« 이전계속 »
evidence or preponderation of argument on one side, equitable relief. 3 Grah. & Wat. on New Tr., 874. inclining the mind to receive it as the truth, but Of accident Mr. Justice Story says: “ By this term is leaving some room to doubt. It therefore falls short intended not merely inevitable casualty or the act of moral certainty, but produces what is called of Providence, or what is technically termed ris opinion. Demonstration produces certain knowl-major, or irresistible force, but such unforeseen edge, proof produces belief, and probability opin- events, misfortunes, losses, acts or omissions, as are ion.'"
'" So in State v. Jones, Iowa Supreme Court, not the result of any negligence or misconduct in December, 1883, the court said: “If it was made the party.' 1 Story Eq. Jur., § 78.” Fretwell v. probable to the jury that the defendant was so far in- Laffoon, 77 Mo. 28. sane as not to be accountable for his acts, we think CRUEL AND UNUSUAL PUNISHMENT. — Two years' that he should have been acquitted. Worcester | imprisonment for false pretenses is not. State v. defines probable as . having more evidence than the Williams, 77 Mo. 310. The court said: " The contrary.' Webster defines it as having more evi- interdict of the Constitution against the infliction dence for than against.' We think that it was of cruel and unusual punishments would apply to sufficient if the evidence of insanity preponderated." such punishments as amount to torture, or such as
FROM, IN. — Stealing "in a field,” is not equiva- would shock the mind of every man possessed of lent to stealing " from a field.” 19 S. C. 140. common feeling, such for instance as drawing and The court said: “We think therefore that the real quartering the culprit, burning him at the stake, purpose in using the words 'from the field,' was to cutting off his nose, ears or limbs, starving him to point to a particular kind of property, to-wit: the death, or such as was inflicted by an act of Parliaproducts of or outgrowth from the field, of the ment as late as the 22 Henry VIII, authorizing one kind designated, before they were gathered by the Rouse to be thrown into boiling water and boiled owner, and not to the stealing of that kind of to death for the offense of poisoning the family of property in any particular locality. Thus, if a bag the bishop of Rochester. As was said in the case of corn taken from the owner's barn, or purchased of James v. Commonwealth, 12 Serg. & Rawle, 220, in market, should be carelessly left by him in an ' it must be a very glaring and extreme case to open field, and stolen while in such field, the offender justify the court in pronouncing a punishment uncould not be indicted under this section of the constitutional on account of its cruelty. If under general statutes because that would not, in our the statute in question, a punishment by imprisonjudgment, be the offense there denounced. The ment for life of one who is convicted of the offense object of the statute was not to protect, specially, therein defined, should be inflicted, it might well be property which the owner had thus carelessly ex- said that such punislıment would be excessive, or posed to the depredation of thieves, because the rather entirely disproportioned to the magnitude of common law afforded sufficient protection for that the offense, yet notwithstanding this, there is high kind of property by an ordinary indictment for authority for saying that the question whether the larceny, but the object was to extend special pro- punishment is too severe and disproportionate to the tection to a kind of property which the owner could offense, is for the Legislature to determine.' Comnot so carefully guard and protect from theft, as it monwealth v. Hutchings, 5 Gray, 482.” must necessarily remain exposed in an open field ScHool. "" The term 'school,' er vi termini, until it could be gathered.”
does not imply a restriction to the rudiments of an UNDERSTANDING.— This is not equivalent to "con- education. When contrasted with the term 'college' tract" or agreement.”
” Black v. City of Charleston, or 'university,' it may and ordinarily does imply a 19 S. C. 412.
lower grade, but just where the one ends and the CULVERT. - In Omslee v. Baltimore and Ohio R. other begins, may not be easy to define. There is, Co., 60 Md. 358, the court said: “The court did in fact, as we all know, a great difference in the not think that the language, 'with the understand- extent of education and range of learning that may ing that in constructing a culvert in said road, on be and often is taught in what are properly called its new location, it shall be placed so as to drain, as common or public schools. There is also a wide far as practicable, the former bed of said falis,' difference between the range and extent of learning meant that an arched water-way of masonry, as and erudition taught in different colleges, semiusually understood to be its architectural meaning, naries and universities." Roach v. Board, etc., 77 was necessarily to be built and maintained. A Mo. 484. culvert' was understood, in its ordinary and com- OFFICE OR PLACE OF TRUST OR PROFIT. A mon parlance meaning, as a water-way, or water- night-watchman of a Federal post-office building, passage, whether of wood or stone, square or arched. appointed by the Federal treasury department, does It only meant that such provision should be made not “hold an office of trust or profit under the for the passage of the water that collected in the old United States.” Doyle v. Aldermen, 89 N. C. 133. bed of the river, through the railroad as newly con- The court said: “We shall not make the attempt structed, as would drain, “as far as practicable,' the to define the precise extent of the word employed, old river bed.”
