« EelmineJätka »
in law, a new nuisance. Ramsdalo v. Foote, 55 Wis. of so much business, he answered: “The remedy is 557. Stadler v. Grieben. Opinion by Cassoday, J. easy. Let the judges do more work.” Seeing my sur. [Decided Dec. 25, 1881.]
prise, he explained that he did not cousider the judges NEGLIGENCE-CONTRIBUTORY-INFERENCE EITHER
to be lazy, but that they wasted their owu time in
writing long opinions, and allowed counsel to waste WAY-QUESTION FOR JURY.-Plaintiff, who was in
their time with unnecessarily long argumeuts. jured, while sitting upon a stairway leading to a basement, by a block of ice which fell from the shoulder of
A very limited experience of my own iu this court defendant's servant, who was carrying it down to
inclines me to the belief that there is much truth in
what the counsellor told me. such basement, and the question of the negligence of
If you go into the court said servant in carrying the ice, was properly submit- almost any day you will possibly find one counsel 00ted to the jury. The mere fact tl at the plaintiff on a
cupying the whole day with his presentation of his
side of a single case. hot day left her place of business and sat down upon
More often you will find young the stairs near by in the shade to rest, does not au
counsel arguing cases presenting but a single point, but
consuming the whole of their two hours in the arguthorize us to say as a matter of law that she was guilty of contributory negligence. Murray v. McShane, 52
ment of that point, laboring over propositions that Md. 217. When facts and circumstances, though un
nobody disputes, and reading long extracts from disputed, are ambiguous, and of such a nature that
printed opinions that these same judges have themreasonable men, unaffected by bias or prejudice, may
selves written, and are perfectly familiar with. The disagree as to the inference or conclusion to be drawn judges listen attentively for about five minutes, or unfrom them, then the case should be submitted to the
til they are possessed of the point, and then some yawn, jury. Townley v. Railway Co., 53 Wis. 633; Hill v.
or even go to sleep, and the rest look at the clock. All Fond du Lac, 56 id. 246; Nelson v. St. Paul, etc., R.
suffer in silence, and permit the speaker to run ou with. ('0., 19 N. W. Rep. 53; Abbett v. Railway Co., 30 Min.
out question or interruption. 483. It is to be remembered that the servant of the
It seems to me (with all due deference to so learned defendants was the active agency, and had full con
a court) that if the judges would themselves take part trol and management of the cake of ice in question.
in the argument, and stop the speaker when they were This being so, and the accident being such as would fully possessed of his point, as courts in other jurisnot in the ordinary course of things have happened if
dictions do, they would save themselves not only time, the servant had been in the exercise of proper care,
but a vast amount of fatigue, for there is nothing so and in the absenco of any evidence tending to show
wearing as being bored. If the court should provide that a piece of the ice broke off while the cake was be- | by rule that briefs should be filed a reasonable time being carried with ordinary care, we must hold that the
fore the argument, such a rule would be of great assist
anco to the court. jury were authorized to infer, from all the facts and circumstances disclosed, negligence on the part of the
Then can any one doubt that the judges write too servant of the defendants. Scott v. London, etc.,
long and too many opinions? No one can read any Docks Co., 3 Hurl. & ('. 596; Kearney v. Railway ('0.,
volume of the Court of Appeals reports without seeing L. R., 6 Q. B. 759; S. ('., 2 Thomp. Neg. 1:2:20; Mullen
that the judges, instead of declaring what the law is, v. St. John, 57 N. Y. 567; Transportation Co. v. Dow
have wasted time and strength in the vain effort to ner, 11 Wall. 1:29 ; Murray v. McShane, supra; Rose v.
harmonize all the cases, to reconcile the irrecoucilable Stephens, etc., Transp. ('o., 11 Fel. Rep. 138; S. (., 13
and to distinguish the undistinguishable. This shows Rep. 4:21; ('ummings r. National Furnace ('»., 18 N. W.
a most laudable conscientiousness on the part of the Rep. 714. In such case it is hardly accurate to say judges; and if the calendar were smaller no one could that negligence is presumed from the mere fact of the complain that they burdened themselves with so much injury, but rather that it may be inferred from the
not wholly necessary labor, but when, as at preseut, facts and circumstances disclosed, in the absence of
delay amounts to a denial of justice, the judges should evidence showing that it occurred without the fault of
not attempt to write opinions in so many cases, nor to the defendant.
