Imágenes de páginas
PDF
EPUB
[ocr errors]

OBITER DICTA.

COURT OF APPEALS ABSTRACT. Serjeant Wilde, afterward Lord Truro, was an early

NEGLIGENCE. riser. Frequently he would drive to his chambers, in

1. Duty of city officials: when city liable for overflow of his carriage, by five o'clock, on a winter's morning,

sewers. — The plaintiffs were damaged by the overflow prior to his going to Westminster Hall.

into their premises of a sewer, maintained by the city

of Syracuse. The overflow was caused by an obstrucWitnesses in divorce suits are apt to “take up”

tion in the sewer, composed of fallen bricks and street with one side or the other, and stretch their testimony

dirt. By the charter of the city it is the duty of the accordingly. In a late case, one witness was persistent

mayor and common council to open and repair sewers. in saying that the wife had a very retaliating dispo- Held, that the finding of a neglect of duty on the part sition—that she retaliated for every little thing. “Did

of the city officials is essential to plaintiffs' case. That you ever see her husband kiss her?” asked the wife's

no case has gone so far as to hold that there is an absocounsel. 'Yes, sir; often.” “Well, what did she do

lute undertaking on the part of the corporation, on such occasions?” “She always retaliated, sir!”

that their constructions shall at all times be in proper

conditions, or to hold the city responsible without We have often laughed at the brilliant exclamation some wrongful act or negligent omission on its part. of somebody, in addressing a jury: “Gentlemen, the McCarthy v. City of Syracuse. Opinion by Rapallo, J. chimney took fire; it poured forth volumes of smoke 2. But the mere absence of notice to the city officials volumes, did I say? Whole encyclopædias!” But we

of the obstruction of a sewer does not absolve the never before had heard it attributed to any particular city from the charge of negligence. It is its duty to individual. It seems the gentleman was a Mr. Mar keep the sewers in repair, and this involves a degree of ryatt, a former practitioner at the Old Bailey sessions,

watchfulness in ascertaining their condition, from and afterward queen's counsel. He was called a great time to time, and preventing them from becoming case lawyer. He declared that he never opened any

obstructed, and the omission to make examinations and book, after he left school, but a law book. Very likely.

to keep the sewers clear is a neglect of duty which Not a dictionary, certainly!

renders the city liable. Ib.

3. The excavation by the plaintiffs of the area under

their sidewalk was lawful, and they were not bound to A man was arrested in Louisville, Ky., a short time

leave the earth there as a protection against a possible ago, charged with the novel, yet heinous, offense of

overflow of the same. Ib. stealing the tails of two cows. The articles in question were found in the premises of the accused, and, as they

PRACTICE. were in a detached state, with no animated milk fac

1. Partition suit: not allowable when defendant holds tories upon the premises, to which they might be use

lands adversely. To maintain an action for the partiful, he was taken into custody and brought before a

tion of lands, the plaintiff must, at the time of the magistrate. The justice was a man of the world - of

commencement of the action, have an actual or conthe agricultural and rural world – knew a trifle about

structive possession in common with the defendants farming - was acquainted with a thing or two in the

of the land sought to be partitioned. Florencev. Hopway of live stock, besides law calf. With consummate

kins. Opinion by Rapallo, J. shrewdness, he therefore ordered the “fly brushes "

2. A subsisting adverse possession is a bar to the acto be taken to the cows, to see if they fitted.” Cir

tion. It is intended for the partition of lands in the cumstantial evidence was too much for the prisoner,

possession of part owners, and not for the recovery of and he was committed on the charge of larceny.

lands held adversely. Ib.

3. The defendant in her answer set up a claim to the At a jury trial, recently, in Minnesota, the judge whole of the lands sought to be partitioned, and proved asked the usual questions before proceeding with a a subsisting adverse provision at the time of the comcase, whether any gentleman of the panel was disqual mencement of the action for partition. Held, that ified by interest, or otherwise, from sitting as a juror. the action could not be maintained. Ib. No one replied that he was. Plaintiff's counsel, who 4. Appeal from general term: not allowed when judgwas a thin, hatchet-faced, dyspeptic-looking individual, ment has been reversed on questions of fact.-In a case rather tartly challenged one man, and had him re tried before a jury where the judgment has been removed. This obstacle to perfect justice having been versed, and a new trial granted upon questions of fact, surmounted, things were beginning to proceed pleas- and the proceedings have been regular, an appeal will antly, when a tall, broad-shouldered fellow, with a not lie to this court. Wright v. Hunter. Opinion by look of infinite good humor in his face, got up slowly | Rapallo, J. and asked to be excused.

