Judge Paterson prepared also an act respecting the Court of Chancery, which was passed in 1799, a few months after the Practice Act (Paterson's Laws, p. 428). He made no provision therein for the punishment of solicitors who had been guilty of malpractice. It is almost inconceivable that he would have omitted such a provision in the Chancery Act and inserted it in the Practice Act if it had been meant that the Court of Chancery should possess that power. Moreover the language of the Practice Act demonstrates that the power was meant to be limited to the Supreme Court. The only penalty prescribed for misconduct, including as we have said, misconduct in any court, was that the delinquent solicitor should be put out of the roll, and never after permitted to practice. Obviously before he could be put out of the roll, he must be on it. The only roll ever known in New Jersey is a roll kept by the clerk of the Supreme Court, going back to colonial days, and for many years the oath to which an attorney and solicitor subscribed on that roll has covered his office both as

The

Supreme Court, as soon at least as the com
mission began to run to the licensee as both
attorney and solicitor. It was because the
Justices of the Supreme Court did the work
that the Legislature gave them the fee, mak-
ing no distinction between attorney and
solicitor and giving one fee for the two
combined. There was another and a more
cogent reason. The evil of the English prac-
tice was that a man might be able to prac-
tice in one court who had been stricken off
That evil was
the roll of another court.
the natural, almost inevitable, result of each
That evil
court having a separate roll.
Judge Paterson guarded against by providing
that for malpractice in any court, the prac-
titioner should be put out of the roll and
never after permitted to practice as counsel-
or, solicitor, or attorney, unless he obtained
a new license and was again enrolled in due
form. The evil of having solicitors and
attorneys under the control of two distinct
courts is well illustrated in the present case.

Mr. Hahn's offense is said to have been committed by him as a solicitor in his practice in the Court of Chancery. The Supreme solicitor and as attorney. In re Raisch, 83 N. Court would have no means of knowing the J. Eq. 97, 90 Atl. 12. The oath has always facts, unless communicated to it by the been taken before the Supreme Court. Chancellor as in the Cahill Case hereinafter suggestion in the Raisch Case that Judge referred to, or by some outside agency. Paterson when he drew the Practice Act of The Chancellor by proceeding to "debar" the 1799 either erroneously supposed that the solicitor, prevents him from practicing in the Court of Chancery maintained a separate Court of Chancery before the Supreme Court roll of its solicitors and that they took their can even direct proceedings to be begun in official oath as solicitors before the Chancel- the Supreme Court. Under our constitutionlor in open court, or assumed that this prac-al provisions, the attorney cannot be put out tice the English practice-would be estab- of the roll without notice and a hearing, lished forthwith in New Jersey, can hardly and, pending the hearing, if the present orbe taken seriously. That Judge Paterson der is valid, the lawyer, as he is commonly who was a solicitor himself and had already called, may practice in one tribunal and served as Chancellor could have made the not in another, the very scandal that Judge mistake of supposing that he had signed such Paterson's act would have avoided. One a roll as solicitor, or that he had had such a who is put out of the roll of the Supreme roll in his custody as Chancellor, when in Court is disqualified to practice in all courts; fact he had not, and that he had taken an one who is "debarred" as solicitor may still oath as solicitor before the then Chancellor practice in all other courts, unless a new or that others had taken such an official oath proceeding is had against him. Judge Patbefore him when Chancellor, in open court, erson could not have meant that. Again the when the fact was otherwise, is to us in- provision as to putting counselors out of credible. The alternative supposition that the roll is contained in the same section as the English practice would be forthwith es- the provision relating to attorneys and solictablished in New Jersey is an impossible sup-itors. Whether the attorney and solicitor position since Judge Paterson himself omit- holds two offices as the Vice Chancellor argues ted from the Chancery Act all provision as to striking solicitors from the roll and carefully inserted such a provision in the Practice Act. The language is struck out of the roll, not the rolls.

Judge Paterson moreover had a good reason for putting the provision in question in the Practice Act. Although the commissions of counselors, attorneys, and solicitors were from the Governor under the great seal of the state, the practice was to issue the commission on the recommendation of the Supreme Court, and only on that recommendation. Even the commission to one as solic itor was issued on the recommendation of the 96 A.-38

in the Raisch Case, or is one officer with two distinct functions as a Justice of the Supreme Court is also a judge of the oyer and terminer, is unimportant; a counselor certainly holds but one office, that of counselor at law. There is no such officer as "a counselor of this court," to use the words of the Chancellor's order. The office of counselor at law cannot be divided by the action of the Court of Chancery; the Governor's commission requiring all courts to admit him as such cannot be deprived of its efficacy in one end of the statehouse while it remains efficacious in the other. So far as the present order affects Mr. Hahn as counselor, it

is a clear excess of jurisdiction. It is notable that in the case of Cosey, argued at the same time, there was no attempt to "debar" him from practice as counselor; so that if the order in his case is valid, although he may not issue a subpoena, he may nevertheless appear and argue before the Chancellor as a counselor.

