Page images
PDF
EPUB
[blocks in formation]

NEGLIGENCE-CONTRIBUTORY-INFERENCE EITHER WAY-QUESTION FOR JURY.-Plaintiff, who was injured, while sitting upon a stairway leading to a basement, by a block of ice which fell from the shoulder of defendant's servant, who was carrying it down to such basement, and the question of the negligence of said servant in carrying the ice, was properly submitted to the jury. The mere fact that the plaintiff on a hot day left her place of business and sat down upon the stairs near by in the shade to rest, does not authorize us to say as a matter of law that she was guilty of contributory negligence. Murray v. McShane, 52 Md. 217. When facts and circumstances, though undisputed, are ambiguous, and of such a nature that reasonable men, unaffected by bias or prejudice, may disagree as to the inference or conclusion to be drawn from them, then the case should be submitted to the jury. Townley v. Railway Co., 53 Wis. 633; Hill v. Fond du Lac, 56 id. 246; Nelson v. St. Paul, etc., R. Co., 19 N. W. Rep. 53; Abbett v. Railway Co., 30 Minn. 483. It is to be remembered that the servant of the defendants was the active agency, and had full con

trol and management of the cake of ice in question.

This being so, and the accident being such as would not in the ordinary course of things have happened if the servant had been in the exercise of proper care, and in the absence of any evidence tending to show that a piece of the ice broke off while the cake was being carried with ordinary care, we must hold that the jury were authorized to infer, from all the facts and circumstances disclosed, negligence on the part of the servant of the defendants. Scott v. London, etc., Docks Co., 3 Hurl. & C. 596; Kearney v. Railway Co., L. R., 6 Q. B. 759; S. C., 2 Thomp. Neg. 1220; Mullen v. St. John, 57 N. Y. 567; Transportation Co. v. Downer, 11 Wall. 129; Murray v. McShane, supra; Rose v. Stephens, etc., Transp. Co., 11 Fed. Rep. 438; S. C., 13 Rep. 421; Cummings v. National Furnace Co., 18 N. W. Rep. 744. In such case it is hardly accurate to say that negligence is presumed from the mere fact of the injury, but rather that it may be inferred from the facts and circumstances disclosed, in the absence of evidence showing that it occurred without the fault of the defendant. In such case the facts and circumstances speak for themselves, and in the absence of such explanation or disproof, give rise to the inference of negligence. Such a case comes within the principle of res ipsa loquitur. Briggs v. Oliver, 4 Hurl. & C. 407; Carpue v. London, etc., R. Co., 5 Q. B. 751; Cockburn, C. J., and Kelly, C. B., in Kearney v. London, etc., R. Co., supra. Since a jury may draw any legitimate inference from the unqualified and unrestricted facts and circumstances disclosed in the evidence, it follows that they would not be authorized to come to the same conclusion if such inference had been wholly removed by evidence. The case before us is certainly on the border line, and close to the line at that. Kaples v. Orth. Opinion by Cassoday, J. [Decided Nov. 25, 1884.]

CORRESPONDENCE.

RELIEF OF THE COURT OF APPEALS.

Editor of the Albany Law Journal:

Some time ago I was talking with one of the most eminent counsellors in the State on the subject of the relief of the Court of Appeals. To my question what should be done to relieve the court from the pressure

of so much business, he answered: "The remedy is easy. Let the judges do more work." Seeing my surprise, he explained that he did not consider the judges to be lazy, but that they wasted their own time in writing long opinions, and allowed counsel to waste their time with unnecessarily long arguments.

A very limited experience of my own in this court inclines me to the belief that there is much truth in

what the counsellor told me. If you go into the court almost any day you will possibly find one counsel occupying the whole day with his presentation of his side of a single case. More often you will find young counsel arguing cases presenting but a single point, but consuming the whole of their two hours in the argument of that point, laboring over propositions that nobody disputes, and reading long extracts from printed opinions that these same judges have them. selves written, and are perfectly familiar with. The judges listen attentively for about five minutes, or until they are possessed of the point, and then some yawn, or even go to sleep, and the rest look at the clock. All suffer in silence, and permit the speaker to run on with. out question or interruption.

