there in which Mr. Seward was the chief contestant. The boy formed a great admiration for this great lawyer and afterward illustrious statesman. As he grew older he used to spend many of his leisure hours in Seward's office, and after graduation he became a regular student there. Mr. Proctor was a rapid penman before he became a student of the law, and often transcribed in a big round hand the manuscript of Mr. Seward, which, like that of Horace Greeley, was about as legible to the uninitiated as it would have been if written in Chinese. During this time Proctor continued to take peculiar delight in frequenting the court-room at Auburn and listening to the arguments and cross-examinations in the celebrated cases there tried, some of them by the ablest lawyers in central and western New York. These arguments not only left a deep impress upon his youthful mind, but served to confirm in him the determination to become a member of the legal profession. At that time entrance into the profession was not as easy as it is to-day. Seven years was the shortest probationary time. There were by no means the same opportunities and advantages for the acquiring of an education in the law as now exist; as for law schools, they were practically unknown; but on the other hand, lawyers took more fatherly interest in their students, and to a large extent watched their course and directed their study. the surgeons declared so serious that amputation studies, he dipped deep into Dugald Stewart's would be absolutely necessary. To this, however, the young hero absolutely refused to consent, knowing that it would mean his limping through life. He was told that failure to perform the amputation would mean blood poisoning and probably death, but he stolidly persisted in his refusal. | The physicians naturally resented his obstinacy, and matters looked very threatening, when, one morning, an elderly woman of respectable appearance called on the sufferer and asked to see the wounded leg, saying she knew how to unbandage and rebandage it. After considerable hesitation she was permitted to do so. Having given the wound a careful examination, she said: "Poor boy, you are in a dangerous position, but your leg ought to be saved and can be saved." "Who can save it, and how can it be saved?" asked the young patient. "I can save it, without doubt," answered the caller, "but as I would not be allowed to undertake the task it would be of no use for me to explain how I can do it." There was something in the manner of the woman that attracted the interest of young Proctor, something that gave him confidence in what she said. 'Will you undertake to cure my leg?" he asked, earnestly. | The reply, Yankee fashion, was another query: What will the doctors and your other friends say if I make the attempt? I don't care what they say," was Proctor's reply: "it is my leg, not theirs, and I am going to entrust you with the care of it. You may begin at once." With the promise to undertake the case and begin treatment the same day, the woman withdrew. In the evening she returned, accompanied by a young man carrying a large jug full of some liquid, and a basket of large, fresh, thick leaves. The woman at once began her task, freely washing the wound with the liquor from the jug, then binding the leaves on it. This she continued until, within a few days, the leg showed evident improvement. She persevered with the treatment, and finally the limb was fully healed. It is an interesting fact that her nostrum. consisting of the leaves and liquid, was from that now famous shrub known as witch hazel, called in those days witch hoppel, the medicinal qualities of which were at that time imperfectly understood. It may also be added that at the time of this incident "quackery," so called, was much more common than in these more enlightened days. The net result of this accident and its treatment was that Proctor had the satisfaction of pulling through without the loss of anything more serious than much time and some blood. During the long and tedious period of his convalescence, extending over fully twelve months, the young patient was not idle. He kept on with his Latin and Greek. under the teutelage of the Rev. Naham Gould. During this time of enforced physical idleness young Proctor found opportunity to gratify his taste for literature, and, in addition to his regular Among other prominent lawyers of central New York whose acquaintance he had formed was Martin Grover, then a resident of Angelica. This famous jurist, who later adorned the Supreme Court and the bench of the Court of Appeals, was then in the midst of a most successful practice. Not long after his graduation Proctor was called to Angelica on a business matter of some importance, which detained him several days. His visit was made pleasant by several prominent citizens, to whom he had carried letters of introduction from Mr. Seward. While there the Allegany Circuit Court and Court of Oyer and Terminer were in session. Having disposed of his business, Proctor visited the court house. The results of that visit are given in the following extract from Mr. Proctor's eulogy on Judge Martin Grover, deliv ered at the court house, Belmont, before the Allegany and Cattaragus county bars: - "The first time I saw Martin Grover was a memorable event in my life. I had occasion to visit Angelica on business. The Allegany Circuit