In such case the facts and circum- write such long opinions. stances speak for themselves, and in the absence of
1 give you these views of my own for what they are
worth. such explanation or disproof, give rise to the inference
R. of negligence. Such a caso comes within the principle of res ipsu loquitur. Briggs v. Oliver, 4 Ilurl. & ('. 107; ('arpue v. London, etc., R. Co., 5 Q. B.751; Cockburn,
MR. ('OWEN OX CODIFICATION. ('. J., and Kelly, ('. B., in Kearney v. London, etc., R. ('0., suprul. Since a jury may draw any legitimate in
Editor of the Ilbany Law Journal : ference from the unqualified and unrestricted facts Some time ago, I can't exactly recollect when, I saw and circumstances disclosed in the evidence, it follows
a newspaper report of a lecture delivered by Mr. David that they would not be authorized to come to the same Dudley Field before a Now York law school, in which conclusion if such inference had been wholly removed a civil code was, of course, the chief subject of discusby evidence. The case before us is certainly on the sion. border line, and close to the line at that. Kuples v. If I remember rightly, the main points made by Mr. Orth. Opinion by (assoday, J.
Field were that the ('ode would greatly reduce the [Decided Nov. 25, 1881.]
number of law reports, and would enable the ordinary business man to ascertain the law for himself, without tho aid of counsel. Lpon the first point I suppose you
agree with Mr. Field, because I notice that the LAW CORRESPONDENCE.
JOURNAL most generally does agree with Mr. Field in
whatever he has to say upon this subject. But inasRELIEF OF THE COURT OF APPEALS.
much as one of your numerous and useful occupatious Editor of the Albany Law Journal:
is to edit law reports, which I have to buy, it is possi
ble that wo may look at the subject from different Some time ago I was talking with one of the most
points of view, and it is for a few remarks from my eminent counsellors in the State on the subject of the point of view that I ask you to indulge me with a letrelief of the ('ourt of Appeals. To my question what tle space in your excellent journal. should be done to relieve the court from the pressure Is it true then that a Civil Code will diminish the
number of law reports ? Patrick IIenry is reported to unless such agreement, or some noto or memorandum have said that wo “have no way of judging of the fu
thereof expressing the consideration be in writing.” ture but by the past.” A very small portion of the
Is not the clause above quoted perfectly plain? Would law of this State - that relating to practice — has been Dr. Field's future expounder of the law, the “ordicodified, and by no less a person than Mr. David Dud nary business man,” hesitate a moment as to its meanley Field himself.
ing? A promise to pay the debt of another must be in If since the adoption of the Codo of Civil Procedure writing, and the writing must name, mention, or set there have been fewer law reports upon the subject of forth the consideration for the promise. Could any practice than before, Mr. Field has proved his case. If thing bo clearer ? Yet as a matter of fact no question on the contrary such reports have greatly, immensely, has been more fiercely disputed in the courts of this increased, it is fair to presume that upon this point at State than the meaning of tho words, expressing tho least Mr. Field may be mistaken.
consideration." Decision after decision of the SuWhat are the facts ? Prior to the adoption of the preno ('ourt and the Court of Appeals diametrically Code of 1818 the Stato law and equity reports were
opposed to one another appeared from time to time, contained in about 96 volumes, covering the period and no lawyer in the State could tell with any cerfrom 1799 to 1819 or 1850, say fifty years. A few pages
tainty what they did mean. Finally the Legislature in these reports were devoted to civil and criminal cut the Gordian knot by striking the words out of the practico. I calculate that if we say that the space as
Statute. signed to casos of civil practice alone was equal to six
It is hardly possible that Mr. Field has used lanvolumes of the ninety-six, it will be a liberal allow
guage in his ('ivil Code more plain and distinct than ance. No reports were limited to practice cases alone.
