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CHIEF JI'STICE ERLE.
between the parties to it, and it has often been held these rights of a railroad corporation, owing to the that the Legislature cannot make a contract be- nature of its business, is the right to make reasontween two or more persons, which they do not able contracts; and in interfering with this right, choose to make. Hence, I should say that this the Legislature must act within the limits of its statute is unconstitutional under the Federal, Con- police power, respect all constitutional modificastitution, because it infringes the constitutional pro- tions, and ever keep in view the object of civil govvision against impairing the obligation of contracts, ernment as represented by that body. since the State, by the charter which it granted to
HENRY L. HARRINGTON. the corporation, contracts to give it the same rights which are given natural persons in carrying on the
THE BUILDERS OF OUR LAW DURING same business for which the corporation is char
QUEEN VICTORIA'S REIGN. tered to carry on.
. One might argue against this that the Legislature, The night that Burns was born the cottage which although it has not the power to make contracts for the corporation, might impose duties which can be
down by a storm. “No wonder," said the poet enforced as if they arose from contract. Even
afterwards, "that one ushered into the world amidst though we may concede this to be true, it cannot be denied but that these duties must be imposed by sions." Erle – the future chief justice of the com
such a tempest should be the victim of stormy pasthe Legislature itself, and not by a third person;
mon pleas was ushered into the world amid a which, by this statute, would be any other railroad within the State. It is one of the first princi- mightier tempest, the storm of the Great French
Revolution: ples of constitutional law that a Legislature cannot
When France in wrath her giant limbs upreared, delegate its authority to any other body or to any
And with an oath that shook earth, sky, and sea, person. This body, in whom has been entrusted
Stamped her strong foot and said, “I will be free.'' the power of judgment and discretion, cannot relieve itself of the responsibility of this power by malign influence over his life or nature.
But the lurid star of Erle's nativity exercisedl no
His life choosing other agencies to execute its power; nor
was gentle, and the elements in him most happily can it substitute the judgment, wisdom and discre
and graciously mixed. All the red star of revolution of any other body for those to which alone the
tion did was to make Erle a mild but consistent people have seen fit to confide this sovereign trust.
liberal, a liberal who sat through one session of RECAPITULATION.
parliament silent like Gibbon, and voted steadily To conclude, it may be said that unless the Con- with his party. Gibbon used to explain his silence stitution of the United States or of the State ex
as a senator by saying that “the bad speakers in pressly prohibits the passage of regulative laws, the house filled him with terror, the good ones with general in character, as applicable to these railroad
despair." corporations, the power is necessarily vested in the
Perhaps Erle had the same feeling. He was not Legislatures of the several States.
gifted with eloquence – indeed, he had a slight imAll contract rights are subject to State regula- pediment in his speech – nor did he, though a distion, as are property rights, and although a railroad tinguished scholar at Winchester and New College, corporation has a charter not subject to amend-show any particular brilliancy when he first joined ment or repeal by the Legislature, it takes it, never
the Western Circuit. He attended, it is said, several theless, subject to such changes as may be made in
assizes and sessions without picking up a stray brief. the general laws and Constitution, unless as to the
But he had what was better than brilliancy, thoroughsubject-matter involved, the charter constitutes a contract exempting the corporation from the opera- declamatory, but strikingly argumentative, plain
He was painstaking, he was tenacious, never tion of such legislation.
and homely in his style, thinking, like old Fuller, The company, in conducting its business under
that “the plainest words are the profitablest oratory the charter, must conform to such rules and regula
in weightiest matters." tions as the State may establish for the safety and
Self-reverence, self-knowledge, self-control, protection of those being carried by or having
These three alone lead life to sovereign power transactions with it. These regulations must have reference to the comfort, safety or welfare of so
And these Erle bad. He conquered the impediment ciety, and they must not injure the property rights in bis speech by a self-imposed habit of distinct of the corporation, lawfully obtained from or while enunciation, and the only trace of the defect remainacting under the charter. The most essential of ing in after life was a certain deliberateness of de
livery, a . measured emphasis of utterance.” He Cooley's Const. Lim. 137.
schooled his temper, too, as well as his tongue.