5. This case which had been tried by a jury was reg“Why?” said his honor.

ularly before the general term for review as well upon “Well, judge,” was the reply, “I don't think I can the facts as the law. The evidence was such as to jusbe impartial in this suit. I really don't. You see, I tify a reversal upon the facts. The opinion of the court, believe I am prejudiced against one of the lawyers after reviewing the evidence and expressly approving there."

of the rulings of the judge at the trial, stated, that the “Ah! how's that?” inquired the court, in a lively error was not of the judge but of the jury, and a new way.

trial was granted. Held, that the failure of the defend“Why, the fact is, I am prejudiced against the coun ant to obtain an entry of the grounds of decision on sel for the plaintiff. I never saw the man before to-day, the judgment of reversal is no reason for depriving but I'm afraid I should go against him on general him of a new trial, and that an appeal to this court principles, from the way he looks.”

should be dismissed. Ib. The conscientious juror was allowed to step down. 6. Appeal from order of general term. - An order

66

made at general term reversing the order of a special term absolutely, granting no new trial cannot regularly be appealed from as an order. The proper mode of reviewing it is to cause judgment of reversal to be perfected and to appeal from that judgment. Mehl v. Vander Walbeke. Opinion by Rapallo, J.

SHERIFF.

1. When liable for escape: releasing prisoner under void order.-In order to justify a sheriff in releasing a person imprisoned for debt, upon the orders of a county court, it must be shown that the court had jurisdiction of the parties to the controversy upon whom the orders were to operate, or that the orders were on their face such as the court could make for his guidance. Bullymore v. Cooper. Opinion by Folger, J.

2. But if the orders do not state facts, which if existing gave general and special jurisdiction, they will not per se protect the sheriff. Ib.

3. In order to give the county court jurisdiction under 2 R. S. 32, $S 1, 2, 3, 4, 5, 6 the requirements of the statute must be fully complied with, and the failure to indorse the affidavit required by section five will debar the court of jurisdiction. Not only a petition but a verified petition is necessary. Ib.

4. An allegation in the petition of the debtor that he has been declared a bankrupt, under the United States bankrupt law, and that an assignee has been appointed, etc., does not satisfy the requirement of the statute that there shall be an account of the estate of the petitioner. Ib.

5. The defendant, a sheriff, released one F. A., debtor in his custody, upon an order of the county court. Held, that the order not showing jurisdiction, and the court having failed to obtain jurisdiction of the proceedings for F.'s discharge, the defendant was liable for an escape. Ib.

real estate in New York, by the law of this State. White v. American Colonization Society and others. Opinion by Grover, J.

2. That one of the societies (The Southern Aid Society), being a voluntary unincorporated association until the time of the testator's death, could not take a devise under the law of this State. Ib.

3. To constitute a conversion of real estate into personal, under a trust, in the absence of an actual sale, it must be made the duty of the trustees to sell it in any event. A mere discretion to sell produces no such result ; and the Southern Aid Society could take no interest under a power to sell. Ib.

4. Another of the societies named (The American Colonization Society) was incorporated under the laws of Maryland, and had under these laws authority to take lands by devise. Held, that this did not give it the power to take lands by devise in this State. That the word statute in section 3 of the Statute of Wills (2 R. S. 57), refers to a statute of New York only. Ib.

5. That another of the societies (The American Tract Society), having no power to take lands by devise at the time of the testator's death, could not by subsequent legislative act be enabled to take under the void devise. The property not effectually disposed of by the will vested in the heirs, and cannot be taken from them by legislative act and bestowed on others.