value as a precedent than the weight, great to be sure, to be given to the view of the very learned and able judge who gave expression to it. Confessedly what he said was merely obiter, since the question of jurisdiction was not raised in the case (see 83 N. J. Eq. 85, 86, 90 Atl. 12), and the discussion of that subject, it seems probable, was intended as a foundation for a claim of jurisdiction in the Court of Chancery that had never been exercised before with the possible exception of the Edmunds Case. This court is not bound by the Raisch Case nor by the cases in the Court of Chancery that have followed it during the last two years without any further consideration of the question of jurisdiction. We have thus far dealt with the question as one of statutory construction. The Raisch Case seeks, however, to vindicate the jurisdiction on the theory that the power was inherent in the Court of Chancery when the Constitution of 1844 was adopted. This is deduced from the fact that the English Chancellor exercised the power over the solicitors in his court. The deduction lacks support in fact. What the English Chancellor did was to strike off the roll of the Court of Chancery a solicitor who was enrolled thereon. Precedents antedating the Judicature Acts of 1873 and 1875 are given in Seton on Decrees, 651, 652. There is nothing that we have found or that counsel has cited to show that the English Chancellor ever undertook to strike a name off the roll of the King's Bench. The very reason that the order now brought here for review rejects the precedents of the English Chancery and "debars" Mr. Hahn is that the established form of order would be absurd, since Mr. Hahn has never signed a roll of the Court of Chancery. A novel term had to be invented for this novel proceeding and he is "debarred." No power to "debar" was ever asserted by the English Chancery.

To return to the language of the Practice Act of 1799. The provision as to re-enrollment of itself is conclusive against the jurisdiction of the Court of Chancery. A new license could be obtained only as the old license had been obtained, by a recommendation of the Supreme Court and a commission from the Governor; and that commission would require the Chancellor as well as other judges to admit the practitioner to practice. The control of this new license and re-enrollment would thus be in the Supreme Court, and the man who had been "debarred" on one day by the Chancellor might walk into court with the Governor's new commission the next week. To avoid that scandal the control was put in a single tribunal, the Supreme Court. No doubt our whole system of admission to the bar and of disbarment is sui generis, but it has worked well and so far as we know without difficulty for over a century, recognized by the Court of Chancery as well as by the Supreme Court, and no question has ever been brought to this court until the present time. We are far from suggesting that any inherent power of the Court of Chancery is lost by disuse; but when the question is whether the power existed in that court, the fact that it has not been exercised is a cogent argument against its existence. The argument becomes irresistible when we find that a distinguished Chancellor communicated to the Supreme Court a case of malpractice by a solicitor in the Court of Chancery "with the suggestion that it was a case for discipline." In re John Francis Cahill, 66 N. J. But the case is of too much importance to Law, 527, 50 Atl. 119. It is true we are rest the argument upon the novelty of the referred in the opinion of the Vice Chancel- word used, significant as that novelty is. The lor in the Raisch Case, 83 N. J. Eq. at page jurisdiction of the Court of Chancery that is 111, 90 Atl. 12, to an unreported case, In re protected by the Constitution of 1844 is the Edmunds, where Chancellor Runyon, it is jurisdiction that existed at that time. This said, expelled from office a solicitor who jurisdiction was not necessarily the same as had forged a decree of divorce. The fact the jurisdiction of English Chancery. So far that no opinion is reported and that the as the latter depended on English statutes Chancellor "stayed the infliction of the pen- antedating the Revolution, our inquiry must alty" weakens the value of the case as a be whether the statute was in force in New precedent even in the Court of Chancery. Jersey. The regulation of the enrollment, We cannot avoid the thought that perhaps he which meant the admission to practice, of came to entertain doubts of his jurisdiction. solicitors was regulated at the time of our The explanation that he was led by consider Revolution by statutes. The name "solicitations of mercy seems hardly adequate in ors" seems to have arisen in the seventeenth view of the serious nature of the offense- century. Christian's History of Solicitor, 74 one in which mercy would be misplaced. ff. In 1729 the act of 2 Geo. II, c. 23, for the Such weight as the case might have had in better regulation of attorneys and solicitors the Court of Chancery is lost in the face was passed. That act required only an oath of the subsequent action of Chancellor Magie that the affiant would truly and honestly dein the Cahill Case, and it was never follow-mean himself in the practice of an attorney. ed until two years ago in the Raisch Case. Christian, 111. We have already referred to

As the Court of Chancery was without jurisdiction to make the order, the motion to dismiss the appeal must be denied.