the language I have quoted, and if the ("ode shall be Many years of legal experience had made the practice adopted there will be hundreds and thousands of just familiar to bench and bar, and no such reports Wero
such conflicts as to its meaning. Tho evil would not necessary. But in 1848 the Legislature passed the Code
be so extensivo if a (odo were over allowed to remain of Procedure, in which Mr. David Dudley Field had
as settled by the courts. simplified the rules of practice and had made them cer But the passage of one (ode is always an invitation tain, so that an “ ordinary business man ” could un
for some one to try his hand at another. in some derstand them without difficulty. The result must be twenty-five years, by the expenditure of vast sums of extremely gratifying to those who hold with Mr. Field money, and the aid of the judicial decisions in the 113 that the multiplication of law reports is an evil.
volumes to which I have referred, the Field ('ode of Within the last thirty-five years, aside from the cases
practice became a most excellent system. of practice in the regular reports, at least three times
Then an inscrutable Providence raised up Mr. M. II. as numerous as in the preceding fifty years-and tak
Throop, who at once applied himself to the grateful ing only the volunes I find in our own library, there task of unsettling the rules of practice, and for the have been issued 113 volumes of reports relating to
last eight years the courts have been engaged in a degpractice alone as against ninety-six volumes of reports
perate and generally unsuccessful attempt at finding upon all subjects prior to 1850. Judging by this in
out what Mr. Throop meant. stance, which is certainly a fair test, it does not seem
In spite of these considerations, Mr. Editor, tho to me that Mr. Field's plan for reducing the number
probability is that sooner or later we shall have a ('ivil of the reports has proved an unmixed success. It has
('ode, and that it will be lir. Field's ('ode. taken an average of over three volumes of reports a
The reason is that with a body like our Legislature, year to judicially establish Mr. Field's meaning in it
il single strong-willed, persistent, powerfully conbrief statement of the successive steps for enforcing
nected man like Mr. Field, who is willing to spend his the rights of a party in a court of justice, il very small time and money for il particular object, is likely to be and comparatively unimportant part of the law of this more influential than all the other members of the bar, State. How many will it take when he has collected
busy with their own affairs. The “malice prepense all the rules govering the numberless relations of an
with which Mr. Field, at the age of cighty, “hango advanced and complex civilization sawed off ani on” to his faculties, apparently for the sole purpose of stretched out to fit into his Procrustean bed of a pushing this code through the Legislature, is in itself Code?
a menace to the peace of mind of the lawyers of the Nor is it true that the proposed ('ode, or any code,
State. I would not shorten his valuable life, or will render the present reports unecessary. in all
abridge for a single moment his time for repentanco cases the courts will first consider what the law was
la man who has written half a dozen ('odes must havo before the ('ode was adopted. They will then consider
a great deal to repent of), but why, I ask, if he means whether or not the ('odo has change the former rule',
fairly by the public, does ho not show some signs of and if so, in what respect. Every section, sentence
old age? and lino will need judicial construction, and a knowl
Why is it that “his eye is not dimmed, nor his natuedge of the law prior to the Code will be an indispensila
ral force abated?" ble requisite to such construction. Indeed the only Why is it that when, according to all the authorities difference between a legal system without a ('ode, and the “grasshopper" ought to be a burden ” to him, with one, is this: Without a (ode the judges decide no insect lighter than a policeman's “Jocust what the law is; with a ('ode tho Legislature attempts
able to affect in the least his iron endurance. I cannot to state what the law is, and the judges decide what repress the melancholy thought, Mr. Editor, that long the Legislature meant -- in nine cases out of ten the years from now, when you and I have “gone over to most difficult task of the two).
