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[148] the court,—which he strongly urged, he made a vigorous opening to the jury on the truth of the article complained of and the motives of its author, and discussed at length the law of libel.

The following December he was counsel, as junior, with Theophilus Parsons,1 for the plaintiff, in the case of Pelby v. Barry, tried in the Supreme Judicial Court before Mr. Justice Morton,2 —a novel action exciting public interest, in which the plaintiff sought, by applying the rule governing the relation of master and servant, to recover damages against the defendant for enticing Miss Kerr and other actors from his service.3 He made quite a full opening argument, covering, as was usual with him, a wide range, which included a review of the drama, and particularly melodrama, this being the specialty of the actors enticed by the defendant; bespeaking the favor of the jury for his client, as the weaker party, and entreating them not to indulge in any prejudice against him because of his profession. The jury disagreed, and the entry, ‘neither party,’ was made on the docket.

Sumner's first appearance before the Supreme Judicial Court at law-terms was in 1837. He was junior counsel in the argument of two causes, one heard in March relating to a mortgage of personal property,4 and the other, in June, being an action of tort for wrongfully putting a party's name on certain medicines.5 He was called into the former case by Richard Fletcher, and into the latter by Theophilus Parsons,—two friends who watched with interest his professional career. He prepared a brief for Mr. Fletcher in a case involving the question, whether an agreement to procure a certain location for a railway-station is void as against public policy, and suggested the point on which the case was decided.6

Among his papers is an elaborate opinion, written in 1835, which reviews at length the authorities on a question arising under the law of watercourses,—whether the proprietors of mills

1 Mr. Parsons, an early friend of Sumner, was afterwards for many years Dane Professor in the Harvard Law School, and is the well-known author of the ‘Law of Contracts’ and other law treatises.

2 Evening Mercantile Journal, Dec. 24, 25, 1835.

3 It was held in England, in 1853 (Coleridge, J., dissenting), that such an action was maintainable. Lumley v. Gye, 2 Ellis and Blackburn's Reports, p. 216; Lumley v. Wagner, l De Gex, Macnaghten & Gordon's Reports, p. 604.

4 Shurtleff v. Willard, 19 Pickering's Reports, p. 202.

5 Thomson v. Winchester, 19 Pickering's Reports, p. 214.

6 Fuller v. Dame, 18 Pickering's Reports, p. 472. Sumner's name does not appear in the report of the case.

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