after the unsatisfactory efforts of the counsel of the SURPRISE. In respect to new trials, "is nearly respective parties to do so; and we shall do all reallied to accident, which is a prominent subject for quired in this appeal by assigning the place held by
the plaintiff on the proper side of the line which DOMESTIC ANIMALS. - Linnets kept as decoys are separates those employments in the public service
domestic animals. Colam v. Paghett, 12 Q. B. Div. which are, from those which are not, offices or 66, places of trust or profit' in the sense of the Consti
PRESUMPTIONS ARISING FROM THE COURSE OF tution. It is apparent from the association that
BUSINESS-(Continued.) "places of trust or profit' are intended which approximate to but are not offices, and yet occupy the same RULE 1. The presumption is that any act done was general level in dignity and importance. The mani- done of right and not of wrong. fest intent is to prevent double-office-holding — that
1. A lease of dwelling 'houses contained a covenant offices and places of public trust should not accumu
on the part of the lessee that he would not, without late in a single person, and the superadded words of
the consent of the lessor, carry on any trade in any * places of trust or profit'were put there to avoid house. He afterward converted one of them into a evasion in giving too technical a meaning to the public house and grocery, and the lessor, with knowlpreceding word.”
edge of it, received the reut for more than twenty STATE. Includes “territory,” within the acts of years. The presumption was that the lessor had li.
censed this use.(1) pilotage. The U llock, 19 Fed. Rep. 207.
2. Au action is brought ou a contract for goods sold. CREDITOR. — One who pays the funeral expenses The goods are proved to be liquors. The presumption of an intestate is a “creditor." Lentz v. Pilert, 60 is that the plaintiff was duly licensed to sell them.(2) Md. 296.
“It is a maxim of the law of England,” it was said MANUFACTORY, FACTORY. - In Schoti v. Harrey,
in case 1,“ to give effect to every thing which appears Pennsylvania Supreme Court, February 25, 1884, it time, and to presume that what has been done was
to have been established for a considerable length of is said: “The word 'factory' is a contraction of done of right and not in wrong. That practically has manufactory, which Webster defines to be a build-caused a series of trespasses to constitute a right so ing or collection of buildings appropriated to that it may be said, a right has grown out of proceedthe manufacture of goods. But a manufactory ings which are wrongful. But in truth it is nothing
more than giving effect to notorious and avowed aois something more than a building. It includes not
quescence. No person would have permitted a coveonly the building, but the machinery necessary to want to be broken for more than twenty years, unless produce the particular goods manufactured, and the he was aware that it was broken as a matter of right. engine and other power requisite to propel such It is not necessary in point of form to send the case to machinery. A building with only bare walls and a a jury to find the facts which the judge may tell them roof would no more be a manufactory than it would they ought to presume.” be a hotel. Such a building would be a mere shell,
RULE II. The performance of a mere moral duty is
not presumed. and would not impose the duty of crecting fire
ILLUSTRATIONS. escapes upon any one.”
A. sells goods to B. and B, sells them to C. C. sends OWNER. - A tenant is not the owner" within his clerk to get them (they being still in A.'s possesa statute requiring fire-escapes. Schott v. Harvey, ise that C. would pay A. In an action by A. against
sion), and they are delivered to the clerk on his promPennsylvania Supreme Court, February 25, 1884.
C. no presumption arises that the clerk communicated PERSON OR PROPERTY. - A man's “ pants" are a bis bargain to C.(3)
person or property," within a statute as “I am clearly of opinion,” said Wells, J., in case 1, to injuries by dogs. Schaller v. Conners, 57 Wis. “that there was no evidence that C. authorized or 321.
ratified the promise made by his clerk. There be
ing no original authority in him to make the promise, BRIDGE. A pen of logs, with stringers and slabs, it was a thing done by him out of the ordinary scope across a pond, may be a bridge. Board of Comr's of his duty; and although there was a moral duty cast v. Brown, 89 Ind. 48. The court said: “There can upon him to communicate to his employer the fact of be no doubt that the structure, though somewhat his having made the promise, it was nothing more
than a moral duty, and the rule omnia praesumuntur simple and primitive in construction, constituted a
rite esse actu donec probetur in contrarium is never apbridge within the ordinary and visual meaning of plied to such a duty as that. There is therefore no the word. Any structure of wood, stone, brick or presumption, either that the clerk did or did not periron, raised over a river, pond, lake or across a form that duty; and in the absence of positive evivalley, is called a bridge. It is thus defined by dence that the promise was communicated to C., the Webster. See also American Cyclopædia, vol. 3, art.