was in session. Having completed my business, I went to the court house, anxious to learn how justice was administered in that distant, and, at that time, somewhat uncultivated country. To my surprise I beheld a bar as brilliant as any in central or western New York. A criminal case that attracted great attention had just been moved. Luther C. Peck, then of Pike, Allegany county, and the late Edward Howell, of Bath, then in the plentitude of their splendid practice, appeared for the people. The Hon. William G. Angel, then a leading lawyer of the State, appeared for the defense, and, as I supposed, was conducting it alone. In the crowded bar, not far from him, and near the prisoner, sat a poorly, nay, if I must say it, a shabbily dressed young man, whom I took to be a friend of the accused. For a long time I did not see his face. It was turned toward the witness stand, whose occupants he watched with an allabsorbing interest. Sometimes he whispered to Mr. Angel. At length the young man turned so that I obtained a full view of his face, and I was struck with his broad, expansive forehead a face on which intellect had set its signet-seal -a face animated with thought a study for a painter and I silently congratulated the prisoner on having a friend so intelligent to stand by him in his hour of peril, but regretted that chill penury' compelled him to dress so very poorly. When at last the evidence was all in it became the duty of the defense to address the jury. Judge of my surprise when this apparently poverty-stricken young man arose and commenced summing up to the jury, for I did not dream he was a lawyer. But his language soon began to attract my attention and arouse in me the enthusiasm that eloquence always does. His exordium was modest, but exceedingly rich in thought, couched in language of the plainest common sense, unaffected by any attempt at eloquence, yet in every sense eloquent; free from all rhetorical drapery, yet tersely rhetorical every word adjusted to its appropriate place and the fabric of his argument grew into a beautiful and perfect edifice. He talked of common matters in a direct and common way, sometimes arriving at his conclusions by a sort of cross-road route. He flew to no distant sphere for the purpose of exhibiting a graceful flight, but grasped the case, and all of it. handling it with something of the plastic ease of a potter forming clay into symmetrical form. At times he was one of the jurors, anxiously endeavoring to harmonize the deep, angular lines in the circumstances of the case; occasionally he paused to give extension to some latent thought, illuminating it with language that brought it out in all its force. Finally his argument was characterized by such power of mind and stores of legal knowledge that it rendered him the peer of any lawyer around him in the bar. It was a strange, novel and wonderful combination. It was intellect in its amplitude, eloquence approaching perfection, talents in their affluence, mind in its triumph. It was Martin Grover in the garb of poverty triumphing in the high-born majesty of mind. He was one of the most formidable adversaries that ever stood at the bar. One could do nothing with him; could make no calculation for him; could never tell in what manner or where his blows would fall, or where his points of attack would be; what scheme of defense he would adopt. His overflowing manner carried the jury irresistibly with him, often submerging all the sober, painstaking arguments of his opponent in a sea of laughter. At the bar he had the faculty of making his expressions the exact reflection of his thoughts; of embodying each separate idea in an adequate, but not redundant form." During Proctor's stay at Angelica he listened to several of Grover's arguments before the court and the jury, and he became so delighted with him, was so deeply impressed with his learning, eloquence and success, that he determined to begin his legal studies with him. Accordingly he called on Mr. Grover and expressed his desire to enter his office as a student. Mr. Grover, who had previously met Mr. Proctor in company in the village, expressed his surprise that a fashionable young gentleman, fresh from college, accustomed to see the great lawyers of central and western New York, should have any desire to enter an office so different from those he was accustomed to see. "Why have you come to this determination?" asked Grover. 66 Because I desire to prepare myself thoroughly for the practice of law, and I think I can do this with you better than with any other person I know. I have decided to become a student in your office, if you will accept me," said Mr. Proctor. "I will do so with pleasure, under the sole consideration that you come here to study law. for I will not have a student about me who does not make that study the great object of his life." “You have hit me exactly, Mr. Grover. That is the great object of my life." "Very well, you can commence at any time you desire." In less than a month young Proctor was installed as student at law in the office of William G. Angel and Martin Grover. This connection, which lasted a year or more. Mr. Proctor has ever regarded as one of the most fortunate of his career. It afforded him most valuable experience and training in the law under the eye of a legal giant. Grover was a perfect glutton for work. He was a bachelor, and his |