It seems to me (with all due deference to so learned a court) that if the judges would themselves take part in the argument, and stop the speaker when they were

fully possessed of his point, as courts in other juris

dictions do, they would save themselves not only time, but a vast amount of fatigue, for there is nothing so wearing as being bored. If the court should provide by rule that briefs should be filed a reasonable time before the argument, such a rule would be of great assistance to the court.

Then can any one doubt that the judges write too long and too many opinions? No one can read any volume of the Court of Appeals reports without seeing that the judges, instead of declaring what the law is, have wasted time and strength in the vain effort to harmonize all the cases, to reconcile the irreconcilable and to distinguish the undistinguishable. This shows a most laudable conscientiousness on the part of the judges; and if the calendar were smaller no one could complain that they burdened themselves with so much not wholly necessary labor, but when, as at present, delay amounts to a denial of justice, the judges should not attempt to write opinions in so many cases, nor to write such long opinions.

I give you these views of my own for what they are worth. R.

MR. COWEN ON CODIFICATION. Editor of the Albany Law Journal:

Some time ago, I can't exactly recollect when, I saw a newspaper report of a lecture delivered by Mr. David Dudley Field before a New York law school, in which a civil code was, of course, the chief subject of discussion.

If I remember rightly, the main points made by Mr. Field were that the Code would greatly reduce the number of law reports, and would enable the ordinary business man to ascertain the law for himself, without the aid of counsel. Upon the first point I suppose you agree with Mr. Field, because I notice that the LAW JOURNAL most generally does agree with Mr. Field in whatever he has to say upon this subject. But inasmuch as one of your numerous and useful occupations is to edit law reports, which I have to buy, it is possible that we may look at the subject from different points of view, and it is for a few remarks from my point of view that I ask you to indulge me with a lettle space in your excellent journal.

Is it true then that a Civil Code will diminish the

[merged small][ocr errors][ocr errors][ocr errors]

number of law reports? Patrick Henry is reported to have said that we "have no way of judging of the future but by the past." A very small portion of the law of this State that relating to practice - has been codified, and by no less a person than Mr. David Dudley Field himself.

If since the adoption of the Code of Civil Procedure there have been fewer law reports upon the subject of practice than before, Mr. Field has proved his case. If on the contrary such reports have greatly, immensely, increased, it is fair to presume that upon this point at least Mr. Field may be mistaken.

66

What are the facts? Prior to the adoption of the Code of 1848 the State law and equity reports were contained in about 96 volumes, covering the period from 1799 to 1849 or 1850, say fifty years. A few pages in these reports were devoted to civil and criminal practice. I calculate that if we say that the space assigned to cases of civil practice alone was equal to six volumes of the ninety-six, it will be a liberal allowance. No reports were limited to practice cases alone. Many years of legal experience had made the practice familiar to bench and bar, and no such reports were necessary. But in 1848 the Legislature passed the Code of Procedure, in which Mr. David Dudley Field had simplified the rules of practice and had made them certain, so that an ordinary business man "could understand them without difficulty. The result must be extremely gratifying to those who hold with Mr. Field that the multiplication of law reports is an evil. Within the last thirty-five years, aside from the cases of practice in the regular reports-at least three times as numerous as in the preceding fifty years-and taking only the volumes I find in our own library, there have been issued 113 volumes of reports relating to practice alone as against ninety-six volumes of reports upon all subjects prior to 1850. Judging by this instance, which is certainly a fair test, it does not seem to me that Mr. Field's plan for reducing the number of the reports has proved an unmixed success. It has taken an average of over three volumes of reports a year to judicially establish Mr. Field's meaning in a brief statement of the successive steps for enforcing the rights of a party in a court of justice, a very small and comparatively unimportant part of the law of this State. How many will it take when he has collected all the rules govering the numberless relations of an advanced and complex civilization sawed off and stretched out to fit into his Procrustean bed of a Code?

