tice, forbearance, moderation, and mutual civility, are the most favorable for full discussion and just decision, and in entire consistency with that manly character and uniform assertion of right, which it is the honor and the duty of the bar and the bench respectively to maintain.

ment.

When I received my appointment, there was a distinct Circuit Court. The District Judge had not a seat in that Court. It was then my impression, abundantly confirmed since, that the alteration of the law in that particular is not an improveThe employments of the District Judge, of various descriptions in Court, and of ministerial and miscellaneous character, are of such amount in this highly commercial district, that it seems neither reasonable nor advantageous to require his attendance and agency in another Court. This consideration will be more especially urgent, if a bankrupt law should be enacted, and the jurisdiction of the Court should be enlarged in reference to crimes and offences, one or both of which augmentations of the duties of the District Judge, there seems reason to expect.

By becoming connected with the Circuit Court, I had the satisfaction of an association and intimacy with the venerable Judge Cushing, and of affording, I believe, some acceptable aid in his decline of life; and I have, in my turn, received relief and great enjoyment with his distinguished successor, the Hon. Mr. Justice Story. In that connexion I have found every thing, that could be wished. In business, never asking or expecting from me more than my engagements in my own special sphere would consistently admit. By his eminent ability and unwearied industry, in a great degree relieving a solicitude, which I might otherwise have experienced, from responsibilities in reference to the Circuit Court, and by his able decisions, as well as by his learned labors, inter sylvas academiæ, affording salutary aid in various departments of my official duty. I have noticed with pleasure the improving influence of the

Law School in the University. The professional publications from some of his young pupils at this bar are highly honorable to them and to their instructer.

I must forbear, Gentlemen, to enlarge, though there remain topics, connected with my position, which it would not be impertinent to consider. A great portion of the business, which we have been concerned in transacting, has been of Admiralty jurisdiction, in which the trial rests wholly with the Judge, as to fact as well as law. This characteristic, in regard to a large portion of the cases before him, is attended with peculiar solicitudes, requiring the candid consideration, which I have had the happiness to experience. It would be a great relief to the judge, and might be an improvement, though of this I am not certain, if facts in Admiralty and maritime cases were made triable by jury, as they are rendered by statute in regard to seizures on land. The solicitudes of the bench, arising from the present law and practice in that particular, are, however, not of such character and degree as to call for the alteration suggested. In this respect, as well as in all other branches of practice, I have been relieved by the courtesies of the bar, which I have uniformly enjoyed, and for which you have my cordial thanks.

Dr. Taylor, in his Elements of Civil Law, has a remark not inapplicable to my present position. It is relative to the passes or bridges, over which the voters in ancient Rome proceeded to give in their ballots.

"It was in this pass, that people of sixty years and upwards were objected to, and refused the right of suffrage; for, as sexagenarians could not be members of the comitia, as they could not be compelled to execute any public office after that age, so the younger sort thought it unreasonable, that they should be indulged their suffrage, and thrust them by, as they came along, whence the phrase Depontani Senes." Upon this rigid system, I should long ago have been Depontanus; but

am willing to believe my generous auditors would consent to give me still further grace.

But the time of release has arrived, and meets with my acceptance. I bid you an affectionate adieu, thankful for all your kindness, and for the gratifying and improving opportunities, which it has been my favored lot to enjoy, in the connexion now to be dissolved. It is painful to employ the solemn word, dissolved. Our official connexion will cease; but reciprocal esteem and good-will, will, I trust, remain in continued exercise. I shall rejoice in all I may see or hear of your prosperity and honor; and may the Father of Mercies, the giver of every good gift, sustain, animate, and guide you your assiduous progress in the path of arduous duty.

in

Judge Davis then descended from the Bench, and took leave of the members of the Bar and the officers of the Court individually. The character of this learned and able judge was marked by a wise patience of investigation and a clear discrimination of principles. Yet it was not alone in his judicial capacity, that he won the esteem of all around him, but rather, that to the high intellectual powers which he displayed in all the labors of his office were superadded a mild urbanity of manner, an unprejudiced candor of judgment, and a uniform dignity of deportment, which rendered him as much beloved as respected.

INDEX.

AMENDMENT.

See CONSTRUCTION,

ANSWER.

APPEAL.

See ADMIRALTY, 6.

APPORTIONMENT.
See INSURANCE, 14.

ASSAULT.

See ADMIRALTY, 7.

ASSIGNMENT.

See ADMIRALTY, 7.

ATTACHMENT.

1. The Insolvent Act of Massachusetts of 1838, ch. 163, does not dissolve an attachment in the Courts of the United States, made under the antecedent State Laws adopted by Congress.

Springer v. Foster. 601 2. The legislature of Massachusetts can promulgate rules for the State Courts only, and cannot affect the validity or effect of process in the Courts of the United States. Ibid.

AVERAGE, GENERAL.
See INSURANCE, 13.

BAIL.

Where a cause is removed from a State Court to the Circuit Court of the United States under the Judiciary Act of 1789, ch. 20, § 12, and special bail is given; if the bail afterwards seek to surrender the principal, it should be in open Court, and not by a commitment to gaol according to the local law of the State. But if the principal is so committed, the Circuit Court will, upon the petition of the bail, grant a writ of habeas corpus to bring the party into Court, to be surrendered in discharge of his bail. Comstock v. Seagraves. 546

BETTERMENTS.
See EQUITY, 5.

BILL IN EQUITY.
See EQUITY, 13.
JURISDICTION, 2.

ise to accept a non-existing bill of exchange, even though it be taken by the holder upon the faith of that promise, does not amount to an acceptance of the bill, when drawn in favor of the holder.

Wildes v. Savage. 22

2. It has been otherwise held by the Supreme Court of the United States. Yet if the bill be payable after sight, and not after date, such a promise has never been held in either country to be an acceptance of a non-existing bill. Ibid.

3. It is not necessary, that the various parties to a negotiable instrument should be different persons, in order to render it a bill of exchange. Ibid.

See GUARANTY.
COMMISSION, 3.

2. Where, by a banker's circular, a certain commission was named on bills or credits "used east of the Cape of Good Hope;" it was held, that the drawing of bills under a letter of credit, in favor of a third person, who, upon the faith 1. By the English law, a prom- of the letter of credit, takes and

BILL OF EXCHANGE.