« PreviousContinue »
In England all officers of justice, have a freehold for life in their offices, and cannot be removed but for misdemeanors: see all this strongly laid down in judge Wilson's Bacon Ab. Vol. 5, p. 200, and the cases there cited. Nor can the king himself grant an office, but according to ancient usage, (Ib. 199): nor can he appoint an incompetent person as prothonotary, or master, or clerk of a court; otherwise, the court may refuse to admit him, or may remove him for incompetency, (Ibid. 203.) It would be very well for the state, if such were the settled law at the present day. 12thly, If power be given to appoint for life, or during good behaviour, or what is the same, to appoint generally, the law is, that any limitation is void; and the officer is in, not by the limitation, but by the prerogative, statute, instrument, or custom, that confers the power of appointment. The wording of the commission therefore is of no importance. Hunt v. Ellisdon et al. Dyer, 152, cited and confirmed by Justice Eyres, 1 Show. 517. Colt v. Glover, Hob. 153. cited and confirmed by Holt, 1 Sh. 535. Harcourt v. Fox. 12 Mod.43. 200. Saunders v. Owen, 5 Mod. 386. I do not again touch on the public good so manifestly requiring this construction, or on the public evils so strongly marking the prevailing practice: but I quit this side of the argument with observing, that, in a doubtful case the construction is by law in favour of the grantee. I am well aware that formidable considerations arrange themselves on the opposite side of the question. This practice has been acquiesced in during the whole of the administrations of Gov. M'Kean, and Gov. Snyder, and in two cases under Gov. Mifflin, Scott vice Redick, and Ross vice Jacks. But I do not wonder at this. All parties agree in the practice, as necessary to reward their partizans ; and the officer removed, expects of course to be reinstated, when his faction shall again succeed to their opponents in politics. During the proprietary government, no man was ever removed from office compulsorily. Tire question, I have been told, has been agitated in N. York state, and the officer left without remedy: but I am not acquainted with the case, or its circumstances. At any rate, we are not bound by the precedent, It has been urged, that the officers subjected to this power of removal, have no punishment for delinquency, or incapacity annexed to them, and therefore that such a discretion is necessarily invested in the governor for the time being : but the legislature by annexing penalties to offences, as in the case of duelling, or by declaring the causes of a motion, can take away this necessity whenever they please. In the mean time the officer for mis-user or non-user is open
to indictment, and his bonds are liable to be put in suit. The constitution it is said, ought to be construed popularly, and not by the rules of strict law; but I do not know how to define a popular construction; and the rules of law are founded not merely on experience, but on considerations also of general expedience. - THE people (it is said) by the governor, their agent, have a right to resume ad libitum powers conferred for no certain time: to which I reply, that powers so conferred have always been construed appointments for life, with the usual implied condition of good behaviour. Nor have the people or their agent, any right to interfere in the construction of powers given by the constitution, while that constitution continues in existence. The incumbent once appointed, must be displaced by legal. adjudication. The spirit of the English constitution leans to permanent appointments, whereas frequent changes, and even exclusion by rotation best. harmonize with the spirit of a republican constitution. Still, removals ought to be subject to some rule founded on the terms of the power given : nor is it a very republican construction, that converts the chief magistrate into an arbitrary tyrant, that exonerates him from responsibility, and authorizes him to punish his political opponents as criminals, and substitute private rancour for public justice. My construction it may be said, would deprive a governor of the choice of his confidential officers, such as a secretary of state, and compel him to retain his political or personal enemy in such a station. But this would seldom happen if the office were for life ; and at all events, the officer is compellable to do his duty, and obey the directions of the chief magistrate, who may chuse his advisors where he pleases. The most permanent objection to my reasoning is, the undisputed practice under the constitution of the United States, wherein the words of the power are almost the same with those above quoted. But I cannot think the analogy of the two cases will hold, considering that under the constitution of the United States, the exercise of the right of removal is subject to the formidable check of the senate’s concurrence in the successor nominated by the president. A difference so important, as to destroy the force of all reasoning from the one to the other. A power in every instance controlled in its exercise by the senate, cannot be compared with a power in every instance uncontrolled ; and exercised as the caprice of the governor for the time being, heated by recent opposition, and goaded by revenge, may dictate