Nor is it true that the proposed Code, or any Code, will render the present reports unnecessary. In all cases the courts will first consider what the law was before the Code was adopted. They will then consider whether or not the Code has change the former rule, and if so, in what respect. Every section, sentence and line will need judicial construction, and a knowledge of the law prior to the Code will be an indispensa ble requisite to such construction. Indeed the only difference between a legal system without a Code, and with one, is this: Without a Code the judges decide what the law is; with a Code the Legislature attempts to state what the law is, and the judges decide what the Legislature meant-in nine cases out of ten the most difficult task of the two.

If you do not agree with me, look at the decisions of the courts construing the "statute of frauds." This subject (the invalidity of contracts not attested by certain formalities) has always been embodied in a Code, and I know of no questions that have been more discussed, or upon which courts have more widely differed, than upon those arising under this statute. "Every special promise] to answer for the debt, default of miscarriage of another person shall be void

unless such agreement, or some note or memorandum thereof expressing the consideration be in writing." Is not the clause above quoted perfectly plain? Would Mr. Field's future expounder of the law, the "ordinary business man," hesitate a moment as to its meaning? A promise to pay the debt of another must be in writing, and the writing must name, mention, or set forth the consideration for the promise. Could any thing be clearer? Yet as a matter of fact no question has been more fiercely disputed in the courts of this State than the meaning of the words, "expressing the consideration." Decision after decision of the Supreme Court and the Court of Appeals diametrically opposed to one another appeared from time to time, and no lawyer in the State could tell with any certainty what they did mean. Finally the Legislature cut the Gordian knot by striking the words out of the Statute.

It is hardly possible that Mr. Field has used language in his Civil Code more plain and distinct than the language I have quoted, and if the Code shall be adopted there will be hundreds and thousands of just such conflicts as to its meaning. The evil would not be so extensive if a Code were ever allowed to remain as settled by the courts.

But the passage of one Code is always an invitation for some one to try his hand at another. In some twenty-five years, by the expenditure of vast sums of money, and the aid of the judicial decisions in the 113 volumes to which I have referred, the Field Code of practice became a most excellent system.

Then an inscrutable Providence raised up Mr. M. H. Throop, who at once applied himself to the grateful task of unsettling the rules of practice, and for the last eight years the courts have been engaged in a desperate and generally unsuccessful attempt at finding out what Mr. Throop meant.

In spite of these considerations, Mr. Editor, the probability is that sooner or later we shall have a Civil Code, aud that it will be Mr. Field's Code.

[ocr errors]

The reason is that with a body like our Legislature, a single strong-willed, persistent, powerfully connected man like Mr. Field, who is willing to spend his time and money for a particular object, is likely to be more influential than all the other members of the bar, busy with their own affairs. The "malice prepense with which Mr. Field, at the age of eighty, "hangs on " to his faculties, apparently for the sole purpose of pushing this Code through the Legislature, is in itself a menace to the peace of mind of the lawyers of the State. I would not shorten his valuable life, or abridge for a single moment his time for repentance (a man who has written half a dozen Codes must have a great deal to repent of), but why, I ask, if he means fairly by the public, does he not show some signs of old age?

Why is it that "his eye is not dimmed, nor his natural force abated?"

"

Why is it that when, according to all the authorities the "grasshopper" ought to be a "burden" to him, no insect lighter than a policeman's "locust' seems able to affect in the least his iron endurance. I cannot repress the melancholy thought, Mr. Editor, that long years from now, when you and I have "gone over to the majority," and the cold marble is recouuting our dubious virtues to an incredulous posterity, Mr. David Dudley Field will be cheerfully celebrating his bundred and twentieth birthday, making speeches before countless committees of the Senate and Assembly, and misleading the callow youth of the profession by lecturing before all our law schools on the virtues of a Civil Code. Against such an adversary the opposing lawyers, who are more or less mortal, and subject to natural decay, bave little chance of success.

