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Rules of procedure exist only to save
time, to advance the business of the court,
to secure to each party a fair opportunity
to meet the case against him and to present

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No. 23

his. own case, and should not be allowed
to be used as a method to obstruct busi-
ness, waste time or defeat the ends of jus-
tice. In matters of practice, pleading and
procedure, therefore, it is evident that the
rule-making power of the courts should
not be hampered or fettered by l^slative
restrictions or inhibitions. They should
be settled by rules of court, which might
be changed as actual experience of their
operation and application might dictate.
Questions of practice and procedure con-
sume a large amount of the time of our
nisi prius courts, delay the administration
of the law, and the decision of the many
perplexing questions they create entails un-
necessary labor upon our appellate courts.
The delay and expense which now attends
the trial of important cases will continue
as long as the present, clumsy, inefficient
and antiquated methods of practice, plead-
ing and procedure remain.

It has been estimated that at least one-
third of the work of our appellate courts
consists in passing on the pleadings in per-
sonal injury cases. Vested with proper
power, the supreme courts could easily pre-
pare simple and short forms of pleadings
in personal injury and other cases, forms
of complaint for every kind of action, and
thus lighten the labors of the bar, of our
nisi prius and appellate courts. During the
last session of the legislature, I prepared
and submitted for their consideration a
simple practice act similar to the one en-
dorsed by the American Bar Association,
being the type of practice act adopted by
the state of New Jersey, by which the
supreme court was given the power to
adopt rules of practice, procedure and
pleading, and providing that such rules
should supersede any statutory or common
law regulation theretofore existing.

Common Law Power of Judges. — The
common law power of judges should be re-
stored. The reason why trials consume so
much more time in this coimtry than in
England is largely due to the fact that we
have withdrawn from the courts their com-

mon law powers to exercise control over
the trial of the cause. Clothed with the
power vested in judges l^ the common law,
a judge upon our bench could restrict coun-
sel to tl^e argument of relevant and mate-
rial questions, could promptly overrule and
discourage technical objections, could pre-
vent useless and unnecessary consumption
of time by the introduction of immaterial
and irrelevant evidence or by the argument^
of questions as to which the court has a
clear and decided opinion, and could with-
out fear of reversal, execdse the necessary
authority so essential to the prompt and
efficient administration of justice. With
the present legislative restrictions, our
judges are denied their common law pow-
er of summing up the evidence, and there-
by presenting the issue clearly and intdli-
gently to the jury, but are converted into
mere presiding officers whose principal duty
is to confuse the jury by submitting ex-
hausting presentations of l^al questions.
It has been claimed that the restoration to
our state judges of their common law pow-
ers, would result in abuse or judicial tyran-
ny but the prompt and impartial administra-
tion of the law which has characterized our
federal courts as well as the courts in Eng-
land, conclusively ^ow that these fears
are groundless. Increasing the power of
our judges by restoring to them rights
which have been exercised tor centurif^
by the nisi prius courts of England would
tend to elevate the standard of oiu: courts
and largely increase their efficiency and re-
sult in pr(Hnoting a more speedy and im-
partial administration of the law.

Hon. Elihu Root, president of the Amer-
ican Bar Association, speaking of the
statutes found in many states and quite re-
cently urged upon congress prohibiting
judges from expressing any opinion to the
jury^upon question of fact, makes the fol-
lowing convincing reply :
/ "From time immemorial, it has been the
duty of the coiurt to instruct juries as to the
law and advice them as to the facts. Why
is it that by express statutory provision the
only advice, the only clarif)dng opinion and

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Vol. 86



explanati<m regarding the facts, which stand
any possible chance to be tinprejudiced and
fair in the trial of a cause, is excluded from
the hearing of the jury? It is to make cer-
tain that Sie individual advantages gained
by having the best lawyer shall not be
taken away. It presents the individual's
right to win, if he can, and negatives the
public right to have justice done. It is to
make litigation a mere sporting contest be-
tween lawyers and to prevent the referee
from interfering in the game. The fact
that such provisions can be established and
maintained, exhibits democracy's tendency
to yield support to the human interest of
the individual as against the exercise of
even its own power by its own represent
tives and for its own highest purpose.