“ Pray, Mr. Kenyon, keep your temper," said Lord and his dealing with it illustrated what I bave said Mansfield. * Your Lordship," said Mr. Cowper, about his want of knowledge of the ways of the who sat by, “had better recommend Mr. Kenyon to world. It was an action arising out of the sale of part with it altogether." Erle parted with his. It a horse for which my client had given 300 guineas. is no secret that naturally his feelings were strong, It was a magnificent-looking animal, and had been but he for a long course of years kept them under shown off by a very pretty girl before it was purstern restraint, and so effectually that no one can chased. The horse was a screw, and the whole remember any outbreak. He rightly considered affair a plant. The chief justice was indignant at that nothing could be more unforensic or more un
He could see nothing to justify the judicial than ill-temper. The result of all was that imputations I had made, and so he summed up. he became a very acute and able advocate; indeed, The jury, however, with very little hesitation found the late Lord Chief Justice once stated that, in his in favor of my client. I met Erle leaving the court. opinion, the finest advocate of his time was Sir He was greatly vexed at the verdict, and could not William Erle. Serjeant Davy used to say that the understand it. I told him that the parties probamore he went the Western Circuit the more he bly were known to the jury, but I cannot help thinkunderstood how the wise men came from the East, ing that he felt his power and influence were wanbut in Erle's time this jibe would have fallen flat, ing. His predecessor, Sir John Jervis, would have .for Follett and Crowder and Wilde were among the seen through the whole fraud in a moment.” leaders of the circuit, and among these, able and He had a quiet sense of humor, and much relbrilliant as they were, Erle gradually came to the ished a joke. Once a counsel apologized for a sally front, though his rise was anything but meteoric. of wit which set the court laughing. Erle did not
He was sixteen years before he obtained a silk have the laughter “instantly suppressed,” or the gown from Lord Brougham, and it was ten years court cleared. On the contrary, he said: more before he was appointed a judge of the Com-court is very much obliged to any learned gentlemon Pleas. It is significant how entirely he owed man who beguiles the tedium of a legal argument his advancement to his professional merits, and not with a little honest hilarity.” A scene once octo his political pretensions, that he received his ap- curred in court which must liave been not a little pointment from a Tory Chancellor, Lord Lyndhurst. conducive to bilarity, but whether it was hilarity It was one of those excellent appointments which which the chief justice shared may be doubted. Campbell jestingly told Lord Lyndhurst at a dinner | It was in a case tried at Bodmin, in 1855. There at Mr. Justice Patterson's would “ cover the multi- was a deaf juryınan. He said nothing about his tude of bis sins."
infirmity, and it was only when the judge had By the unanimous suffrage of the whole legal | finished his sumining up that it was discovered profession a better judge than Sir William Erle that the juryman had not heard a word of the never sat on the bench combining in the highest recapitulation of the evidence. The result was degree learning, diligence, patience, and courtesy. that Erle had to repeat the whole of his summing His impartiality and his single-eyed desire for jus- up for the benefit of the exasperating juryman: tice inspired in the bar and in the public a confidence Needless to say he was then discharged. Apropos which many judges of more striking and original of juries, some of his opinions given before a partalents have failed to secure. A writer in one of liamentary committee on our jury system are worth the quarterlies described Erle, J., as the best of our noting. Imprimis, he thought that jurors ought to judges on the common law bench “bating a little be paid by the day, on a scale which would at least obstinacy." This so-called obstinacy was the one pay their expenses, and afford some indemnity for flaw in Erle's judicial characier; it generally is, of loss of time. He also thought that nine or seven a strong judge like Erle -- it goes along with mas- jurors should be sworn instead of twelve. Hear culine sense and decision. Such men are not given him on the “hardships" of jurymen: " When I to nicely balancing opposite views like philosophers have heard great complaints by jurors I have said: or casuists, nor was Chief Justice Erle. He was emi- ' If it is so repulsive to you I will discharge you at nently practical. He never delivered a judgment once, and tell the sheriff never to allow you to or charge in which he did not allude to practical serve again on a jury as long as you live,' but I experience or rest on practical views. Serjeant Bal- have never found anyone ready to accept that conlantine says that he put too much faith in outside dition.” Would that formula answer now? Alas! respectability, and was almost as weak as for the degeneracy of public spirit, we much fear juries in cases where injuries were alleged to have the condition would be promptly closed with. On been inflicted upon women. If he did it was a fail the proposal for a property qualification for jurors, ing which leaned to virtue's side. "I was coun- he remarked epigrammatically: “ The bounty of sel,” says the serjeant, “in the last cause he tried, I Providence in giving a man sound judgment does
not depend on the soundness of the roof over his profession. Our homage,” he went on to say, “is hend."