I am not a prophet, nor the son of a prophet, but I think I can foretell the result of a Civil Code. Scores of years and millions of money will be spent in the endeavor to ascertain and fix the rules of law so that they shall be as definite and certain as they are now. Then some new codifier, with the same laudable desire to hand his name down to posterity which actuates Mr. Field, will obtain the permission of the Legislature to unsettle the settled law, so that it can be settled over again. And the judicial construction of these Codes will be contained in hundreds of volumes of new reports, which you may perhaps edit, and which the profession will certainly have to buy. And the "ordinary business man" wont understand the law as well as he does now, and will pay more money to be told. And this is what you call "making the law simple and cheap!

[ocr errors]
[blocks in formation]

Editor of the Albany Law Journal:

Interest is by the year, and the year is legally ascertained to be 365 days.

If "Inquirer's" language is to be taken strictly, his "from" and "to" settle the question, and the computation on the first note is 144 days; but if the dates given are the dates of the notes, and March 19, 1885, their due date (the last day of grace), then the day of the date is excluded, and the last day of grace is included and the computation for the first note is 145 days.

The division of time into mouths affects the question of what day the note becomes due, but leaves the interest to be computed for the number of days the money is used. The debtor who undertakes to pay in so many months takes notice that some mouths are shorter than others, but he is not obliged to pay interest for thirty days of a month which has only twenty-eight.

BUSINESS.

PROTECTION AFFORDED BY CONSULS. Editor of the Albany Law Journal:

With your consent I will occupy sufficient space to ask what is meant by the frequent statements in the newspapers, during the 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 case of war between Guatemala and any other State, his property. would be liable to seizure. Am I not correct?

Yours respectfully, ROCHESTER, N. Y., Apr. 14, 1885.

THE

COURT OF APPEALS DECISIONS.

B.

HE following decisions were handed down Tuesday, April 21, 1885:

Judgment affirmed, with costs-Samuel Tolles, respondent, v. W. Stanard Wood and others, appellants.

-Order affirmed, with costs-People ex rel. Mary N. Townshend, respondent, v. Artemas S. Cady, appellant; People ex rel. German-American Loan & Trust Co., appellants, v. Samuel Richards, respondent; In re Petition of John Kennedy to vacation, etc.—Appeal dismissed on the ground that the order is not final, with costs-In re Sanderson Bros., Steel Company; J. J. Parkhurst and another, respondents, v. Lucius Gleason and others, appellants. To file new undertaking. Ordered that the appellant within ten days file and serve a new undertaking on the appeal in the form and mauner reguired by the Code, and that in default thereof the appeal be dismissed-James Mahon, Jr., respondent, v. John Noon, appellaut.To advance cause on calendar. Motion to advance denied. Motion to intervene granted so as to allow attorneys in the second suit to submit points on the argument of this appeal-John G. Smith, appellant, v. Thomas Boyd and others, respondents. To recall remittitur for correction; denied, without costs-Edward J. Woolsey, appellant, v. John R. Morris and another, respondents.--For reargument. Denied on the ground that there was evidence to justify a finding of the fact that the first board of audit passed upon the merits. Ten dollars costs in one case-Teunis P. Osterhoudt, etc., respondent, v. Thomas Hyland and others, appellants; Same v. Cornelius Brackett and others; Same v. Owen Trodden and others; Same v. Butler and others; Same v. Murphy and another.For reargument. Denied with costs-In re several accountings of executors of William Tilden, deceased; Ezra Acer, appellant, v. Levi Hotchkiss, respondent; Thomas F. Baker and another, appellants, v. Levi Hotchkiss, respondent.- -To place cause on calendar for day certain. Denied on the ground that this is an appeal from au order, and can be put on the calendar upon any motion day, without costs-In re guardianship of L. W. Valentine.

NOTES.

"the cros8-ex

The Legal Intelligencer pronounces amination 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 been 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,

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

The Albany Law Journal.

ALBANY, MAY 2, 1885.

CURRENT TOPICS.