the majority," and the cold marble is recounting our If you do not agree with mo, look at the decisions dubious virtues to an incredulous posterity, Mr. David of the courts construing the "statuto of frauds." This Dudley Field will be cheerfully celebrating his hunsubject (the invalidity of contracts not attested by dred and twentieth birthday, making speeches before certain formalities) has always been embodied in a countless committees of the Senate and Assembly, and Code, and I know of no questions that have been more misleading the callow youth of the profession by lecdiscussed, or upon which courts have more widely dif turing before all our law schools on the virtues of a fered, than upon those arising under this statute. Civil Code. Against such an adversary the opposing "Every special promise, to answer for the debt, de lawyers, who are more or less mortal, and subject to fault of miscarriage of another person shall be void natural decay, bare little chance of success.
I am not a prophet, nor the son of a prophet, but I Judgment affirmed, with costs-Samuel Tolles, rethink I can foretell the result of a Civil Code. Scores spondent, v. W. Stanard Wood and others, appellants. of years and millions of money will be spent in the -Order affirmed, with costs—People ex rel. Mary N. endeavor to ascertain and fix the rules of law so that Townshend, respondent, v. Artemas S. Cady, appelthey shall be as definite aud certain as they are now. lant; People ex rel. Germau-American Loan & Trust Then some new codifier, with the same laudable desire Co., appellauts, v. Samuel Richards, respondent; In to hand his name down to posterity which actuates ro Petition of John Kennedy to vacation, etc.— ApMr. Field, will obtain the permission of the Legisla- | peal dismissed on the ground that the order is not ture to unsettle the settled law, so that it can be set final, with costs—In re Sanderson Bros., Steel Comtled over again. And the judicial construction of paly; J. J. Parkhurst and another, respondents, v. these Codes will be contained in hundreds of volumes Lucius Gleason and others, appellants.—To file new of new reports, which you may perhaps edit, and undertaking. Ordered that the appellant within ten which the profession will certainly have to buy. Aud
days file and serve a new undertaking on the appeal in the “ordinary business man wont understand the
the form and manner reguired by the Code, and that law as well as he does now, and will pay more money in default thereof the appeal be dismissed-James to be told. And this is what you call “making the law
Mahon, Jr., respondent, v. John Noon, appellaut.simp and cheap!
To advance cause on calendar. Motion to advance deYours sorrowfully,
nied. Motion to intervene granted so as to allow attorneys in the second suit to submit points on the ar
gument of this appeal-John G. Smith, appellant, v. ANSWERS TO “AN INTERESTING INQUIRY.” Thomas Boyd and others, respondents.—To recall Editor of the Albany Law Journal :
remittitur for correction; denied, without costs-EdThe correct legal method of computing time for the ward J. Woolsey, appellant, v. Jobu R. Morris and purpose of calculating interest is prescribed by Rev. another, respondents.--For reargument. Denied on Stat. Pt. 2, ch. 1, tit. 3, $$ 9, 10. See also Pt. 1, ch. 19, the ground that there was evidence to justify a fiuding tit. 1, $$ 3, 1.
of the fact that the first board of audit passed upon PETER E. FONTES.
the pierits. Ten dollars costs in one case-Teunis P.
Osterhoudt, etc., respondent, v. Thomas Hyland and Erlilor of the Albany Law Journal:
others, appellants; Samo v. Cornelius Brackett and Interest is by the year, and the year is legally ascer others; Same v. ()wen Trodden and others; Same v. tained to be 365 days.
