and the king of conversationalists. He speaks like a pump, and talks like a bottle running water. No convic tion, no sincerity, no appeal, ... if this is what London calls a great man, I'll kick the ball like a toy before me yet." This book of Mr. Hutton's, adorned with pictures of the casts from many distinguished faces, is very readable. The noblest and most beautiful of all is Napoleon's —-the face of one born and fit to rule the world. Naturally that of Thackeray has no nose to speak of, and that of Wordsworth a great deal to speak of. Those of Sam Johnson and Ben Caunt, the prize-fighter, have a good deal in common. The least dead-looking and pleasantest is Cavour's. Agassiz's is very noble and attractive. Curiously enough, Charles Sumner's might answer for Falstaff. Sheri dan's is pitiful. Tom Moore's looks distressed, as if some one were singing his " Melodies" out of tune. Palmerston's has a beak like a bird, and Beaconsfield's ought to have, but it has not, but it has that little lovelock on his forehead. Cromwell's looks singularly amiable. Swift's looks imbecile, and Charles Twelfth's does not look mad. Grant's shows a grand head and a peaceful face. Franklin's does not exhibit the wisest man of America. Aaron Burr's is the face of a tricky and resolute man. Webster's head is grand, but the nose is not equal to it — what nose except Napoleon's could be? Bentham's is posi tively grotesque — Harlequin's. It gives one singular sensations to peruse these unconscious lineaments, beyond the power of self-posing or artistic flattery. Some of the subjects ought to be very glad that they cannot view their own death-masks. There are few lawyers among them — Curran, Lincoln, Clay and Calhoun are the only ones in addition to those men tioned above. NOTES OF CASES. Reference — Long Account. — A decision of great importance, and which will probably be rather surprising, is that of the Court of Appeals in Steck v. Colorado Fuel and Iron Co., 142 N.Y. 236; 25 L. R. A. 67, that long accounts in a counter claim, in an action on contract where plaintiffs claim is dis puted, will not justify compulsory reference, in view of the provision of the Constitution for " trial by jury in all cases in which it has heretofore been used in the colony of New York," since the practice in the colony permitted a set-off only with plea of payment, which admitted plaintiffs claim, and the provision in the Colonial Act of December 31, 1768, for reference of actions involving a "long account either on one side or the other" was applicable to a counter-claim only when the plaintiffs claim was admitted. In the course of a long and careful opinion Earl, J., ob serves : —
"I have examined all the old works on practice, and all the earlier reports, and have found no trace or hint of a practice that would authorize a reference in such a case as this; and since the adoption of the revised statutes, and the introduction of the code practice, I am confident there is no reported decision of any court of this state which sanctions the reference of an action merely because the answer involves a long account, when, upon the cause of action alleged in the complaint, standing by itself, either party could could demand a jury trial, except the decision in the court below in this case, and in the cases where, upon appeals to this court, the decisions of the lower courts were reversed. If it should be asserted that the right of trial by jury had, by the practice and usage of the courts, become curtailed, prior to any of the modern revi sions of the Constitution, so as to give the meaning of the guaranty as to jury trial a more limited scope than it had in the Constitution of 1777, I answer that the assertion is unfounded." Andrews, C. J., and Finch and O'Brien, JJ., dissented, the former writing an elaborate opinion, in which he declares that in six old reported cases a reference was granted not only when the plaintiffs claim was put in issue, but where it was actually litigated on the trial, and lie declares that such was the old English practice and that such has been the rule in New Jersey and Kentucky. He also argues that in construing the constitutional provision for jury trial, " the principle which governed the colonial practice permitting compulsory references is to be applied," and that "the principle established by the colonial legislation was that actions on contract in volving litigations of long accounts ■ on either side ' should be referred for trial to referees, to relieve jurors from perplexity, and to prevent the obstruction of justice. This legislative power was not abrogated by the Constitution." And finally that the cases relied on by the majority of the court, viz. : Townsend v. Hendricks, 40 How. Pr. 143; Welsh v. Darragh, 52 N.Y. 590; and Untermyer v. Beinhauer, 105 N.Y. 521, are distinguishable because they are cases either of tort and not of contract, and for that reason not referable, or for damages for breach of contract. In conclusion he says : — "The rule here contended for is plain, simple, and practical. It is consistent with the Constitution. It is in harmony with the public policy upon which statutes for compulsory references are based. The opposite rule vio lated the language of all statutes on the subject framed since colonial times. It is based on views so close and critical that they can be comprehended only with difficulty. It puts it in the power of a plaintiff, by exaggerating his own claim, to prevent its admission by the defendant, and thereby defeat a reference of a long account arising on a counter-claim. If the order in this case is reversed, the court will, I think, reverse the practice which has prevailed in the courts of this state without question for more than a hundred years. It is the strongest confirmation of the view that the words ' on either side ' mean what they plainly