6. That the property undisposed of by reason of the inability of the devisees to take, vested in the heir of the testator (who was his daughter) at his death, and upon such heir's death, went to her heirs, and those who would have been heirs of the testator, had he survived the daughter, had no right to it. Ib.

STATUTES.

1. Construction of: legislative power as to public works. — The act of April 12, 1865, prohibiting the construction of any drain or sewer in the city of New York, unless such sewer or drain shall be in accordance with a general plan, etc., applies where proposals for the work had been advertised, and bids opened before the passage of such act. Petition of Protestant Episcopal Public School et al. Opinion by Rapallo, J.

2. Even if the opening of the bids gave a vested right such contract would not deprive the legislature of the power to prohibit the construction of the sewer. The power of the legislature to regulate the manner of doing public works cannot be foreclosed by the contract of a municipal corporation. Ib.

PROMISSORY NOTE FRAUDULENT IN ITS

INCEPTION.

HAMILTON V. VOUGHT.* 1. A note fraudulent in its inception cannot be invalidated in the hands of a party taking it for value, before maturity, unless actual fraud can be shown in such party so taking it. 2. That such note was taken under suspicious circumstances

will not avail to defeat it, unless such circumstances are

sufficient to prove mala fides in the holder of the paper. 3. Mere carelessness in taking such note will not, of itself,

impair the title; bnt carelessness may be so gross that bad faith may be inferred from it.

Case certified from the Sussex circuit court.

Hamilton & McCarter for the plaintiff.

Coult & Pitney for the defendant.

WILL.

BEASLEY, Ch. J. We have presented to our consid1. Power of corporation to take under; effect of void eration, in this case, but a single question, viz. : bequest. — The testator, residing in Connecticut, dis Whether the title of a holder of negotiable paper, acposed by will, of real and personal property, situate in quired before it was due, for valuable consideration, is this State. After giving certain legacies, the seventh affected by the fraud of a prior party, without proof of clause gave the residue, real and personal, wherever sit bad faith on the part of such holder. uate, to trustees in fee-simple, upon trusts in favor of At the trial of this cause the jury was instructed that testator's daughter and her children, should she have if the holder of the note sued on — the plaintiff in the any surviving, etc., and, in case of the death of daugh action — acquired his title under circumstances which ter leaving no relative who could take under the will, should have put a person of ordinary prudence on his to pay certain legacies, and then to divide the remain guard, the note was invalid, if its inception had been der between six societies named. The personal estate fraudulent. was more than sufficient to pay all the specific legacies. The verdict was in favor of the defense, and the Held, that the validity of the bequests of personal plaintiff now insists that the judicial instruction should property must be determined by the law of the domicile of the testator, and the validity of the devise of

* Supreme Court of New Jersey.

have been that suspicious circumstances attending the acquisition of his title was not sufficient to defeat his claim, unless of a character to raise a conviction of actual fraud on his part.

Counsel who so ably argued this case in behalf of the defendant did not deny that the modern English authorities were hostile to their position, but they went upon the ground that the rule thus sanctioned was an innovation, and consequently would not be followed by this court. The ancient rule, it was maintained, is that declared in Gill v. Cubitt, 3 Barn. & Cress. 466. This decision was made in the year 1824, and, beyond all question, it sustains the principle now claimed by the defense, for, in the reported case referred to, the jury were explicitly told that “there were two questions for their consideration: first, whether the plaintiff had given value for the bill, of which there could be no doubt ; and, secondly, whether he took it under circumstances which ought to have excited the suspicions of a prudent and careful man." The authority is directly in point, and the only question which can arise is, whether it correctly states the ancient rule of the common law upon the subject.