Butler and others; Same v. Murphy and another.If“Inquirer's ” language is to be taken strictly, his
For reargument. Denied with costs—In re several ac“from ” and “to” settle the question, and the com
countings of executors of William Tilden, deceased; putation on the first note is 141 days; but if the dates
Ezra Acer, appellant, v. Levi Hotchkiss, respondent; given are the dates of the notes, and March 19, 1885, their due date (the last day of grace), then the day of the
Thomas F. Baker and another, appellants, v. Levi date is excluded, and the last day of grace is included
llotchkiss, respondent. -To place cause ou calendar and the computation for the first note is 1:15 days. for day certain. Denied on the ground that this is an
The division of time into months affects the question appeal from an order, and can be put on the calendar of what day the note becomes clue, but leaves the in
upon any motion day, without costs-In re guardianterest to be computed for the number of days the
ship of L. W. Valentine. money is used. The debtor who undertakes to pay in so many months takes notico that some months are shorter than others, but he is not obliged to pay interest for thirty days of a month which has only twenty-eight.
PROTECTION AFFORDED BY CONSULS. Editor of the Ibuny Law Journal:
With your consent I will occupy sufficient space to ask what is meant by the frequent statements in the newspapers, during tho recent difficulty in Central America, that American merchants placed their property under the protection of their consul. To the best of my knowledge and belief, an American citizen who engages in trade in Guatemala, becomes for all civil purposes stamped with the character of a citizen of Guatemala, and in caso of war between Guatemala and any other Stato, his property would be liable to seizure. Am I not correct? Yours respectfully,
B. ROCHESTER, N. Y., «lpr. 14, 1885.
The Legal Intelligencer pronounces
“the cross-examination of Guiteau by John K. Porter, of New York, the finest specimen of the art, in print, with which we are familiar." We concur.--Mr. Edward J. Phelps, who has beeu nominated minister to Great Britain by the president of the United States, is known to English lawyers as having been in association with the late Mr. William A. Beach, counsel against the English company in the case of the Emma Mining Co. v. Parke, tried in New York in 1877. Mr. Beach, who died last June, was eminent for his powerful advocacy in jury cases, while Mr. Phelps' powers lie rather in equity cases, and he is distinguished for his knowledge of law, his subtlety in argument, and the refinement of his style of speaking. Mr. Phelps comes of a good New England family, and has, socially, a reputation for wit, besides other engaging qualities, so that his arrival may be looked upon as another importation of geniality flavored with sal Transatlanticum which his predecessors have made so popular in England.-London Law Journal,
The Albany Law Journal.
W on of
the suit is substantially against the State. Mr. Justice Bradley says: “The officers have no power but
what the State gives them. They act for and on ALBANY, MAY 2, 1885.
behalf of the State, and in no other way. To sue
them therefore because they will not receive the CURRENT TOPICS.
coupons in payment, is virtually to sue the State. The sole object is to coerce the State. To say other
wise is to talk only for effect, without regard to the E call especial attention to Mr. IIayes' commu
truth of things.
It is said that the gov
ernment does not represent the State when it does imprisonment for debt. Mr. Titus' bill now pend
an unconstitutional act or passes an unconstitutional ing in our State Senate for the abolition of this
law. While this may be averred when the governremedy has been passed four times by the Senate in
ment of a State attempts to force the State from its former sessions, and has uniformly failed in the lower
constitutional relations with the United States, and house for want of attention. The bill ought to
to produco a disruption of the fundamental bonds pass. We have more than once urged it, and never
of the national compact, and while in such a case it have heard a voice raised against it. There is no
may be aılmissible to say that the government of reason in morals or justice or policy why a man
the State has exercised a usurped authority, this should be incarcerated because another man bas
mode of speech is not admissible in ordinary cases chosen to trust him for a greater amount than he
of legislation and public auministration. It also can pay. Especially unjust is the state of the law
tends to sedition by inculcating the doctrine that in which the debtor may be perpetually imprisoned,
the government may be treated and resisted as a as is possible in this State, as Mr. Isayes points out.