E call especial attention to Mr. Hayes' commu

WE call attention to on the subject of

imprisonment for debt. Mr. Titus' bill now pending in our State Senate for the abolition of this remedy has been passed four times by the Senate in former sessions, and has uniformly failed in the lower house for want of attention. The bill ought to pass. We have more than once urged it, and never have heard a voice raised against it. There is no reason in morals or justice or policy why a man should be incarcerated because another man has chosen to trust him for a greater amount than he can pay. Especially unjust is the state of the law in which the debtor may be perpetually imprisoned, as is possible in this State, as Mr. Hayes points out. Penal remedies for civil wrongs are unwise. Frauds and false pretenses may be punished criminally, but criminal remedies should never be used to compel the mere collection of debts. This is recognized in respect to extradition. We earnestly hope that our Legislature will purge our statute book of this absurdity and injustice at once. We do not hesitate to declare our belief that the trusting creditor is generally as much to blame as the trusted debtor. If the creditor is unwilling or unable to invoke the criminal remedy, let him take the consequences of his own credulity or carelessness.

The United States Supreme Court have pronounced a very important decision in the Virginia tax-coupon cases. The decision was against the State, and in favor of the bondholders on all material points. The court holds that all the legislation of the State which attempts to evade the obligation under which it rests to receive the coupons of its bonds in payment of State taxes is unconstitutional and void, because it impairs the obligation of a contract; that the taxpayer, having once made a due tender of coupons in payment of his taxes, is under no obligation to pay such taxes in money, but may rest securely upon his right to have the coupons received when offered, and that a tax collector who attempts thereafter to forcibly collect such taxes by levying upon the taxpayer's property is not shielded by the legislation of the State, but makes the attempt at his personal peril. The court holds furthermore, that a suit brought against a tax collector for seizure of a taxpayer's property, after due tender of coupons, is not a suit against the State, but is a suit against an individual trespasser acting without the legal authority of the State. The opinion was delivered by Mr. Justice Matthews. The chief justice and Justices Bradley, Miller and Gray dissented-Justice Bradley delivering the dissenting opinion. The dissent was on the ground that VOL. 31 No. 18.

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 behalf of the State, and in no other way. To sue them therefore because they will not receive the coupons in payment, is virtually to sue the State. The sole object is to coerce the State. To say otherwise is to talk only for effect, without regard to the truth of things. * * * It is said that the government does not represent the State when it does an unconstitutional act or passes an unconstitutional law. While this may be averred when the government of a State attempts to force the State from its constitutional relations with the United States, and to produce a disruption of the fundamental bonds of the national compact, and while in such a case it may be admissible to say that the government of the State has exercised a usurped authority, this mode of speech is not admissible in ordinary cases of legislation and public administration. It also tends to sedition by inculcating the doctrine that the government may be treated and resisted as a usurpation whenever the citizen, in the exercise of his private judgment, deems its acts to be unconstitutional. But then it will be asked, has the citizen no redress against the unconstitutional acts or laws of a State? Certainly he has. Whenever his life, liberty or property is threatened, assailed or invaded by unconstitutional acts, or by an attempt to execute unconstitutional laws, he may defend himself in every proper way — by habeas corpus, by defense to prosecutions, by actions brought on his behalf, by injunction and by mandamus. * * * But all these means of protection and redress against unconstitutional operation and exaction are a very different thing from the right to coerce a State into the fulfillment of its contracts. The one is an indefeasible right, a right which cannot be taken away; the other is never a right, but may or may not be conceded by the State, and if conceded, may be conceded on such terms as the State chooses to impose. * * This is the first time, we believe, since the Eleventh amendment was adopted, that any State has been coerced by judicial proceedings, at the suit of individuals, in the Federal courts. That this is such a case seems one of the plainest propositions that can be uttered. * We have not thought it necessary or proper to make any remarks on the moral aspects of the case." We must say that it seems to us that the majority stand upon rather technical reasoning in holding that the suit is not against the State. We are glad as citizens to see a State held to its contracts, but as lawyers we find difficulty in construing this suit to be other than one against the State. At all events, this dissent is a very formidable one -it is an instance where the tail seems almost strong enough to wag the dog.

