Snydacker v. Broose, 51 Ill. 357; Abbott v. Kimball, 19 Vt. 551: Welsh v. Cochran, 63 N. Y. 181; Hyde v. Cooper, 26 Vt. 552. In the case last cited, Redfield, C. J., in rendering the opinion of the court, said: "When the party does not direct or control the course of the officer, but requires him to proceed at the peril, and the officer makes a mistake of law in judging of his official duty, whereby he becomes a trespasser even by relation, the party is not affected by it, even when he receives money, which is the result of such irregularity, although he was aware of the course pursued by the officer. He is not liable, unless he consents to the officer's course, or subsequently adopts it." There is an entire absence of competent testimony in this case to show that the plaintiff in error authorized, or had knowledge of, any improper conduct of the officer, if there was any, and, therefore, nothing upon which to base a verdict against him for damages for any trespass then committed. Before he can be so held, it must appear (1) that there was such an abuse of the process, by the constable, as to make him a trespasser, and to forfeit all protection which his writ otherwise would give; and (2) that plaintiff in error either directed or counseled such wrongful conduct, or thereafter consented thereto by accepting the benefits resulting therefrom, with full knowledge of the facts. The instructions which were given by the court at the special instances of the defendant in error, ignored these principles, which lie at the foundation of the liability of the plaintiff in error, and are erroneous. ance of justice and would prevent many of the difficulties and dangers of the charge of the trial judge which now exist. But we protest that an exception should be taken by either party after the trial in a reasonable time and to specific parts of the charge of the judge, not to the charge in general, for we cannot and do not consider that any practice which will materially increase the work of the appellate courts is desirable, and it is most important that there should be less matter come up before the appellate court and that appeals should be restricted. It is very easy for the practitioner to form a short bill of exceptions, after the trial, to the charge of the judge, though we consider that either party should be allowed to except at the time of the trial before the case goes to the jury as well as to make requests to charge which are most proper for the just trial of any cause. It is, therefore, with great pleasure that we recommend the suggestions of Mr. Spahn in so far as they allow exceptions to be taken to specific parts of the judge's charge during the time allowed for an appeal. Last During the last few weeks two judges have recommended changes which, on account of the importance of the reforms and the distinguished character and great learning of the judges, entitle them to profound consideration and respect from the bar. week we had occasion to comment on the case of the People v. Shea, which was recently decided by the Court of Appeals. Judge Peckham, who has had wide experience as an active practitioner, trial judge, and as a member of the court of last resort, calls the attention of the public as well as of the bar to the unfortunate, unnecessary, unreasonable and improper rules of practice which allow a mass of worthless facts and immaterial testimony to come before the appellate court of last resort. The great care which the judges of the Court of Appeals take with their opinions and with their work, and the literary quality of the opinions, not to speak of their great legal worth, are too well-known to here comment upon. Does it not seem ridiculous and like loading a faithful public servant down to send before him for review ten thousand printed folios embracing two thousand printed pages of record, exclu sive of some three hundred pages of questions tion. Limit the right of review. Terminate put to jurymen, which came before the court all review in one appellate court. Reverse the in the case of the People v. Shea? There has rule of decision in appellate courts, and instead been so much said within the last year and a of assuming that injury was done, if error is half in regard to limiting appeals to the shown, require the party complaining of a judgcourt of last resort that we really believed ment or decree, to show affirmatively not that some practical benefit would accrue to the merely that some error was committed in the court. But, seemingly, this relief to the court trial court, but also that if that error had not has disappeared in the vociferous flagellations of been committed the result must necessarily have the discordant notes of code reformers. Some- been different. It may be said that this would thing should be done; but it is most humiliating make reversals very difficult to obtain. They to the bar that the suggestion should have to come should be difficult. The end of litigation should from the judges of the court that must be relieved. be almost always in the trial court. Business It is most proper that every benefit should be acmen understand that it is best that the deciscorded to a man who is accused of murder, but ions of their committees of arbitration should from a practical standpoint we think it is almost be final and without any review. While some prejudicial to the accused to go before the court of our profession