jury would not have been warranted in assuming that
it was merely because the evidence was equally conBridge."
sistent with either supposition." TRAVELLER. — A man residing in P. county, RULE III. Documents regular on their face are preextensively engaged in the stave business, having sumed to have been properly executed, and to have understave yards in various places in that and an adjoin- gone all formalities essential to their validity. (4) ing county, and going from his residence in a buggy 1. A copy of an agreement in the hands of the opto and from these several places in attending to his posite party is offered in evidence. It is objected that business, and so engaged three-fourths of his time, (1) Gibson v. Doeg, 2 H. & N. 615 (1857). being twenty-two miles from home, is a
(2) Horan v. Weiler, 41 Penn. St. 470 (1862).
(3) Fitzgerald v. Dressler, 7 C. B. (N. 'S ) 375 (1859). within the statute of concealed weapons. Borst v.
(4) Freeman v. Thayer, 33 Me. 76 (1851); Munroe v. Gates, 48
id. 463 (1860); see Stevens v. Tafft, 3 Gray, 487 (1855); Sadler v. State, 89 Ind. 133. The court cite the reporter's Anderson, 17 Tex. 245 (1856): Diehl. v. Emig, 65 Penn. St. 327
(1870); Roberts v. Pillow, 1 Hempst. 634 (1851); Re British, etc., note, 25 Am. Rep. 652.
Assurance Co., 1 DeG., J. & S. 488 (1863); Lane's Case, id. 504
part of his "
it must be first proved to be stamped as required by 12. In a conveyance of land, the grantor described statute. The presumption is that the original is himself as executor of him in whom the title last was. stamped.(5)
The presumptiou is that there was a will.(16) 2. A statute provided that no recovery could be had “It would be very inconvenient," it was said in case on a foreign bill of exchauge unless stamped at the 2, “ for the plaintiff to be required to prove that the time it was transferred. In an action on a foreigu bill stamps were on the bills before their first iudorsement of exchange, the stamp was on the document when to an English holder, as required by the act. There produced at trial; but there was no evidence that it was prima facie evidence that the act had been comwas so when indorsed to plaintiff. The presumption plied with, and it was for the defendaut to give evi. was that it was so stamped at the time of the traus. dence to rebut that." fer.(6)
In case 3, Lord Ellenborough said: “If the annuity 3. An action of ejectment is brought on an assign- was not duly eurolled, that proof should come from ment of a term to secure the payment of an annuity. the other side. Here is an assignment executed by A statute required that such deeds to be valid should the plaintiff. I will presume it to be valid until the be enrolled. This will be presumed to have been contrary is shown.” done.(7)
In case 5, Brill, C. J., said: “I think there is prima 4. The law requires contracts to be stamped. A con- facie evidence that this deed was sealed at the time of tract is sued on. The presumption is that it was regu- its execution and acknowledgment by the parties. To larly stamped.(8)
constitute a sealing, neither wax nor wafer, nor a piece 5. A deed sent to a foreign country to be signed by of paper, nor even an impression is necessary. Here is married women is returned duly executed, and with an something attached to this deed which may have been attestation clause that it was “signed sealed aud de- | iutended for a seal, but which from its nature is livered.” There is no mark of a seal. The presumption incapable of retaining an impression. Coupled with is that the deed was sealed.(9)
the attestation and the certificate, I think we are 6. A deed concludes, “as witness our hands and justified in granting the application that the deed and seals," and the attestation clause speaks only of the other documents may be received and filed by the "signing and sealing." The presumption is that it proper officer.” “Byles, J., said: “I am of the same was duly delivered. (10)
opiuion. The sealing of a deed need not be by means 7. The attestation of a deed was in the usual form. of a seal; it may be done with the end of a ruler or The attesting witness testified that he saw the party any thing else. Nor is it necessary that was should be sign it, but does not remember that it was sealed and used. The attestation clause says, that the deed was delivered. These things will be presumed.(11)