due, and is paid not only to the dignity of the The chief justice was one of those who “do good judge, but the worth of the man,” Jiis simplicity by stealth and blush to find it fame.” “He was," and elevation of character, his private and social says Ballantine, "a man of great benevolence, and virtues, his kindness and his courtesy. It was, inI have heard many anecdotes illustrative of his deed—to use the words of one who was present on kindness of heart, and one example happened to the occasion—a touching scepe to see the hero of a come within my own knowledge. He was presid- bundred forensic pitched battles, the tried and ing in the civil court at Northampton, and was tested athlete of the legal arena, the judge who had obliged to direct a jury against some poor people presided over so many a well-fought contest, who who had been scandalously but legally swindled. had so gently, yet so strictly, kept counsel, witTo them the result was absolute ruin. On the nesses and public in order for twenty years; who following morning an elderly gentleman on horse- had known so well how to maintain judicial dig. back made his appearance in the alley where the nity, yet who had ever been ready to enliven the sufferers resided. This was Sir William Erle. He tedium of protracted inquiries and long-drawn disgave them some very good advice, and with it a putations with the sallies of a dry and quiet humor, sum of money that replaced them in their old posi- now when he came to bid farewell to his colleagues tion."
and to those who had practised before him, as nerSergeant Robinson adds his testimony:
vous and almost as overcome as if he were a junior I applied,” he says, “ to the Chief Justice Erle to holding a maiden brief before a court of quarter recommend me to the cbancellor he wrote me a
sessions. very kind letter, stating that his relations with the
Cincinnatus laid aside the fasces to till his farm. chancellor were so strained, that he had come to From and after his retirement, Sir William Erle the resolution not to make any further applications passed his time chiefly in the country, following the to him of any kind. He said he was very sorry to life of a country gentleman, fond of his tenantry, refuse me, but he could not submit to the rebuffs his horses, his dogs and his cattle, and dispensing he had received from Lord Westbury on more than with a peculiar charm the hospitalities and charione occasion. However, in less than a fortnight, I ties of a Hampshire squire, at Bramshott, near Lipreceived from him another note saying that he had
hook and Haslemere.
“Senesco non segnesco" thought over my application, and did not think I was his motto, and, like Dyer, he would say: ought to suffer on account of any private grievances
Be full, ye courts, be great who will, of his own, and that he would, at all events, make
Search for peace with all your skill; an exception in my favor. Anyone acquainted with
Open wide the lofty door,
Seek her on the marble floor. the chief justice would recognize this plen as thor
In vain you search, she is not there. oughly illustrative of his character.
In vain ye search the domes of care. mendation was given, and 1 shortly afterwards
Grass and flowers quiet treads obtained the coif."
On the meads and mountain heads. No finer tribute could be paid to any judge than He might often be seen in the lanes about his that wbich was paid to the chief justice, on his re- neighborhood, dressed in a loose country coat, knee tirement in 1866, by Sir John Rolt, the then attor- | breeches and gaiters, fondling his dogs, and caressney-general: “ My Lord,” he said. “ we all feel and ing his cart horses, who, on their part, seemed quite desire to acknowledge that under your presidency at home with him. He was not a sportsman - inin this court the great judicial duty of reconciling, deed, it is said that he would not allow either birds as, far as may be, positive law with moral justice or beasts on his estate to be killed — but he was a has been satisfied. The letter of the law which thorough typical English gentleman, with a fine, kills, and the mere discretion of the judge, which honest nature and fine, manly tastes and pursuits. has been well said to be the law of the tyrant, have | All this you could read in his open and genial counbeen alike kept in proper and due respect. Learn- tenance, so full at once of good sense and good huing, great experience of affairs, wise administra- mor, of shrewdness and kindness. In fact, few men tion, have been so combined that, with the assist
were ever more truly beloved than Chief Justice Erle, ance of the eminent judges associated with you on either in their homes or in general. that bench, the laws of England have been exhib- He sometimes, however, attended the sittings of ited in their true aspect as the exponents of the the Privy Council. Westbury, says Serjeant Robinrights and duties of our citizens and the guardians son, once remarked to Chief Justice Erle, after the of their liberties. The Court of Common Pleas, latter's retirement, “I wish, Erle, you would someunder your presidency, my lord, bas obtained the times come into the Privy Council and relieve me highest confidence of the suitor, the public, and the I from my onerous duties there, for we can't get on without three, and there is no one else I can apply mon law of England, but there is such a thing as to."
contributory negligence on the part of the guest Erle said he would willingly come, but he was which will exonerate the innkeeper from liability. getting a little deaf, and was afraid that might in- Arnistead v. Wilde (17 Ad. & Ell. 261) is an interfere with his power of doing full justice.
stance. There a traveler for a firm ostentatiously “Not at all, my dear fellow,” said Westbury. showed a large sum of money in the presence of “Of my two usual colleagues, is as deaf as a several persons, and then openly put it in an illpost and hears nothing, is so stupid that he secured box, which he left in the travellers' room, can understand nothing he hears, and yet we three and the innkeeper was held not responsible for a together make an admirable court."