seem to think that justice is of last resort, with such an unwiedly mass of abmore likely to be secured, if by repeated resolute nothingness. A few well chosen points, views in successive courts, even to the highest such as exceptions to the charge of the trial in the nation, the fees of counsel can be made judge, the admission of testimony which can be to equal, if not exceed, the amount in controeasily picked out and attacked, and which are versy between the clients. In criminal cases clearly fixed in the mind of the counsel for de- there should be no appeal. I say it with refense, would practically give the court a better lutance, but the truth is that you can trust a opportunity to judge of the merits of the case, jury to do justice to the accused with more while it would be absolutely impossible for the safety than you can an appellate court to secure minds of any court to comprehend such a mass protection to the public by the speedy punishof testimony as we have referred to. But these ment of a criminal. To guard against any possuggestions of Judge Peckham do not stand sible wrong to an accused, a board of review alone as the only reminder to the members of and pardons might be created, with power to our profession that our procedure is not in acset aside a conviction or reduce the punishcord with business principles. It has been a ment, if on the full record it appears not that a favorite theory of this journal that too many technical error has been committed, but that appeals involve unnecessary delay, which is most the defendant is not guilty, or has been excessprejudicial to the rights of suitors. Reforms ively punished. cannot proceed along business lines without comprehending the broad principles of the law. Judge Brewer, of the United States Supreme Court, in his address to the American Bar Association, most clearly discussed this subject, and said: "The administration of justice would soon be considered a mockery if first impressions controlled every case. But greater expedition can be obtained without detracting from fullest examination and consideration. Shorten the time of process. Curtail the right of continuWhen once a case has been commenced, deny to every other court the right to interfere or take jurisdiction of any matter that can be ances. "The truth of it is, brethren, that in our desire to perfect a system of administration, one which shall finally extract from confused masses of facts and fiction the absolute and ultimate verities, we forget that tardy justice is often gross injustice. We are putting too heavy burdens on our clients, as well as exhausting the patience of the public. Better an occasional blunder on the part of a jury or a justice of the peace, than the habit of protracted litigation. "The idea of home rule and local self-government is growing in favor. Thoughtful men more and more see that the wise thing is to cast upon each community full responsibility for the management of its local affairs, and that brought by either party into the pending litiga- | the great danger to free government is in the centralization of power. Is it not in line with this thought that as far as possible the final settlement of all controversies which are in themselves local shall be by the immediate friends and neighbors of the litigants? Was not that the underlying thought of the jury as first established? And while we boast that the jury system is the great bulwark of our liberties, are we not in danger of undermining its strength and impairing its influence by the freedom of appeal? Is not the implication therein that the jury and the trial judge cannot be trusted, and is not the sense of responsibility taken away from both when they understand that no matter what they may decide, some superior and supposed wiser tribunal is going to review their decisions and correct whatever of mistakes they may make?'' We publish in this issue of the LAW JOURNAL an article written by Hon. Horatio Seymour, Jr., formerly State engineer and surveyor, one of the most earnest advocates of the improvement of the canal provided for in the bill to be submitted in the form of a referendum at the next election. Mr. Seymour was formerly State engineer and surveyor, and although this plan was first originally suggested by the late Samuel J. Tilden, it has since been taken up and warmly advocated by Mr. Seymour, who at present resides at Marquette, Mich. It can readily be seen that he is anxious still for the success of the canal improvement project. Although the subject is not strictly legal, yet it involves important interests which are akin to our profession, and we must for a moment turn aside from the strict consideration of legal principles to the consideration of vital interests of the State and country. After the adjournment of the American Bar Association at Detroit, the Rev. Lyman Abbott, successor to the Rev. Henry Ward Beecher as pastor of Plymouth Church, delivered before the members of the Association a most interesting and cultured address. In giving his definition of law, he said: " as old as Plato. The nation is an individual The different forces that administer to the corporate individual were eloquently cited. The man whose body is fed and whose intellect is brightened is unavailing unless he has a definite purpose and pursues that purpose with definite resolution. It is the same with the nation if it means to accomplish