Justice of the Peace and Inferior
Courts. — Both should be abolished. Dis-
trict magistrates, imder the new plan, take
the place of the justice of the peace and
inferior courts. They are attached to the
county court and their number is de-
termined by the population and the dis-
cretion of the judicial council. All the
justices of the peace, police magistrates
and inferior courts are made by the act first
district magistrates. Until otherwise di-
rected by the council, the district magistrates
exercise the judicial power of the coimty
court in all matters within the jurisdiction
of the justices of the peace, or any cause or
matter within the jurisdiction of the coimty
court, assigned especially by the county
judge to the district magistrate, or any cause
within the jurisdiction of the county court
which the parties agree may be heard by
the district magistrate. The county judge
can transfer any cause from any <listrict
magistrate to the coimty judge or any asso-
ciate judge of the county court for hearing
and determination. The judicial council
is authorized to transfer to the district mag-
istrates all or such part of the judicial pow-
er of the county courts as they may see
proper and can require such district mag-
istrate to perform such duties with respect
to the business of the county court or any
branch thereof or of any branch office of
the clerk of the general court of judicature
in the county as the judicial council may

determine. The immediate supervision of
the work of the district magistrates is in
the hands of the county judge; justices of
the peace are now practically independent
of all supervision and this power of super-
vision on the part of the county judge
eliminates one of the principal defects of
the present justice of the peace system.

Selection and Retirement of Judges. —
Three plans have generally prevailed in this
country for the selection of judges, ap-
pointment by the governor, appointment
by the chief justice, and election by the
people* Since the introduction of the
primary system of nominations, this latter
method has not proven very satisfactory
and there has been a steady decline in the
standard of the courts. Under the con-
vention system, which had its origin in
our representative theory of government,
the lawyers constituted a very consider-
able proportion of the delegates and on
account of their preculiar knowledge of the
fitness of the applicant, a higher class of
judges were selected. One advantage of the
convention* system was that there was a
sense of responsibility on the part of the
delegates, which tmfortunately is too often
lacking with the voter tmder the primary
nomination plan. The necessary result is
that in casting his ballot under the latter
system, friendship, locality, personal obliga-
tions or prejudice, solicitation or activity of
the candidate generally exercise a controll-
ing influence. Under the convention system,
the offke frequently sought the man, where-
as tmder the primary plan no man can be
nominated who does not actively seek the

The consequence is that under the pri-
mary plan we are confined in our choice to
those active politicians, who seek the
nomination, and the candidate who is the
best mixer, who conducts the expensive
press bureau, who employs the largest
number of workers and agents and who is
most industrious in seeking votes or who
can appeal to local prejudice or passion,
has the best chance of winning, regardless

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No. 23

of qualifications. The test of fitness is no
longer knowledge of the law, but the pos-
sesion of those qualifications which enables
one to become a succtesful ward politician.
Knowledge of human nature, influences
that control human action is more im-
portant than profound learning of the law.
The tricks of the politician count for more
than the learning of a Story or a Marshall.
What then is the purpose of an appoint-
ment or election but to put into office that
man who by reason of his legal knowledge^
his impartiality and judicial temperament,
independence and high character guarantees
a firm, vigorous and impartial administra-
tion of the law ? Whatever system, whetlier
by appointment or election, that will accom-
plish these results, is the system we should

The primary system and the popular elec-
tion of judges does not tend to create an
independent judiciary. On the contrary,
its tendency is to incline the judge to yield
to popular passion and prejudice, to be
swayed by every passing bceeze of popular
sentiment and to allow his own re-election
to exercise a controlling influence in his
oflicial conduct. Fortunately, there are
many judges who rise above such grovelling
influences and who do their duty, even
though the thunder of popular disapproval
light on their unterrified brows.