My first remark in this connection is, that, from the opinion of the judges in the case of Gill v. Cubitt, it appears that the doctrine adopted was intended to be an innovation upon the antecedent practice, and that it was avowedly opposed to a decision of the greatest weight. Twenty-three years before, in the year 1801, Lord Kenyon, in Lawson v. Weston, 4 Esp. 56, had expressly repudiated the idea that suspicious circumstances, in the absence of actual fraud, would avoid a note in the hands of a holder for value. But this doctrine did not harmonize with the views of the judge in the case of Gill v. Cubitt, and it was accordingly overruled. Thus, Chief Justice Abbott says, in his opinion: “I think the sooner it is known that the case of Lawson v. Weston is doubted, at least by this court, the better. I wish doubts had been cast on that case at an earlier time.” And he concludes: “For these reasons, notwithstanding all the unfeigned reverence I feel for every thing that fell from Lord Kenyon, by whom Lawson v. Weston was decided, I cannot think that the view taken by that learned lord was a correct one.” Nor is this rejection of this antecedent decision attempted, in the slightest degree, to be put upon the foundation of pre-existing authority; not a case is referred to for its justification, and although in Lawson v. Weston the authority of Lord Mansfield, in Miller v. Race, was mooted, no remark is made on that circumstance. I think a perusal of the opinions in Gill v. Cubitt will satisfy any one that it was a well understood intention to deviate from the legal rule upon this subject which had previously existed; or, if any doubt should remain, such doubt will certainly be dispelled by a reference to the case of Slater v. West, 3 Carr. & Payne, 325, decided in the year 1828, in which Chief Justice Abbott (then Lord Tenterden), in laying down the doctrine that a person is not entitled to recover who takes a bill of exchange “under circumstances which ought to excite suspicion in the mind of a reasonable man, says: “This doctrine is of modern origin. I believe I was the first judge who decided this point at nisi prius. The court to which I belong confirmed my decision, and the other courts have, I believe, acted on the same principle.” And Chief Justice Bayley, in his opinion in Gill v. Cubitt, is equally explicit. “But it is said ” — such is his language

“that the question usually submitted for the consideration of the jury, in cases of this description, up to the period of time at which my lord chief justice's direction was given, has been whether the bill was taken bona fide, and whether a valuable consideration was given for it. I admit that has generally been the case." From these citations, I think it is manifest that the judges who participated in the decision of the case of Gill v. Cubitt were aware that, by the views expressed by them, they introduced a novelty, and departed from the older practice of the courts. That the principle adopted in that case was an innovation seems to me unquestionable. I have shown that it is irreconcilable with Lawson v. Weston. So it plainly occupies the same relation to the case of Peacock v. Rhodes, Doug. 632, decided by Lord Mansfield in 1781. The rule which it endeavors to overthrow will be found sustained in Miller v. Race, 1 Burr. 452; Price v. Neal, 3 id. 1355; Grant v. Vaughan, id. 1516; Anonymous, 1 Ld. Raym. 138; Morris v. Lee, 2 id. 1396. There was not a case cited upon the argument, nor have my researches led me to one, anterior to the decision of Gill v. Cubitt, which sustains the doctrine there propounded. I confidently conclude, therefore, that the case above criticised cannot stand ou the ground of ancient authority, In my apprehension, the original rule, as it existed in the time of Lords Kenyon and Mansfield, was that nothing short of mala fides would vitiate the title of the holder of negotiable paper, taking it for value before maturity. It is entirely out of the question, therefore, for this court to regard Gill v. Cubitt as imperative authority. It is true that that case was followed for a time, to a considerable extent, by the English courts. But, as I have already said, in England the original rule has been re-instated. In Backhouse v. Harrison, 5 B. & Ad. 1098, Mr. Justice Patterson says: “I have no hesitation in saying that the doctrine first laid down in Gill v. Cubitt, and acted upon in other cases, has gone too far, and ought to be restricted.” And in Goodman v. Harvey, 4 Ad. & El. 870, Lord Denman thus forcibly expresses tbe rule at present prevailing in the courts at Westminster : “The question I offered to submit to the jury was, whether the plaintiff had been guilty of gross negligence or not. I believe we are all of opinion that gross negligence only would not be a sufficient answer where the party has given consideration for the bill. Gross negligence may be evidence of mala fides, but it is not the same thing. We have shaken off the last remnant of the contrary doctrine. Where the bill has passed to the plaintiff without any proof of bad faith in him, there is no objection to his title. The following cases recognize and enforce the same rule: Uther v. Rich, 10 Ad. & El. 784; Artbouin v. Anderson, 1 Ad. & El. (N. S.) 498; Stephens v. Foster, 1 Cromp., Mees. & Ros. 894; Palmer v. Richards, 1 Eng. L. & Eq. 529; Marston v. Allen, 8 Mees. & Wels. 494; Raphael v. Bank of England, 17 C. B. 161.

