The Eloquence of Facts with the doing of it. It is safe to say that no woman ever missed finding out any thing, if it could be done by looking and listening. It is the barest charity to the un fortunate deceased to presume that she would not have done violence to this fundamental instinct had there been anything to gain by obeying it. The case of Fisher v. Pennsylvania Rail road Co., therefore, is not authority for this case, and no negligence has been shown on the part of deceased. The above case has been misunderstood, and it may not be improper to sound here a note of warning to the profession. It seems to be the impression that we decided in that case that the action was properly brought. Such was not our intention. Neither under the act of 1851, providing that such actions shall survive, nor under the act of 1855, des ignating in favor of what persons they shall survive, can the case of Fisher v. Railroad Co. be sustained. In that case George Fisher
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sues without stating in what capacity he claims. No .letters, either testamentary or of administration, appear to have been out on the mule's estate. From the name of the plaintiff we judge he could not have been the widow, and we take judicial notice of the physiological fact that there is an almost conclusive presumption against the legiti macy of the lineal descendants of a mule. That case was well decided upon other con trolling principles, and upon them its author ity remains unimpeached; on all other points it is an excrescence and an anomaly in our judicial system to which it is our duty to apply the knife with unsparing hand, and that decision is therefore overruled. For the reasons above stated, the judg ment of the lower court is reversed and a venire facias de novo awarded. I will add that if this decision shall be found to be a mistake, it will afford me pleasure to unite with my brethren in over ruling it.
THE ELOQUENCE OF FACTS. IT has become the fashion to talk about the decline of eloquence, and to speak of oratory as one of the lost arts. Nevertheless, there has never been a time when the faculty of public speaking was so widely diffused. The ordinary business man is quite capable of expressing his opinions at a directors' meeting, succinctly and often forcibly, in a form that would have passed for a set speech in former years. The truth is that with the advance in general education, and by reason of the large fund of information on all topics that everybody must gain nowadays even if he reads only the daily journals, the arts both of writing and speaking have become such well-nigh universal acquisitions, that the prestige of "a few men of genius is com paratively much smaller than it used to be. It must be admitted that in the department
of statesmanship and politics, especially in this country, the literary has largely super seded the oratorical form of address. The people are instructed and led by the news papers, not by Congressional speeches; and legislative bodies have become merely the registers and executing agents of the public opinion so formed. But in the pulpit and at the bar we think that not only is the oratori cal average higher, but that there are more great orators now than at any previous time. Undoubtedly there has been a great change in the prevailing style of oratory, — a change toward sobriety of rhetoric and delivery, — which was bound to come with the increase of intelligence. But the intellectual growth of the masses has called for a change also in the substance of discourse. A modern audience, be it only an average petit jury,