[5] The question whether or not the order debarring the appellant may be held to be an order suspending him from practicing in the court of Chancery until the Supreme Court has acted under the statute is not presented by a motion to dismiss the appeal which is all that is now before us; such a question can be properly dealt with only upon the appeal itself when the question will be whether the order brought up by the appeal shall be affirmed, reversed, or modified.

II, c. 26) so as to give solicitors the privilege | Am. St. Rep. 719. As far as we know the to practice in the King's Bench without fur-power to punish for contempt is limited to ther fee. The important point is that the fine and imprisonment, and does not extend practice of solicitors was regulated by stat- to stripping a man of his means of gaining ute. By the Constitution of 1776 it was pro- a living. We need not pursue the subject vided that so much of the statute law as since the proceedings do not purport to be had theretofore been practiced in the colony proceedings to punish for contempt and there should still remain in force, until altered by is no adjudication of a contempt. the Legislature. To make definite exactly what was meant, the Legislature on November 24, 1792, authorized Judge Paterson, who was then Governor, to collect and reduce into proper form all the statutes of England or Great Britain which before the Revolution were practiced and which by the Constitution extended to this state, as also all the public acts passed by the Legislature before or since the Revolution which remained in force; and on March 19, 1795, authorized him to collect, alter, and modify the statutes he had not reported on, and to propose to the Legislature such bills as to him should appear conducive to the general interests of the state and to the completion of the revision TRENCHARD, J. (dissenting). I am unaand system of the laws of this state. Judge ble to concur in the conclusion of the majorPaterson's work in pursuance of these legis-ity of the court. I think the Court of Chanlative mandates has ever since been treated as a complete system of the statute law of New Jersey in 1799. Schomp v. Schenck, 40 N. J. Law, 195, 29 Am. Rep. 219. The omission of the acts of 2 Geo. II, c. 23, and of 23 Geo. II, c. 26, together with the enactment of the Practice Act of 1799, make it clear that the English law as to the admission of solicitors was not applicable in this state, and account for the uniform practice with reference to the matter. We find no jurisdiction of such proceedings as this existing in the Court of Chancery when the Constitution of 1844 was adopted.

It

cery had jurisdiction to make the order under review. I think it had power to make it substantially for the reasons given by Vice Chancellor Stevenson in his opinion in Re Raisch, 83 N. J. Eq. 82, 90 Atl. 12, in which case an order quite like the one here was made. If, as I think, the Court of Chancery had power to make such order, it follows, upon well-settled principles, that it is not appealable. I vote to dismiss the appeal.

I am requested by Justices GARRISON and BLACK, and Judges WHITE, TERHUNE, and HEPPENHEIMER to say that they concur in this view.

In re COSEY.

Feb. 9, 1916.)

(85 N. J. Eq. 599)

[3, 4] The order cannot be sustained under the section of the Practice Act requiring the solicitor to act under the direction of the court. That obviously refers to causes in which he is acting, not to his own disqualification for practicing at all, which is the (Court of Errors and, Appeals of New Jersey, subject of another clause of the statute. is, however, suggested that the order made by the Chancellor may be sustainable as a punishment for contempt. This amounts to saying that what the Court of Chancery cannot do directly, it can do indirectly. The distinction between the power to punish for contempt and the power to disbar is pointed out in Re Robinson, 19 Wall. 505, 22 L. Ed. 205, and the care our own courts take to

avoid excessive punishment for contempt is apparent from our opinion in O'Rourke v. Cleveland, 49 N. J. Eq. 577, 25 Atl. 367, 31

Proceedings to strike from the roll the name of Alfred B. Cosey, solicitor in chancery. From an order of the Court of Chancery (94 Atl. 54) prohibiting Alfred B. Cosey from further prac ticing as solicitor or counsel in the Court of Chancery, he appeals. Motion to dismiss appeal denied.

Nelson B. Gaskill, of Trenton, for the motion. Thomas S. Henry, of Newark, opposed.

PER CURIAM. The motion to dismiss the

appeal is denied for reasons which sufficiently appear in the opinion filed in the Matter of Hahn, 96 Atl. 589.

In an action for a quarry laborer's death, (Supreme Court of Vermont. Rutland. Feb. exclusion of evidence by defendant as to a custom of safety practiced by employés was harmless, where deceased, while complying with such alleged custom, met his death.

1. MASTER AND SERVANT
-QUESTION FOR JURY.
In an action for a quarry laborer's death
from a falling stone as it was being removed 1056.]
from the quarry, held, that defendant's negli-9.
gence was for the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.]