An examination of the American reports will disclose a similar mutation of judicial opinion upon this subject. For a time, in several of the States, the rule broached in the case of Gill v. Cubitt has been acted upon; but now, in most of them, and in those of the most commercial importance, that rule has been entirely discarded. Magee v. Badger, 34 N. Y. 247; Bel. Bank of Ohio v. Hoge et al., 7 Bosw. 543; Worcester, etc., Bank v. Dorchester, etc., Bank, 10 Cush. 488; Matthews v. Poythress, 9 Ga. 387; Ellicott v. Martin, 6 Md. 509; Crosby v. Grant, 36 N. H. 273.

The subject has also recently been settled, after an the case of May v. Chapman, 16 Mees. & W. 355, Baron elaborate discussion and full consideration in the Parke

says : “I agree that ‘notice and knowledge' supreme court of the United States, in the case of means not merely express notice, but knowledge or Goodman v. Simonds, 20 How. 343, the result being an the means of knowledge, to which the party willfully explicit repudiation of the doctrine that suspicious shuts his eyes.” Reviewed in this sense, as I have circumstances will, per se, vitiate the title to commer already remarked, the principle seems to me to be a cial paper.

highly salutary one, and, in the language of Professor From this brief review of the cases, I think it may Parsons, is well “adapted to the free circulation of be safely said, that the doctrine introduced by Lord negotiable paper and the true interests of trade.” 1 Tenterden stands at the present moment marked with Pars. B. & N. 259. the disapproval of the highest judicial authority. Nor I think a new trial should be granted. does such disapproval rest upon merely speculative Scudder and Van Syckel, JJ., concurred. grounds. That doctrine was put in practice for a course of years, and it was thus, from experience, found to be inconsistent with true commercial policy. Its defect

ENGLISH JUDGES, - a great defect, as I think – was, that it provided The judges can tell odd stories of going circuits. The nothing like a criterion on which a verdict was to be functionaries, and sometimes even the prisoners, are based. The rule was that, to defeat the note, circum much disgusted if instead of a Westminster judge they stances must be shown of so suspicious a character that have to deal with some counsel whose name has been they would put a man of ordinary prudence on inquiry; included in the commission. A prisoner for murder and, by force of such a rule, it is obvious, every case was greatly annoyed because he had to be tried by a possessed of unusual incidents would, of necessity, pass “journeyman judge.” A sheriff once told a judge under the uncontrolled discretion of a jury. An inci that they had been “often jobbed off with sergeants dent of the transaction from which any suspicion could instead of judges in those parts, and was he really a arise was sufficient to take the case out of the control bona fide judge ?” Having had his mind satisfied on of the court. There was no judicial standard by which this point, the sheriff gracefully took his place by the suspicious circumstances could be measured before side of the judge on the back seat, but was politely committing them to the jury. And it is precisely this informed by the judge that etiquette required that he want which the modern rule supplies. When mala should sit opposite. Once a judge complimentary told fides is the point of inquiry, suspicious circumstances a mayor that he presided over an ancient city. “Yes, must be of a substantial character; and if such circum my lord,” was the answer, “it always was an ancient stances do not appear, the court can arrest the inquiry. city.” We expect that it was the same gentleman who Under the former practice, circumstances of slight expressed a hope that Mrs. Judge and all the little suspicion would take the case to the jury; under the Judges were well. A sheriff asked a judge at a circuit present rule, the circumstances must be strong, so that dinner whether he had gone to see the elephant in the bad faith can be reasonably inferred. Thus the sub last place. “Why no, Mr. High Sheriff," he replied, ject has passed from the indefinite to the compara “I cannot say that I did, for a little difficulty occurred; tively definite; from the intangible to the compara we both came into the town in form, with the trumpet tively tangible. From a mere matter of fact, the sounding before us, and there was a point of ceremony question, to some extent, has become one of law. I to be settled which should visit first.” cannot doubt, when we recollect that inquiries of this There have been judges who have acquired certain nature always attend that class of cases where judg little tricks and peculiarities of manner. This is rather ments are sought against innocent and unfortunate a drawback to a judge. It is always especially necesparties, that the change is most beneficial. All expe sary that there should be no trick of temper; that he rience has shown how hard it is to prevent juries from be not a