loss. It is not even necessary, semble, that the “Human life,” he says, in his admirable little negligence should be gross. Ex parte Death (18 treatise on Trade Unions, “is a progress between Ad. & El. 647) decided an important point of Unitwo sets of physical and moral agencies perpetually versity discipline, viz., that the governing body of striving against each other; one on the side of a university may lawfully issue a decree that every falsehood, malice, and destruction; the other on the tradesman with whom a person in statu pupillari side of truth, kindness, and health; and the law, if within the university contracts a debt of £5 shall wisely made and properly administered, maintains make the same known to the tutor of such pertruth and kindness and health.” Erle's own life son's college on pain of being discommuned if he was all on the side of truth, kindness and health. omits doing so; and in case of disobedience they
His decisions will be found reported in the later may enforce such decree by ordering that no person volumes of Adolphus and Ellis, in Ellis and Black- in statu pupillari shall deal with the tradesman for a burn, Common Bench Reports, Cox Criminal Re- given period. The law would indeed have been deports and Law Reports Common Pleas, vols. 1 and 2. plorably meddlesome if it had interfered with this
It is very old law that adultery does not bar a wholesome provision against undergraduate exwife's right to dower. Needham v. Bremner (14 travagance in Cambridge. Only why does not L. T. Rep. 437; L. Rep. 1 C. P. 583) is based on the Oxford follow her sister university's example ? same principle. It decides that a verdict finding a Other decisions of Erle's are: That the servant of a wife guilty of adultry does not constitute a defense horsedealer has an implied authority to bind his to an action against the husband for necessaries master by a warranty (Howard v. Sheward, 15 L. supplied to the wife. It does not, like a decree for T. Rep. 183); that a landlord cannot break open dissolution, alter the status of the parties. The the outer door of a stable, though not within the woman still continues the wife of the defendant. curtilage, to levy an ordinary distress for rent The verdict is binding as between the parties to the (Brown v. Glenn, 16 Ad. & Ell. 254); that the suit, but not as against other parties who came to solicitor of a vendor receiving the deposit on a sale litigate the same question. Our law has always is not a stakeholder (Edgell v. Day, 13 L. T. Rep. rigorously enforced the safety of the King's high-328; L. Rep. 1 C. P. 80; cf. Ellis v. Gaulton, 68 L. way to his liege subjects. Hadley v. Taylor (13 T. Rep. 144; (1893) 1 Q. B. 853); that it is not comL. T. Rep. 368; L. Rep. 1 C. P. 53) decides that petent to a company incorporated in the usual way occupiers of premises, warehousemen for instance, for the formation and working of a railway to who leave a hoist hole unfenced, say a cellar flap, draw, accept, or indorse bills of exchange (Batewithin a foot of the highway, are liable if a man man v. Mid Wales Railway Company, L. Rep. 1 C. fall down it. A hole in such close proximity to the P. 499); that a pew in a parish church does not enhighway is a public nuisance, because, though you title the owner to a county vote as a 40s. freeholder cannot recover if you wander into danger from the (Hinde v. Chorleton, 15 L. T. Rep. 472; L. Rep. 2 highway, you ought to be able to step a foot off the C. P. 104); and that a ballot divertissement is not highway without danger.
entertainment of the stage" (Wigan v. Strange, The ravages of rats at sea have much exercised 13 L. T. Rep. 371). the minds of our judges. Kay v. Wheeler (16 L.T. The notorious Jackson case stirred society to its Rep. 66; L. Rep. 2 C. P. 302) is one of the earlier depths. It was stigmatized as subversive of marcases, and it decided that the shipowner is liable riage and domestic life, and the press poured forth for injury done by these “ busy mischievous vermin " “ cataracts of nonsense,” but in truth all that the letting in sea water to the goods, though shipped Jackson case laid down had already been laid down under a bill of lading containing exceptions of long before in Reg. v. Legget (18 Ad. & Ell. 781), “the act of God, the Queen's enemies, fire, and all one of Erle decisions, viz., that where a wife is, by other dangers and accidents of the sea, rivers, and her own desire, living apart from her husband, and navigation, of what kind and nature soever.” is under no restraint, the court will not grant a
Innkeepers are rather hardly pressed by the com- habeas corpus on the application of the husband for
the purpose of restoring her to his custody. The CORPORATION-TREASURER OF CORPORATION. only difference is that in the time of Reg. v. Leg. The treasurer of a manufacturing corporation bas gatt, the ecclesiastical court had still the right to no implied authority to bind a company as an accompel a rebellious wife to return to her allegiance.commodation indorser. (Usher v. Raymond Skate But really we have lately progressed so fast under Co. (Mass. ), 39 N. E. Rep. 416.) the influence of the "new woman" that Jackson's
CUSTOM-EFFECT ON CONTRACT.-A guarantor of case, if decided to-day, would hardly startle us.