The latest conclusions of the American
Society of Judicature suggests some very
wise solutions of the evils of the present
system and are worthy of serious con-
sideration. Under their plan, the chief
justice of the highest court' iri the state
and of the unified courts of the state
should be chosen by the entire electorate of
the state, for a term "neither too long to
make him unmindful of public approval,
nor too short to make the office worth the
strain of repeated campaigns," and should
be given the absolute power of selection and
appointment of all the other judges of his
court, whose positions become vacant dur-
ing his term of office. It is further sug-
gested by their plan that at stated periods.

say at the expiration of three years, at the
expiration of nine years and at the expira-
tion of eighteen years from the date of
their appointment of each of these judges,
the question should be submitted to the
entire electorate with reference to the judges
who have been sitting for those periods re-
spectively, "shall the judge be retained?
Yes or No?" If a majority of the voters
vote in the negative the judge is rejected
and the chief justice appoints someone else
to fill the vacancy.

This plan overcomes one of the chief
evils of the present system. No reason
can be shown why a judge who is satisfac-
tory should be compelled to submit to a
competitive race to retain his position.
Whether appointed or elected, the sole ques-
tion to be submitted to the electorate at
the expiration of his term is "Shall John
Doe, who has served continuously as judge
years be retained ; answer

yes or no." Then after being retained for
two or three terms by the express consent
of the voters, the judge is to be continued
in office till the age of retirement, without
further elections. This plan gives the peo-
ple the right to recall a judge who is un-
satisfactory, but until he is recalled there
is no vacancy in his office, and even if the
present system is continued, candidates
seeking judicial positions must wait until
the people have declared that the sitting
judge is unsatisfactory and shall not be re-
tained, before they can seek the office.

The campaign rivalry and unseemly con-
tests between judges on the bench and can-
didates for their position, which under our
system has done so much to impair the in-
tegrity and independence of the judiciary
and to lower the standard of the judicial
office, would be ended. A lawyer's reputa-
tion is largely local. The qualities which
make a successful advocate and attract pub-
lic attention are not necessarily those quali-
ties which equip a lawyer for a judicial
office. If it is difficult for the bar, then how
much more difficult is it for the public at
large to make a wise and discriminating

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Vol. 86



choice between candidates for judicial posi-
tions. The judge on the bench should not
be retired unless his services are unsatisfac-
tory and until the people determine by an
election that sole question, he should not be
forced to enter into a competive contest to
retain his seat. The mass of the people, by
whom the judges are elected in these com-
petitive contests, are confessedly ignorant of
the fitness or imfitness of the candidates, but
they can readily decide whether the sitting
judge has been satisfactory and should l)e

In Conclusion. — The adoption then of the
plan for one great court of which all courts
of thp state are branches or divisions, ac-
cording to the model law drafted by the
American Society of Judicature, and the
recommendations of the English Judicature
Commission, would unquestionaUy give
Alabama the best judicial structure of any
State in the Union. It would not only save
the state may hundreds of thousands of
dollars by reducing the expenses of the
judiciary one-half at least, but would more-
over remove the embarrassing, costly and
inexcusable defects of our appellate pro-
cedure. It would prevent any waste of
judicial power, jthe delays and costs of
appeals, of dismissals on acount of mistake
in venue, the duplication of clerical work,
but would thoroughly organize the work of
every court, place the power to make rules
in the courts where they belong, and enor-
mously increase the vigor, efficiency and
economy of the administration of the law.
In this great movement for judicial reform,
the bar should become the leaders and not
allow any ultra spirit of conservatism to
check their zeal in a cause so vital to the
future welfare and progress of the com-
monwealth. When these reforms are ac-
complished, then and not until then will
the promises of the Great Charter be real-
ized — ^''We will sell to no man; We will
delay to no man ; We will deny to no man,
either right of justice."

Ebimet O'Neal.
Florence, Ala.


95 S. E. 777.


Supreme Court of North Carolina.
April 24, 1918.

A common carrier is not bound by a bill of
lading: issued by Its aerent, unless the groods were
actually received for shipment, and is not es-
topped by the bill of lading from showlner by
parol that no eroods were in fact received, al-
thouerh the bill has been transferred to a bona
fide holder for value.

Appeal from Superictr Court, Wake County;
Stacy, Judge.