A peculiarity which is said to have seizing on the slightest circumstance, to avoid giving a belonged to several judges is that of speaking aloud. verdict against the maker of a note which had been There are two very awkward habits against which abobtained by fraud or theft. To preserve the negotia sent-minded men should guard —soliloquizing aloud bility of commercial paper, and guard the interests of when they walk, and walking when they are asleep. trade, it is absolutely necessary that large power should Some absurd stories have been told of judges thinkbe placed in the judicial hand when the question arises ing aloud. The following story is told by one of the as to what facts are sufficient to defeat the claim of the registrars of the court of chancery of a great chancelholder of a note or bill which has been taken before lor: “A barrister, whom he had not previously heard, maturity, and for which value has been paid. It is was retained to argue before him. The counsel was a only in this mode that the requisite stability in trans man of ability, but began in a very confused, blunderactious of this kind can be retained. But I do not ing manner. Lord Chancellor: “What a fool the think the difference between the two rules above dis man is!” After a while he got more cool and colcussed is as great as some persons have supposed. In lected. Lord Chancellor: “Ah! not such a fool as I my apprehension, the entire variance consists in the thought.” Finally, he quite recovered himself, and degree of proof which the court will require in order proceeded admirably. Lord Chancellor: “Egad! it to submit the inquiry to the jury. Mere carelessness in is I that was the fool.” It is a worse fault of a judge taking the paper will not, of itself, impair the title so when he is supposed to be too much under the influence acquired; but carelessness may be so gross that bad of some counsel. Thus, Sir Fletcher Norton was nofaith may be inferred from it. Nor is it necessary, in toriously a terror to the bench in his day. Lord Mansorder to defeat the title of the holder, that he have field was thought to favor unduly men who, like himactual knowledge of the facts and circumstances con self, had been to Westminster and Christ Church, stituting the particular fraud; it is sufficient if he have The great Lord Tenterden was supposed to be fascinknowledge that the paper is tainted with any fraud, ated, like the juries, by Scarlett-the Mr. Subtle of although he may be ignorant of the nature of it. In “Ten Thousand a Year,'' – to whom he had often

roarer.”

been a junior. Lord Westbury, when Mr. Bethell of was named after him— "The Vice-Chancellor.” Althe bar, had an extraordinary influence with some most as soon as a case was opened he decided against a judges, and also awoke extraordinary antagonisms. plaintiff or a defendant, and never thoroughly heard it

But the worst faults a judge can have is a short through. It was wondered what he would find to do temper. We have in our mind's eye a learned judge after he had cleared his list off. “Do! why, he will and most excellent man, whose court was sometimes hear the other side," was the acute answer. This was, no better than a bear garden, through his unfortunate indeed, an egregious exampleif the facts stated of defect of temper and judgment. There was one judge him are true, and they are stated by Lord Kingsdown; who had a trick of checking witnesses when they got on such a judge himself deserved the penalty of a crimtoo fast for his notes by saying, “Stay, stay.” He was inal. It is always worth while for barristers carecalled the old staymaker. Ofttimes they show admira fully to attend to the slightest indication of judicial ble temper and discretion. A judge who was summing opinion. I remember a case in an equity court in which up a case was greatly disturbed by a young counsel who the buying and selling of some living was concerned. was talking aloud. With great benignity he said, “Mr. When the case had made some progress the judge Gray, if you ever arrive here, which some of these quietly observed, “Does Simon Magnus appear at all days I hope you will do, you will know the incon in the action?” The counsel at once told the solicitor venience of counsel talking while you are summing up.” that the judge evidently looked upon the transaction A curious story is told illustrating the legal precision of as one of simony, and the case was forthwith witha great judge. He asked a magistrate on a circuit din drawn. ner whether he would take some venison. The gentle But sometimes it is impossible to say in which way man aswered, “Thank you, my lord, I am going to the opinion of the judge leans. My own opinion is take boiled chicken. Lord Tenterden retorted, that, that they have not been at the trouble of forming an sir, is no answer to my question; I ask you again if you opinion. Charles Dickens has hit this off — as he hits will take venison, and I will thank you to answer yes or off every thing — capitally: “Mr. Justice Stoneleigh no, without further prevarication.” The story was summed up in the old-established and most approved originally told in the Quarterly Review, but it is chal form. He read as much of his notes to the jury as he lenged by Lord Campbell.

