restored to consciousness and self-possession by the kindly attentions of Judge Thomas, when disconcerted by the more abrupt manners of a no less kindly, but less thoughtful, associate. He loved his profession as one of the highest and noblest in its purposes and achievements; and every worthy member of it was to him a brother. He was steadfast in every movement for its elevation, exerting to that end all his influence, both in public and in private. As president of the Bar Association, in the success of which he was deeply interested, he never failed to attend its meetings, and no one who was present at the dinner of the association in January last will ever forget the felicitous address with which he opened the intellectual exercises of the occasion, and the entire abandonment to enjoyment with which he threw himself into its festivities.

He was such an advocate as is described by Lord Chancellor Campbell in his memoir of Erskine, — an advocate inspired by a generous love of fame, and desirous of honorably assisting in the administration of justice by obtaining redress for the injured and defending the innocent; one who has studied liberally the science of jurisprudence, and stored his mind and refined his taste by a generous acquaintance with elegant literature; one who had an intuitive insight into human character, and into the workings of human passion; one who was able, by his power of persuasion, to give the best chances of success to every client whom he represented in every variety of public causes; and one who, by the victories which he gained and the principles which he established, has helped to place the free constitution of his countrymen on an imperishable basis.

If the court please, I am requested by my brethren of the bar to present the following resolutions to the court, and to ask that they may be entered on its records as an enduring testimonial to his merits by those who knew him best.

The Attorney General then presented the following resolutions:

Resolved, That the members of the Bar of Suffolk County desire to record their sense of the great loss which the legal profession and the people of the Commonwealth have sustained in the death of Benjamin Franklin Thomas, formerly Associate

Justice of the Supreme Judicial Court; a wise counsellor, an eloquent advocate, a patriotic citizen, an upright man. As a judge, he was remarkable for his sound learning, vigorous intellect, strict impartiality, and for his uniform courtesy and kindness to all. As an advocate, his efforts were characterized by clearness of statement, methodical arrangement, logical reasoning and fervid eloquence. His public career illustrated his love of country, his devotion to duty, and his personal independence. The purity of his life, his nice sense of honor, the warmth and steadfastness of his affections, endeared him to all who enjoyed the privilege of his friendship.

Resolved, That we ask that these resolutions be presented by the Attorney General to the Supreme Judicial Court, with the respectful request that they may be entered on its records as an enduring testimonial to the merits of the deceased by those who knew him best.

Resolved, That we deeply sympathize with the family of our departed brother, and that a copy of these resolutions be trans mitted to them by the chairman and secretary.

CHIEF JUSTICE GRAY responded as follows:

Brethren of the Bar: The court heartily concurs in your testimony of respect and affection to the late Judge Thomas.

When comparatively a young man, he was conspicuous in the front rank of a very able bar; before he was forty years old, he was appointed, with the general approval of the profession and of the public, to a seat upon this bench, where, in a service of less than six years, he gained a lasting judicial fame, such as has hardly ever been acquired in so short a time; and for the twenty years since his resignation he has been known and honored as one of the first lawyers and best citizens of the Commonwealth.

Warm-hearted, sincere, courageous, independent, high-minded and public-spirited; remarkable, throughout his career at the bar, alike for the enthusiasm with which he threw himself into a cause, and for his prudent and thorough preparation of it; he was a beloved leader, and a valued and trusted colleague. He looked upon precedents not as masters, but as aids, and hesitated to follow them, unless satisfied that they were founded in principle. He was an ardent student of the history of constitutiona

law and government in England and America. He had that characteristic of the greatest lawyers of both countries, an inborn love of freedom and of justice, and a profound conviction that freedom is best assured, and justice best attained, by having both sides of every question fully and fairly argued. In the discharge of every public trust, and in the performance of every professional duty, he acted upon the motto of Selden, Пɛpi лavτòs tηv ¿2ɛv0ɛpíav — “Above all things, liberty." παντὸς τὴν ἐλευθερίαν

In private life, he was domestic, companionable, hospitable, generous. He partook of the opinion of Bacon, that a garden is the purest of human pleasures, and the greatest refreshment to the spirits of man. As often as he changed his dwelling-place from one part of the State to another, he thought it essential to the completeness and comfort of his home to plant and cultivate an orchard, in which he might gather recreation for himself and gifts for his friends. Few professional men in active practice have been greater readers of poetry and philosophy. He was a special admirer of the lofty sentiments and majestic rhythm of Milton. He was familiar with the chief works of the foremost thinkers of our own time. But no subtlety of logic, no brilliancy of theory, could shake his hold upon that hope which is as an anchor of the soul, both sure and steadfast, and which entereth into that within the vail.

In accordance with the request of the bar, their resolutions, together with a memorandum of these proceedings, will be entered upon the records of the court.

The court then adjourned.

INDEX.

ABATEMENT.

See PLEADING, 5.

ACCORD AND SATISFACTION.

See CONTRACT, 5.

ACCOUNT.

See EQUITY, 7.

ACTION.

1. A person may maintain an action against two or more persons, who, by
concert of action, fraudulently induce him to leave his home in another state
and come into this Commonwealth, with intent to cause his arrest and com-
pel him to settle a disputed claim; and it is no bar to the action that, after
his arrest, he submitted himself to the jurisdiction of the court without
pleading the illegality of his arrest in abatement.
Cook v. Brown, 503.

2. The owner of land, who makes a contract with a firm of masons, by which
the latter are to furnish all the materials and labor in building a party wall,
half on his land and half on the land of an adjoining owner, is liable in tort
to such adjoining owner, after the wall has been completed and accepted,
for an injury to his property by the fall of the wall, resulting from its de-
fective and unsafe condition, whether owing to his own negligence or to that
of the masons. Gorham v. Gross, 232.

8. In an action of tort against a religious society, and against A. and B., it
agents, for personal injuries occasioned to the plaintiff by the fall of a stag-
ing, upon which he was standing while engaged in painting the ceiling of a
church belonging to the society, it appeared that A. and B., acting as a
committee and as the authorized agents of the society, made a contract with
C., in whose employ the plaintiff was, to paint the whole of the inside of
the church building for a gross sum, and not subject to the direction or con-
trol of the defendants, except as to the quality of the work and the time
within which it was to be performed; that the society undertook to erect
and remove the staging to be used by C., and, acting through the same
agents, employed D., a carpenter and builder of their own selection, by a
contract for a gross sum, and not subject to the direction or control of the
defendants, to erect and remove the staging and to supply all the material