anything. The nation is what its executed laws are - no more, no higher, no better. The Not long ago the Populists in Kansas decided not to have any more lawyers in the Legislature. More than fifty per cent. of the legislators in Congress have been lawyers. It ought so to be. They are fitted to shape the national will, to give it definite resolve. We need continuous sessions of the law. The legislature represents the superficial will of the people, the whims of partisan feeling or prejudice. courts are to represent the deeper purpose of the nation. They understand and interpret the trend of national life. By way of illustration, the great waterways of the nation were given to the nation, the great railways were subject to federal jurisdiction and protection, the great lakes are also under federal jurisdiction. No act of the Legislature has produced the effect of Lincoln's signing the document that set slaves free. The hand of the people held the pen. The lawyer is not merely one to settle disputes or to prevent them. Beyond is the function he performs in the American commonwealth. He converts creed into deed. We are measured by what we do far more than by what we think. Deed is the measure of the creed. The threads out of which the pattern is to be woven are living threads. The lawyer works them into the national fabric. Blackstone is right; there is an analogy between laws of nature and laws of jurisprudence. Laws of right and wrong exist; they are. Webster said it was useless to re-enact the laws of God. The comparison of the nation to the individual is | temporary and the human laws will not stand Law is not a command addressed from a superior to an inferior. It is the corporate will of the nation addressed to the individual. A i T 1 opposed to divine principle. Deep in the heart are written the principles of truth, justice, honor. It is not true we want dishonest money; we want honest money; and the question is, What is honest money? The education of the lawyer can not be too broad or too deep. The great principles of our national jurisprudence run back to the time of the great Mosaic period. The lawyer must discern the principles of social life. He must trace the trend of history to see what the future holds. The religions of the world are two classes. Pagan religions picture God as an angry God. The Hebrews showed He was a just God. Then came the belief that He was a merciful God. Our prisons are reformatory. It is ours to present the highest ideals, said the speaker, referring to his own calling. The function of the minister is to hold up the highest pictures. It is the duty of the lawyer to shape the aspiration into a living, determined and powerful resolution. In the English letter to the Green Bag appears a most comprehensive distinction between solicitors and barristers, a subject which is rather hazy and uncertain to many Americans. It appears that the distinction is gradually disappearing from various causes, and especially for the reason that English practice is coming more and more to allow the solicitors to practice in some of the inferior courts, while barristers in many instances have done away with the services of solicitors in the arrangement of the case and the preparation of evidence in the cause. The letter is well worth printing, and is as follows: The line which divides the barrister from the solicitor in the English practice is so shadowy in some respects, although so distinct in others, that it is hardly to be wondered at that confusion exists on the subject in America. In fact there are a good many professional men in England who would be puzzled to know where the function of the solicitor stops and the practice of the barrister begins. An American who was recently called to the bar desired to retain a copy of a letter on private and personal business, which, therefore, he had taken pains to write in copying ink. He handed it, with a letter-press copying book, to the clerk of his chambers. The latter under-. stood that a copy was required, but he failed to see what the copying book had to do with it. At last, when it dawned upon him, he said, with much disdain: I am sorry, sir, but there is no copying press in the temple. Solicitors take letter-press copies of their letters, but barristers have their opinions written out in fair hand." In other words, the clerk plainly intimated that barristers had no connection with business, that was an affair of solicitors only. He was, in the main, correct. Solicitors do what in America is known as “chamber work." They see the client, and act for him in every possible way, performing services in this respect which an American lawyer would never dream of consenting to do, and charging therefore feee of “six-and-eight pence" and "thirteen-and-four pence," and other small sums which would be too trivial to figure on the books of your lawyers, as well as larger and more imposing amounts. And now, of recent years, they are encroaching upon the preserves of the barrister to an extent which is most alarming to the latter. They may appear as advocates in the county courts and before referees, masters and judges in chambers. In the county courts they don a gown and wear bands at the neck, and, but for the absence of the wig, would pass in appearance for the barristers. In almost every respect, except in high court work, they are taking the places of those who are popularly spoken of as belonging