the payment of freight bills which may become due In all probability it would be meekly accepted by to a railroad company from a certain slipper is not the deposed lords of creation without a single relieved from any part of his liability because the murmur.-Law Times.
company failed to enforce against such shipper its
custom of collecting its bills weekly. (PhiladelAbstracts of Recent Decisions. phia & R. R. Co. v. Snowden (Penn.), 30 Atl. Rep.
1129.) ADMINISTRATION-ACCOUNTING BY ADMINISTRA
DEED-RESERVATION_RIGHT OF WAY. -A deed TOR.- Where an intestate had pledged in New York collaterals largely exceeding in value the ob- of land which reserves to the grantor a right of ligation for which they were pledged, the adminis-way over part of the land described, conveys to trator in Pennsylvania, who paid off the obliga- the grantee the fee to the whole of the land, includtions out of the general fund, and lifted the ing that part over which the right of way is recollaterals, and sold them, and swelled the general served, subject to the use of such part for the purfund, will not be surcharged with the amount so
pose for which it was reserved. (Moffitt v. Lytle paid. (In re Shinn's Estate (Penn.), 30 Atl. Rep. [Penn.), 30 Atl. Rep. 922.) 1026.)
EASEMENT-CONVEYANCE OF DWELLING.--A water ADMIRALTY-MARITIME SERVICE-WATCHMAN. - pipe leading from a driven well in a yard to a sink The service rendered by a watchman, employed to in the kitchen of a dwelling, there ending in a care for and clean the machinery and maintain a pump, by which water can be and is babitually general care and supervision of a vessel lying at her drawn from the well to the kitchen for domestic liome port, out of commission, and with no voyage purposes, the well and the water pipe being comin contemplation, is not maritime. (Williams v. pletely hidden from view, form an apparent and The Sirius (U. S. D. C., Cal.], 65' Fed. Rep. 226.) continuous easement, which will pass with a con
CARRIERS-INJURIES TO GOODS AFTER REACHING veyance of the dwelling alone by the owrer of both DESTINATION. – Where the seller contracts to de- yard and house, the owner retaining the yard. liver goods “f. o. b." at the place to which they (Larsen v. Peterson (N. J.], 30 Atl. Rep. 1095.) are to be shipped, and pays the freight to such EVIDENCEplace, on the arrival of the boat by which the goods Declarations of a deceased person, claiming ownerare transported at such place the carrier ceases to ship of specific property, are not competent evibe the agent of the seller, and becomes the agent of dence in favor of his administrators, or others the purchaser, and the seller cannot maintain an claiming title under him, whether such declarations action against the carrier for injuries to the goods of ownership were made before or after the title of after such arrival, and before they were unloaded. the adverse claimant commenced. (Crothers' (Capehart v. Furman Farm Imp. Co. [Ala.], 16 Adın'rs v. Crothers (W. Va.], 20 S. E. Rep. 927.) South. Rep. 627.)
FIXTURES—BONA FIDE PURCHASERS.-An innoCONTRACT-ACTION-THIRD
cent purchaser of a building in which machinery contract for sale of land recites that part of the had been placed so as to become a part of the price “is going to one not a party to the con- realty, is not affected by an agreement between his tract, and for whose benefit the contract is not en
vendor and the seller of the machinery, by the tered into, he has no right to sue for a breach of terms of which the latter was to retain the title to such contract. (Crandall v. Payne [111.), 39 N. E. the machinery until it was paid for. (Wentworth Rep. 601.)
v. S. A. Woods Machine Co. (Mass.), 39 N. E. Rep. CONTRACT WITH PARTNERSHIP-DISSOLUTION.- 414.) The fact that, upon the dissolution of a partner- GARNISHMENT— MONEY DEPOSITED.-A treasurer ship, one member assigns to the other his interest of a school district deposited in a bank a draft and in a partnership contract, does not release the other enough cash to make the amount he owed the disparty to the contract from the performance thereof.trict, stating he left it for the treasurer of the (Campbellsville Lumber Co. v. Bradlee [Ky.], 29 S. school district, his successor. The draft was in W. Rep. 313.)
part the proceeds of stock of a third person, re
-DECLARATIONS AS TO OWNERSHIP.