Action by the Commercial National Bank
against the Seaboard Air Line Railway.
Judgment suetaining demurrer to complaint,
and plaintur appeals. Affirmed.

The complaint alleged, in effect:

"That it purchased for value and is the owner
of certain bills of lading issued by the defend-
ant company through its local freight office in
the city of Raleigh which were made to the
Raleigh Grain J: Milling Company and indorsed
to the order of plaintiff, on which bills of
lading drafts were attached, drawn by said Ral-
eif^ Grain ft Milling Company on the eon*
signees, payable to plaintiff, which drafts plain*
tittB diseoonted at their ftee yalue.'*

Tlien follows itemised statement of drafts
and bills, giving names of consignees, ete., and
aggregating |5,091.80; that said drafts were
returned "not paid," with the information that
no goods had been received Iqr the consignees,
and that plaintiff is informed and brieves that
the defendant, the Railroad Company, did not
receive the goods as represented by the bills
of lading and no shipments were made on ac-
count thereof, and that the Raleigh Grain ft
Milling (Company was totally insotTent

Defendants demur because it appears from
the complaint that the goods, as represented
by the bills ot lading attadied to the com-
plaint, were not actually receiTed by defend-
ant and defendant is not bound thereby, al-
though they have been transferred to a bona
fide holder for value, and that the copy of
the form of bill annexed to complaint con-
tains the notation, shipper's load, and count,
etc. There was Judgment sustaining the de-
murrer, and plaintiff excepted and appealed.

'HOKE. J. In Williams, Black ft Co. v. Rail-
road. 93 N. C. 42, 5S AuL Rep. 410, it was held

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No. 23

"A common earrier is not bound by a bill of
lading issued by its agent unless the goods be
actually received for shipment; and the pzin*
cipal is not estopped thereby from showing by
parol that no goods were in fact received al-
though the bill has been transferred to a bona
fide holder for value."

This decision, fully approved in the more
recent case of Peele v. Railroad, 149 N. C.
390, 63 S. EX 66, has since been the accepted
and unquestioned law of the state, and, to
our minds, the ruling is in accord with rie^t
reason and sustained by the decided weight
of authority in other Jurisdictions. Mo. Ry.
V. McMadden, 154 U. S. 155, 14 Sup. Ct. 990,
38 Ia Ed. 944; Pollard v. Vinton, 105 U. S.
7, 26 L>. Ed. 998; Ray ft Roy v. Northern
Pacific R. R., 42 Wash. 572, 85 Pac 53, 6 L.
R. A. (N. S.) 302, 7 Ann. Cas. 728; Baltimore,
etc., R. R. V. Wilkens, 44 Md. 11, 22 Am. Rep.
26; National Bank of Commerce v. Railroad
Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R.
A. 263, 20 Am. St Rep. 566. The position and
the principles upon which it may be properly
made to rest are very impressively stated by
Mitchell, Judge, in the Minnesota case, supra,
as follows:

"The reasoning by which this doctrine is
usually supported is that a bill <^ lading is not'
negotiable in the sense in which a bill of ex-
change or promissory note is negotiable, where
the purchaser need not look beyond the instru-
ment itself; that so far as it is a receipt for the
goods it is susceptible of explanation or contra-
diction, the same as any other receipt; that the
whole question is one of the law of agency;
that it is not within the scope of the authority
of the shipping agent of a carrier to issue bills
of lading where no property is in fact received
for transportation; that the extent of his au-
thority, either real or apparent, is to issue bills
of lading for freight actually received; that his
real and apparent authority, i. e., the power
with which his principal has dothed him in
the character in which he is held out to the
world, is the same, viz. to give bills of lading
for goods received for transportation; and that
this limitation upon his authority is known to
the commercial world, and therefore any per-
son purchasing a bill of lading issued by the
agent of a carrier acts at his own risk as re-
spects the existence of the fact (the receipt of
the goods) upon which alone the agent has au-
thority, to issue the bill, the rule being that,
if the authority of an agent is known to be
open for exercise only in a certain event, or
upon the happening of a certain contingency,
or the performance of a certain condition, the
occurrence of the event, or the happening of
the contingency, or the performance of the con-
dition must be ascertained by him who would
avail himself of the results ensuing from the
exercise of the authority. An examination of
the authorities also shows that they iM;>ply the
same principle whether the bill of lading was

issued fraudulently and collusively, or merely
by mistake."