could decipher on so short a notice, and made running Another unfortunate characteristic of some judges comments on the evidence as he went along. If Mrs. is the extreme promptness with which they make up Bardell were right it was perfectly clear that Mr. Picktheir minds and take a side on a case. There is a sub wick was wrong, and if they thought the evidence of tle atmosphere which soon tells the advocate whether Mrs. Cluppins worthy of credence, they would believe the court is with him or whether he has to fight the it, and if they didn't, why they wouldn't.” If some up-bill game of a losing cause. Counsel often watch, judges are anxious to guide the jury, others are anxwith extreme anxiety, even trivial utterances of the ious to evade the responsibility. They must save themjudges which may indicate the direction of their mind. selves a great deal of wear and tear. Still, in many The most upright and impartial judges who endeavor cases, provincial juries are so crassly stupid that they to keep their judgment perfectly balanced, are liable, require to be guided unless there should be continual human nature being what it is, certainly, and perhaps miscarriage of justice. One remedy would be that a insensibly, to take a side. I believe they have left it large proportion of the cases now tried by juries should on record that when a case has been fairly opened, and be summarily disposed of by judges. Another remedy the testimony was given clearly, honestly and in a would be that there should be a large infusion of the pleasing way, they made up their minds on one side grand jury element in the petty jury. Cases are oz before they heard the other. Mr. Grote discusses this record in which judges have confessed themselves missubject in one of the admirable notes to his immortal taken. One judge, thinking that he had caused an inhistory. Wise judges watch against this tendency, justice to be done which it was beyond his power to and are able to conquer it. Still, in the case of any rectify, left the injured person a large sum of money protracted trial it is easy to see on which side the in his will. It is said that the case of Lord Cochrane, judge's opinions rest, and even his sympathies. With afterward Earl of Dundonald, almost broke the heart some judges the habit of advocacy has grown so and hastened the resignation and death of Lord Elleninveterate that they are quite unable to lay it aside. borough. That great man and most upright magistrate If ever they have seriously tried they have not suc had conceived a political prejudice against Lord Cochceeded in the attempt. The case has even been rane, and summed up violently against him. He afterknown of a judge on the bench thundering like an ward saw good reason to believe that he had been misadvocate at Nisi Prius. A judge once said that he had taken in his facts, and had been too harsh in his senonly lost two verdicts since he had been raised to the tence. London Society. bench. What one likes to see in a judge is a quiet, vigilant watchfulness; the alert eye, the unwearying hand, the thoughtful, composed manner. I have seen cases where, except to the initiated, the judge seemed It is pleasing to know of Lord Mansfield, that after little more than a passive spectator for a considerable he had retired he delighted to talk over every importportion of the case — but he would have interfered at ant case of the day with a certain barrister, who, in any moment — and when his proper time came he turn, became a great judge. Lord Mansfield was very showed how complete had been his proper grasp of the kind to the bar. When his court sat very late on one case, and how acute his attention to all details. An occasion, he addressed the counsel, “gentlemen, as you able judge once said, “Nobody knows how much have lost your dinners you had better come and dine energy it requires in a judge to hold his tongue.” The with me.” Judges are very good in asking young barmost conspicuous example of an intellectual failure in risters of their acquaintances to dinner, but such bonfairness was Sir John Leach. He delighted to gallop hommie as Lord Mansfield's it would be hard to find through his cases. He was so fast that a stage coach now.

« AnteriorContinuar »