*

* *

The late Earl Cairns, who died on the 2d ultimo, was twice lord chancellor, a Tory in politics, an Irishman by birth, a lawyer of strong and grave talents, but not of brilliancy. Lord Coleridge said

extent and accuracy of his reading, and the correctness of his literary judgment. Lord Cairns, I dare say, was a man who did not readily give his heart. He certainly seemed of a somewhat reserved manner, but when he gave his heart at all he gave it thoroughly. Twice it has come under my own ob

man inferior to himself in every respect, and on both those occasions it was Lord Cairns who first came forward with a frank admission of mistake, and with an earnest desire to continue the friendship, which was not only touching and honorable, but which showed that he was as good and as generous as he was great and commanding. As long as I live I shall be proud to think that I could call my friend the great man we have lost.”

of him, in the House of Lords: "Lord Cairns had a mind powerful enough to throw light and order into the most intricate and complicated facts, while | he could unweave the subtlest web of argument; and yet he never wasted time or words, but grasped more firmly than most men the subjects with which he had to deal." His lordship also gave the follow-servation that he had a serious difference with & ing reminiscences, some of which will be peculiarly interesting to Americans: "It chanced from circumstances with which I need not trouble your lordships, that when I was chief justice of the Common Pleas Lord Cairns often consulted me as to judicial appointments which he had to fill, and which had been usually filled by members of the common law bar, with whom in the nature of things he could not have had much acquaintance. I do not suggest that he always took my advice. Lord Cairns was too great a man, he had too independent a mind, not to rely in the last resort upon his own judgment. He used the judgment of other men as materials to form his own. But this I may say, as those who knew him best must know, that he was always guided by the severest integrity, and always animated by a single-minded desire to do his duty as he understood it. It might be said that by those on both sides who disposed of judicial appointments, politics have for many years been disregarded, but any one acquainted with public affairs must know that it is not an easy thing to resist the importunities of men who perhaps from the

..

We acknowledge the courtesy of Mr. Albert Matthews in sending us two pamphlets against codification "The Civil Code in California," by John Norton Pomeroy, and The Definitions of Obligation, Property and Contract, in the Proposed Civil Code," by J. Bleecker Miller. No man is more open to conviction on this subject than ourself, but we would "like to see the man " who can convince us that we are wrong.

nature of the case are not aware of the great pub-IN

NOTES OF CASES.

unless

'N Belo v. Wren, Supreme Court of Texas, January, lic mischief that is done by incompetent persons 1885, 19 Rep. 510, it was held that the proacting 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 ex 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, 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 Lord Cairns refused to considering the power to hear and determine matters subhis claims, and he refused on grounds which I cannot help admitting were at the time urgent and forcible, and would by most men be held to be conclusive. I am sure that in not appointing that eminent person Lord Cairns acted against his own wishes, and on the purest and most patriotic motives. There is one other matter to which I will allude. I have seen it stated I where in other respects ample justice was done him that Lord Cairns was cold and ungenial in manner, and that he had very little or no sense of humor. That was not my experience. I do not pretend to the honor of his intimacy, but I can say from what I knew of him, that I always found him most cheerful and amusing, and there were few men who had a keener sense of humor. His literary and classical acquirements I often had occasion to admire, as also the

[ocr errors]

mitted to its jurisdiction by the voluntary consent
of its members. Cooley Const. Lim. 448, and note.
It is only on account of this judicial character that
its proceedings are protected, and to give it such a
character it must have authority not only to hear,
but to decide the matters coming before it, or to
redress grievances of which it takes cognizance.
Barrows v. Bell, 7 Gray, 301. But to be privileged
the proceeding must have been not only judicial
or legislative, but it must not have been prelimi-
Flood
nary, ex parte, and secretly conducted.
Libel, 244; Townshend Sland. and Libel, § 231;
McCabe v. Cauldwell, 18 Abb. Pr. 377; McBee v.
Fulton, 47 Md. 403; S. C., 28 Am. Rep. 465.
There may be cases where a preliminary or ex parte
proceeding would be privileged, but as to this we
do not decide; but when to these two conditions it

« PreviousContinue »