And further in the opinion, while recogniz-
ing the force of the opposing positicm, going
so far as to say that if the question was res
itUegra, it might be allowed to prevail, the
learned judge gives the practical suggestions
in support of the court's decision as loUows:

**But, on the other hand, it may be said that
carriers are not in the ousiness of issuing and
dealing in oiils oi lading in the same sensto in
wnicn bankers issue and deal in bills of ex-
change; that their business is transporting
property; and that if the statements in the re-
ceipt part of bills of lading issued by any of
their numerous station or local agents are to
be held conclusive upon them, altnough fals^
It would open so wide a door lor nraud and col-
lusion that the disastrous consequences to the
carrier would far outweigh the inconvenience
resulting to the commercial world from tne
opposite rule, it is also to be admitted that
it requires some temerity to attack either the
policy or the soundness of a rule which seems
to have stood the test of experience, which has
been approved by so many eminent courts, and
under which the most successful commercial
nation in the world has developed and con-
ducted her vast commerce eve^ since the in-
ception of carriers' bills of lading."

Suggestions that, to our minds, embody the
weightier reason.

It is argued for the plaintiff that as a
recent federal statute (chapter 415, Act Aug.
28, 1916, 39 U. S. Stat, at Large, pt 1, p. 538
[Ck>mp., St 1916, ii 8604aaar8604w]) makes
these bills of lading negotiable^ the question
of public policy Involved in these cases and,
so far as the federal decisions are concerned,
is no longer of weight Cn a cursory exam-
ination of the statute in question, there is
doubt if the law does or was intended to make
bills of lading negotiable in the full sense
of the term, that is, to the extent that
ordinary commercial paper is so. Nat Bank
V. Railroad, supra, and see an interesting ai>
tide on this subject in Michigan Law Re-
view for April, 1918, p. 402. But, if this be
conceded, the fact that such a law was deem-
ed necessary to bring about a change, and that
Congress considered the subject with its at-
tendant results of such perplexity and im-
portance as to require a statute of 45 sections
to deal with it adequately and safely, makes
rather against the plaintiff's position as to
what the law now is, for ours is only the jus
dicere, and leads to the conclusion also that,
if any change is fdund desirable, it should be
by the lawmaking body, where all the prac-
tical suggestions that are presented in such a
problem may be fully discussed and deter-
I mined.

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Vol. 86



As now advised, we most adhere to our
former decision and the judgment for defend-
ant is affirmed.


BROWN, J., did not sit, and took no part in
the decision of the case.

Note.— Liability of Carrier to Bona Fide
Holder of Bill of Lading Negligently or Fraud-
ulently Issued.— Thtrt is considerable diversity
of view as to the holding made by the instant
case, and in some of the States a provision has
been made by statute, as article in Michigan
Law Review (April, 1918) shows is the case
as to interstate commerce. It is to be inferred
that the instant case regards the act of Con-
gress as confirmatory of the view it takes of
the matter. But it may be thoufirht that Con-
gress merely recognized the ruling made in
Pollard V. Vinton, 105 U. S. 7. 26 L. ed. 998 and
Mo. Ry. V. McFadden, 154 U. S. 155. 14 Sup.
Ct. 990, 38 L. ed. 944. .

In Sealy v. M. K. & T. R. Co., 84 Kan. 479,
114 Pac. 1077, 41 L. R. A. (N. S.) SCO, the
ruling turned upon the meaning of a Missouri
statute, which in terms made bills of lading
negotiable "in the same manner as bills of ex-
change and promissory notes." after proper in-
dorsement. Independently of that statute Mis-
souri courts had expressed the view hHd hv
the instant case, but the Kansas court held tHat
the Missouri statute changed that rule. And the
Kansas court declared its own view in a later
case differently from that held in the instant
case, citing several antecedent Kansas cases.

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