usurpation whenever the citizen, in the exercise of Penal remedies for civil wrongs are unwise. Frauds
his private judgment, deems its acts to be unconstiand false pretenses may be punished criminally, but
tutional. But then it will be asked, has the citizen criminal remedies should never be used to compel
no redress against the unconstitutional acts or laws the mere collection of debts. This is recognized
of a State! Certainly he has. Whenever his life, in respect to extradition. We earnestly hope that
liberty or property is threatened, assailed or invaded our Legislature will purge our statute book of this by unconstitutional acts, or by an attempt to excabsurdity and injustice at once. We do not hesi
cute unconstitutional laws, he may defend himself in tate to declare our belief that the trusting creditor
every proper way — by haberis corpus, ly defense to is generally as much to blame as the trusted debtor.
prosecutions, by actions brought on his behalf, by inIf the creditor is unwilling or unable to invoke the criminal remedy, let him take the consequences of
junction and by mumdumus.
But all these
means of protection and redress against unconstihis own credulity or carelessness.
tutional operation and exaction are a very different
thing from the right to coerce a State into the fulThe United States Supreme Court have pro
fillment of its contracts. The one is an indefeasible nounced a very important decision in the Virginia right, a right which cannot be taken away; the tax-coupon cases. The decision was against the other is never a right, but may or may not be conState, and in favor of the bondholders on all mate- | ceded by the State, and if conceded, may be conrial points. The court holds that all the legislation ceded on such terms as the State chooses to impose. of the State which attempts to evade the obligation
This is the first time, we believe, since the under which it rests to receive the coupons of its | Eleventh amendment was adopted, that any State bonds in payment of State taxes is unconstitutional has been coerced by judicial proceedings, at the and void, because it impairs the obligation of il suit of in lividuals, in the Federal courts. That contract; that the taxpayer, having once made il this is such a case seems one of the plainest propodue tender of coupons in payment of his taxes, is
sitions that can be uttered.
We have not under no obligation to pay such taxes in money, but thought it necessary or proper to make any remarks may rest securely upon his right to have the coul on the moral aspects of the (alse." We must say pons received when offered, and that a tax collector that it seems to us that the majority stand upon who attempts thereafter to forcibly collect such rather technical reasoning in holding that the suit taxes by levying upon the taxpayer's property is not is not against the State. We are glad as citizens to shielded by the legislation of the State, but makes sco a State helil to its contracts, but as lawyers we the attempt at his personal peril. The court holds find difficulty in construing this suit to be other furthermore, that it suit brought against a tax col than one against the State. At all events, this dislector for seizure of a taxpayer's property, after due sent is a very formidable one -- it is an instance tender of coupons, is not a suit against the State, where the tail seems almost strong enough to wag but is a suit against in individual trespasser acting the dog. without the legal authority of the State. The opinion was delivered by Mr. Justice Matthews. The The late Earl Cairns, who died on the ed ultimo, chief justice and Justices Bradley, Miller and Gray was twice lord chancellor, a Tory in politics, an dissented — Justice Bradley delivering the dissent Irishman by birth, a lawyer of strong and grave taling opinion. The dissent was on the ground that ents, but not of brilliancy. Lord Coleridge said
Vol. 31 – No. 18.