I do not pretend to urge these reasenings as conclusive, but I cannot help thinking that under the magnitude of the evil, they are worth discussion. I state them with hesitation, but not without hope, that a similar view of the subject may be taken by some person more competent than myself to bring the subject into full day. Under the mild administration of Gov Mifflin, there was not much to complain of on this subject. The personal virulence indulged in, against Thomas M'Kean, (upon the whole, the most able and independant Governor this state has yet known) might excuse many of his removals, even where reasonable objections to the officer in other respects, would not justify them. But the power itself, is not necessary to the public interest; it affords too much temptation to the exclusive gratification of private feeling; and its exercise of late years, has not tended to lessen the slightest of the objections to which it is liable. As to the other cases wherein the action for money had and received will lie, I refer to 2 Comyns, 1–137, Selwyn and Espinass's Nisi Prius compilations, and Evans's Essays on this action. § 2. De commodata, p. 246. According to Ferriere and lord Holt, not merely exactam but exactissimam diligentium is required. Coggs v. Bernard. § 3. De deposito, p. 247. This section is copied in substance by Bracton, lib. 3 ch. 2.99. b. and adopted by Lord Holt in the leading case of Coggs v. Bernard, 2 Lord Ray. 915, I refer generally on all the doctrine of bailments, to Mr Balmanno's edition of sirW. Jones's treatise. § 4 De pigmore, p. 247. Dig. 13. 7.4. Ib. 13.7. 6. Ib. 13. 7.9. 3. Ib. 13. 7. 40. 2. This is a nominate contract bona fidei. The correspondent remedial action, is actio pignoratitia. It lies for the debtor to recover the goods pledged or pawned, and for the creditor for expenses, interest, &c. i. e. Damages, where the thing pawned did not belong to the debtor. Dig. 13. 7. 3.8 and 9. The pawnee may retain his debt out of the value of the thing pawned before any other creditor. Dig. 20. 1. 10. The creditor is bound to exact diligence; for diligence may be classed under, the strictest care; strict care; ordinary care ; slight negligence ; gross neglig nee. The application of these shades of difference will be found exemplified in sir W. Jones’s treatise and the cases referred to in Balmanno's edition. Strict care being required, the bailee will be liable for the consequences even of slight negligence. Pignus, is the pledge of goods capable of delivery: Hypotheca, is the mortgage of real proporty, or of rights not capable of delivery. Judge Burnet, enquires into this subject at some length in Ryallos Rolle, 1 Atk. 165. and determines that under the Roman law actual delivery was not always necessary in cases of pawn; but in the English law it is. See on the same subject Cortelyon v. Lansing, 2 Caine's N, Y. ca, in error, 202. and Jones v. Smith, 2 Vez. jun. 278. Tit. XVI. De verborum obligationibus, p. 248. Leonina constitutio. Cod. 8. 38. 10. Stipulation, is a nominate contract, stricti juris : for the party promising only, is bound; and is bound only, according to the terms of his promise. The correspondent actions, are certi condictio, and ex stipudatu. The former being the remedy when some specific thing is the subject of the contract, the latter when there is no specific thing stipu
lated for. You promise to deliver me your brown gelding on such a
day. Here the remedy is certi condictio. You promise to deliver me on such a day a sound horse of such a value. Here it is ex stipulatu. See Dig. 45. 1.74 and 75. For a commentary on the law of England as relating to this section, I refer to the case of Brymer v. Atkyns, 1 Hen. Bl. Rep. 175. § 2. Quibus modis stipulatio fit, p. 249. Priusquam is dies practerierit , so in our law, if mortgage-money be to be paid by various installments, the mortgage cannot be sued till the day of the last installment be expired. § 3. De die adjecto perimenda obligationis causa, p. 250.