to the “upper branch" of the profession. But the barrister has exclusively the right of audience in the higher courts. In addition to this he is called upon by the solicitors to "settle" the pleadings, that is to say, to draft them; and to pass upon all the formalities in a case which is the subject-matter of litigation up to the point where issue is joined. He is also "instructed "to give an opinion upon evidence and such technical questions of law as may arise. This he is supposed to do only upon a “brief” submitted to him by a solicitor. But, fortunately for him, and as a set-off to the encroachments upon his functions by the solicitor, he is now beginning to see the lay client directly, and not solely, as heretofore, through the intervention of the solicitor. When Sir Richard Webster was attorney-general sometime ago, and therefore the leader of the bar and the custodian of its prerogatives, he decided that a barrister might advise a layman in all matters which were not in litigation or likely to result immediately in litigation. It cannot be said in truth that in consequence of this clients are tumbling over each other in their mad eagerness to get access to the sacred precincts of a barrister's chambers; but it is true that more and more, each year, consultations are being held with those who seek legal advice, and opinions are being written without the intermediary of solicitors' briefs. Just now both branches of the profession are agitated over matters which affect them most closely. The lord chancellor has brought in a bill to create the office of legal trustee. At present there is no such office. Trustees act independently of all control, and are only answerable, in case of breach of trusts, to their cestuis que trust, who must apply to the Chancery Courts for relief. Most of the trustees are solicitors, and all of them serve without compensation. documents. It is feared that if an official trustee is appointed he will not allow these charges, and in consequence there will be so much the less business to do. The argument in favor of the official trustee is based upon the fact that he will be an officer of the court and that he will be obliged to give a bond and will be compelled to report at stated intervals to the court the result of his transactions. It is urged that the irresponsibility of trustees under the present system encourages malversations and misappropriations of money. The other day five solicitors were struck off the rolls for wrong-doing. Lord Halsbury, now again the Lord Chancellor, says that no less than seventyseven solicitors were disqualified during his last administration as Lord Chancellor, and that, in his opinion, the number of breaches by trustees which never come to light is enormous. On the other hand it is claimed that, as there are more than 15,000 solicitors on the rolls, the proportion of those who are dishonest to the entire number is infinitesimally small. Where the matter would have ended cannot be safely predicted, but it will be hung off for a while, as the recent change in government will suspend legislation on the subject for some time to come. The matter which has interested the other branch of the profession, the bar, concerns its domestic or internal management. A large majority of the barristers, particularly the younger members, are desirous of forming an organization for the purpose of directing, controlling and governing their own affairs; and to this end a general council of the bar was formed. But it cannot get on without funds, and the barristers who before being called are obliged to pay large sums to the already wealthy bodies which are known as the Inns of Court, naturally object to put their hands in their pockets to provide these funds. There are four Inns of Court - the Middle Temple, the Inner Temple, Lincoln'sinn and Gray's-inn. Conjointly they have a revenue approximating $500,000 a year. Their affairs are administered by a board of governors or managers or trustees, called "Benchers." They make no report of their income or their expenditures. Of course, they are men of integrity and high character, and no one questions the honesty of the administration of the The idea of fees or commissions is abhorrent to the English courts, and they are never allowed. It is sometimes the case that when solicitors are appointed the instrument creating the trust provides that they shall be allowed to charge for such work as they may professionally perform, but otherwise even such services receive no compensation. Notwithstanding this rule the solicitors make money out of trusts and trustees. A trustee is not simply the holder of a legal title or the administrator of a fund. He is a family friend and confidant, a representative of a deceased father, or a grantor of a marriage settlement. He sympathises with the beneficiary of the trust-but he takes no step without consulting the solictor, and the solictor permits no consultation without entering up a charge for it. An aggrieved party stated in one of the newspapers a few days ago that the appointment of an additional trustee of his estate, although there was no opposition, and the proceedings were of the friendliest character, had cost a little over £80. In other words, nearly $400 had been expended in "consultations,” “conferences,” “ visits,” "instructions," and the "fair copying" of formal | funds they handle. There is simply the feel |