nature of the case are not aware of the great pub IN 1886, 19 rep. 510, it was held that the pro
of him, in the House of Lords: “Lord Cairns had extent and accuracy of his reading, and the correcta mind powerful enough to throw light and order ness of his literary judgment. Lord Cairns, I dare into the most intricate and complicated facts, while say, was a man who did not readily give his heart. he could unweave the subtlest web of argument; He certainly seemed of a somewhat reserved manand yet he never wasted time or words, but grasped ner, but when he gave his heart at all he gave it more firmly than most men the subjects with which thoroughly. Twice it has come under my own obhe had to deal.” His lordship also gave the follow- servation that he had a serious difference with a ing reminiscences, some of which will be peculiarly man inferior to himself in every respect, and on interesting to Americans: “It chanced from cir- both those occasions it was Lord Cairns who first cumstances with which I need not trouble your lord came forward with a frank admission of mistake, ships, that when I was chief justice of the Common and with an earnest desire to continue the friendPleas Lord Cairns often consulted me as to judicial ship, which was not only touching and honorable, appointments which he had to fill, and which had but which showed that he was as good and as genbeen usually filled by members of the common law erous as he was great and commanding. As long bar, with whom in the nature of things he could as I live I shall be proud to think that I could call not have had much acquaintance. I do not suggest my friend the great man we have lost.” that he always took my advice. Lord Cairns was too great a man, he had too independent a mind, We acknowledge the courtesy of Mr. Albert not to rely in the last resort upon his own judg- Matthews in sending us two pamphlets against codiment. He used the judgment of other men as ma fication “The Civil Code in California," by John terials to form his own. But this I may say, as Norton Pomeroy, and “The Definitions of Obligathose who knew him best must know, that he was tion, Property and Contract, in the Proposed Civil always guided by the severest integrity, and always | Code,” by J. Bleecker Miller. No man 18 more animated by a single-minded desire to do his duty open to conviction on this sulyject than ourself, but as he understood it. It might be said that by we would “like to see the man " who can convince those on both sides who disposed of judicial ap us that we are wrong. pointments, politics have for many years been disregarded, but any one acquainted with public affairs must know that it is not an easy thing to re
NOTES OF CASES. sist the importunities of men who perhaps from the
Belo v. Wren, , , lic mischief that is done by incompetent persons acting in a judicial position. I may venture to say ceedings of a legislative committee, empowered to that Lord Cairns paid marked disregard to the im- collect and perpetuate evidence of a criminative portunity of such men, and would not appoint any character, which are merely preliminary, and conone whom he did not believe to be fully compe- ducted cx parte and in secret, are not privileged. tent. In one case I suggested to him to fill a judi- The court said: “The public are not regarded as cial position one whose competence no one who having such an interest in proceedings embodying knew him would venture to deny, and he declined defamatory matter as will outweigh the necessity to appoint him. I may speak of the case now with for protecting the character of individuals, unless out risk of doing any harm. I suggested that the they are proceedings of a legislative or judicial late Mr. Benjamin should be appointed to the bench character. Cooley Const. Lim. 558; Townshend
a man whom I was anxious to have seen among Sland. and Libel, 411; Sanford v. Bennett, 24 N. Y. the judges of England, and who to my knowledge 20. This rule includes within itself proceedings of would have felt himself honored by being placed a quasi judicial character, i. e., before a body havamong them.
But Lori Cairns refused to considering the power to hear and determine matters subhis claims, and he refused on grounds which I can mitted to its jurisdiction by the voluntary consent not help admitting were at the time urgent and of its members. Cooley Const. Lim. 448, and note. forcible, and would by most men be held to be con It is only on account of this judicial character that clusive. I am sure that in not appointing that eni- its proceedings are protected, and to give it such a nent person Lord Cairns acted against his own character it must have authority not only to hear, wishes, and on the purest and most patriotic mo but to decide the matters coming before it, or to tives. There is one other matter to which I will redress grievances of which it takes cognizance. allude. I have seen it stated where in other re Burrows V. Bell, 7 Gray, 301. But to be privileged spects ample justice was done him --- that Lord the proceeding must have been not only judicial Cairns was cold and ungenial in manner, and that or legislative, but it must not have been prelimihe had very little or no sense of humor. That was nary, ex parte, and secretly conducted.
Flood not my experience. I do not pretend to the honor Libel, 244; Townshend Sland. and Libel, $ 231; of his intimacy, but I can say from what I knew of | McCabe v. Cuuliwell, 18 Abb. Pr. 377; McBee v. him, that I always found him most cheerful and | Fulton, 47 Md. 403; S. C., 28 Am. Rep. 465. amusing, and there were few men who had a keener There may be cases where a preliminary or ex part: sense of humor. His literary and classical acquire proceeding would be privileged, but as to this we ments I often had occasion to admire, us also the do not decide; but when to these two conditions iż