2. MASTER AND SERVANT

281-Injury-IGNORANCE OF DEFECTIVE APPLIANCE - EVI

it was an old chain, had been in use for some | E. 746, and Kinney v. Corbin, 132 Pa. 341, 19 time, and that such chains deteriorate with use; that it had been frequently repaired; that an accident befell the cable on which the carrier ran shortly before this accident, and it had been so temporarily repaired that it sagged under a load, and this was how the stone happened to strike the butt of the quarry, whereas, if the cable had been in its former condition, the stone would have | swung clear and passed over the butt without touching it; and that the inspection of the chain by the superintendent was inadequate. It is very plain from this that the question of the defendant's negligence was for the jury.

Atl. 141, cited by the defendant, are not authorities to the contrary. The former involved only the fall of a stone by the breaking of a chain; the plaintiff voluntarily put his foot under the stone and made no attempt to keep out from under it. In the latter case the plaintiff not only voluntarily went under the stone, but he knew that the chain was considered unsafe. In neither of the cases did any unusual condition, like the bounding of this stone from the pin, appear. It was not error to exclude the testimony as to instructions given by the defendant to Rossi in regard to inspecting the chain. The duty of the master to furnish reasonably safe instrumentalities and to keep them in that condition is nondelegable. If Rossi negligently discharged that duty or omitted it altogether, the shortage was that of the defendant. James Moloney, a pitman of 22 years' experience, was improved as a witness, and testified, in effect, that a half-inch chain is not heavy enough to handle a stone the size of the one which is here in question. The defendant objected and excepted to this testimony on the ground that the witness "had made no special observation of this subject." But the witness testified to his experience with chains of various sizes, and that he had observed by comparison the strength of various-sized chains. This warranted a finding that he was qualified to give an opinion as to the suitability of a half-inch chain and the ruling was without error.

[2-4] There was no direct evidence that the intestate was ignorant of the condition of the cable or the insufficiency of the chain, but the circumstances tended strongly to indicate that he was ignorant of these matters, and the jury was fully justified in so finding. If the fault in the chain was its insufficient size, it would require judgment, experience, and special knowledge to determine its insufficiency. The approximate weight of the stone to which it was fastened would also be a matter of judgment and experience. The character of the intestate's duties, the short time he had worked in this quarry, the lack of occasion and opportunity on his part of inspecting the chain or the loads put upon it, and the character of the man as shown by the record were circumstances warranting an inference that he was ignorant of the facts referred to. So far as the condition of the [7] The defendant also complains that this cable is concerned, the evidence shows that witness was allowed to state that he did not he was not present when it was injured or use a half-inch chain because it is not strong repaired, and the evidence tended to show enough, without any showing that the condithat he knew nothing about it. The question tions under which he used a chain were at of assumption of risk was for the jury. all similar to those in the defendant's quarry. When the stone started up out of the pit, But the transcript shows that the kind of a Rossi, the man who chained it, and who was chain used by the witness was brought out at work on the same bench, called to the in- in his cross-examination, and that, when on testate to "look out." Thereupon the latter, redirect examination he was asked why he who was not then near the stone, ran over did not use a half-inch chain only, a general to the corner of the bench about 10 feet objection was made that his answer would be away, and, when the warning sound indicat- incompetent and irrelevant. It was not suged that the stone was about to fall, he start-gested that there should be a showing of ed toward the west to avoid its hitting him. It is quite apparent that the intestate was far enough to one side of the stone-one witness put the distance at 15 feet-and that he would have been safe if the stone had not in falling struck the pin and glanced off in his direction. When it did fall he was too late to escape it. That he did not, in fact, reach a place of safety, does not necessarily imply that he did not use due care. Ingram's Adm'x v. Rutland R. Co., 89 Vt. 278, 95 Atl. 544.

care

similarity of conditions. So the point now made for the first time is not available.

[8] The defendant was not harmed by the exclusion of evidence as to the custom of the employés, including the intestate, to get out from under a stone when it was hoisted out of the pit. This is just what the intestate did on the occasion of his injury. Proving such a custom would, at best, only tend to show a duty on the part of the intestate to get out from under this stone. He did. So the evidence was immaterial.

The question is: Did he exercise the of a prudent man? He seasonably [9] Joel Griffith, a quarry foreman, was a sought a place of safety, and, had it not been witness for the plaintiff. Subject to excepfor the glancing of the stone, the place select- tion he was allowed to state that he used a ed would have availed him. It was for the nine-sixteenth chain for hoisting stone in his jury to say whether or not his conduct meas- quarry. The defendant does not complain of ured up to the prudent man standard. this, but in cross-examination of this witness [5, 6] Kilroy v. Foss, 161 Mass. 138, 36 N. the defendant was denied the privilege of