Pacti exceptione submovebitur. Idest pacti conventi. § 4. De conditione, p. 250. A bond is not due till the event of the
condition either by the Roman or the English law. Dig. 50. 16. 34 and 50. 16. 213. Bacon's Ab. Debt. B. The chance is transmissible. Dig. 45. 1.57. Dig. 44. 7. 44. Conditional legacies might be received in praesenti by giving the Mutian security against the condition. Dig. 35.1. 7. 35.-1. 18.35.—1. 79. 2. All the learning of conditional bonds, will be found in Serjeant Wil. liams's note 1, page 66 to Butter v. Wigge, 1 Saunders, 66; and to Fowel v. Forrest, 2 Saund. 48. and to Holdipp v. Otway, 2 Saund. 108: to which may be added when there are several alternatives in a condition, option is with him who is to perform the act. Doug. 14. Layton v. JPearce. If Defendant is the cause why a condition precedent is not performed, it is to him tantamoint to performance. 1 Powel, 372. Sir Rd. Hotham v. East, I. Comp. 1 Term Rep. 638. If obligor renders the performance of the condition impossible, the bond is forfeited. Secus as to the act of God, the act of the law, or the act of the obligee. Hulbut v. Watts, et ux. 1 Ld. Ray. 112. Co. Litt. : 06. But it was decided in South Carolina, 2 Bay's 108, that if subsequent to a contract for the delivery of slaves, an act of the legislature forbids the delivery, the contractor is liable for their value in money. § 5. De loco, p. 250. So, bills of exchange are frequently drawn and accepted payable at a particular place. § 7. Soua in stipulatum deducuntur, p. 251. The damages here noticed under the form of a penalty for non performance, seem liable to our equity decision, necesse est actori probare, quod ejus intersit. The following references on the subject of damages, may be of use. Cases of damage assessed and stipulated by the contract itself? 16. Vin. 58. Lowe v. Peers, 5 Burr. 2228. Stinton v. Hughes, 6 Term Rep. 13. Orr v. Churchill, 1 Hen. Black. 232. Astley v. Weldon, 2 Bos, and Pull. 346. Smith v. Dickenson, 3 Bos. and Pull. 630. Brangwin v. Perrot, 2 Sir W. Bl. 1190. Wherever damages are clearly assessed by consent of parties, a cou of equity will not interfere on either side, but leave the party to his legal remedy. Lowe v. Peeres, 5 Burr. ub. sup. Woodward v. Gyles, 2 Vern. 119. Rose v. Peterson, 2 Br. Parl. ca. 436. Ponsonby v. Adams, Ib. 431. Black v. East India Comp. Finch. 117. Roy v. D. of Beaufort, 2 Atk. 190. Small v. Williams, Prec. in Chan. 100. But in all cases, where the penalty can reasonably be construed into a mere security against contingent damages, equity will relieve; in the spirit of the words of this section above cited. Benson v. Gibson, 3 Atk. 395. 1 Fonb. Eq. 142. 156. 2 Ib. 423,424. Damages are sometimes given beyond the penalty. Br. ca. in Parl. 16. Elliot v. Davis, Bunb. 23. Hugh Audeley v. , Hard. 136. 1 ch. ca, 226.271. Tea v. Lethbridge, 4 Term rep. 433 compared with Cacamen v Lethbridge, 2 Hen. Bl. 36. and Evans v. Brander, Ib. 547. as to the case of a sheriff Lord Lonsdale v. Church, 2 Term rep. 388 which overrules White v. Sealy, Doug. 49 and Brangwine v. Perrot, 2 sir W. Bl. 1190 which two last however are conformable to Wilde v. Clarkson, 6 Term rep. 303. Hobson v. Trevor, 2 P. W. 191. 1 Str. 533. 10 Mod. 511. Blunden v. Barker, 10 Mod. 462. Perit v. Wallis, 2 Dall. Rep. 252. Graham v. Bickham,4 Dall. 149. Smeedes v. Hoogtaling, et al. 3 Caines N. Y. Rep. 48. McClure v. Dunkin, 1 East. 436. But see the case of Clarke v. Seton, 6 Vez. 411. Damages include debt, costs, and interest, Holdipp v. Otway, 2 Saund. 107. Blackmore v. Fleming, 7 Term Rep. 447. Philip v. Bacon, 9 East. 298 and 304. That the court may assess damages on a Judgment by default in plain cases without a writ of enquiry, or refer them to the prothonotary