signed, sealed, and delivered by the several parties; 8. A witness to prove the execution of a bond did and the certificate of the two special commissioners not recollect whether at the time it was executed it says that the deed was produced before them, and that bad any seal. The bond contained the words, " sealed
the married women "acknowledged the same to be with our seals," and bad a seal at the time of the trial. their respective acts and deeds." I think there was The presumption is that there was a seal when exe- prima facie evidence that the deed was sealed. And cuted.(12)
Smith, J., added: “Something was done with the in9. A person's signature to a deed is proved, i. e., that
tention of sealing the deed in question. I concur in it is his handwriting. The sealing and delivery of the granting this application, on the ground that the atdeed is presumed.(13)
testation is prima facie evidence that the deed was 10. Two deeds bear date on the same day. A priority sealed, and that there is no evidence to the conof execution will be presumed to bear out the clear in- trary.” tention of the parties. (14)
In case 8, Best, C. J., said that if sealing and delis. 11. Property is conveyed by lease and release in one
ery were not presumed, and the proof had to rest deed. Priority of execution of the lease will be pre
upon the fallible memory of a witness at a distance of sumed.(15)
time, as to whether all the requisites were performed
at that time, great danger would result to every kind (5) Crisp v. Anderson, 1 Stark. 35 (1815). "Am I to presume of instrument after the lapse of years; and a member that this agreement is unstamped in favor of a defendant who of the bar mentioned that he was once engaged in a refuses to produce it? I ought rather to presume omnia rite
case in which the lord chancellor held that similar acta particularly after notice. I shall assume it to have been stamped until the contrary appears," per Ellenborough, C. J.
evidence to that here produced was sufficient to raise and see Closinadeuc v. Carrell, 18 C. B. 36 (1856); Pooley v.
the presumption that every thing necessary was done, Goodwin, 4 Ad. & ELI 94 (1835); Hart v. Hart, 1 Hare, 1 (1841), and that to rebut such presumption the contrary must
(6) Bradlaugh v. DeRen, L. R., 3C. P. 286 (1868) and see be distinctly proved. Maunc Investment Co. v. Haveside, L. R., 5 H. L. Cas. 624 Where a deed with the regular evidence of its exe(1872) where Lord Cairns said: "I take it to be clear that if cution upon the face of it is found in the hands of an instrument is lost, and if there should be no evidence
the grautee, the presumption is that it has been duly given respecting it on one side or the other, the presumption delivered."(17) So where each one of several joint which ought always to be made and which always would be made by this court would be that the instrument was prop
owners of land takes into his possession separate parerly stamped.”
cels of the laud, and the land is then separately held (7) Griffin v. Mason, 3 Camp. 7 (1811).
aud claimed during many years, the presumption (8) Thayer v. Barney, 12 Mun. 513 (1867); Smith v. Jordan. arises that a partition thereof was made between the 13 id. 264 (1868).
parties, under which partition it has beeu thus held (9) Re Sandilands, L. R., 6 C. P. 411 (1871).
and enjoyed. (18) (10) Hall v. Bainbridge, 12 Q. B., 699 (1848).
“Much is to be presumed in favor of ancient deeds (11) Burling v. Paterson, 9 C. & P. 570 (1840).
if accompanied by possession, and the same rule may (12) Ball v. Taylor, 1 C. & P. 417 (1824).
be applied to wills and to levies of executious to some (13) Grellier v. Neale, 1 Peake, 199 (1818); Talbot v. Hodson, 7 extent.''(19) Taunt. 251 (1816); Re Huckvale, L. R , 1 P. & D. 375 (1867); Adam v. Kerr, i B. & P. 360; Andrews v. Motley, 12 C. B. (N.
(16) Maverick v. Austin, 1 Bailey, 59 (1828). S.) 526; Vermicombe v. Butler, 3 Sw. & T. 580; Spellsburg v. (17) Ward v. Lewis, 4 Peck. 518 (1827). Burdett, 10 BI. & F. 840.
(18) Russell v. Marks,3 Metc.(Ky.) 37 (1860); Munroe v. Gates, (14) Atkyns v. Horde, 1 Burr. 106 (1757).
48 Me. 463 (1860). (15) Barker v. Keets, 1 Freem. 251 (1678); Brice v. Smith, (19) Hill v. Lord, 48 Me. 83 (1861); Bond v. Searrell, 3 Burr, Welles, 1 (1737),
Rule IV. Dates are presumed to be correct, when
COMMUNICATION TO PUBLIC PROSECUTOR found in written instruments (a) but are no evidence of
PRIVILEGED. collateral facts. (b) ILLUSTRATIONS.
SUPREME COURT OF THE UNITED STATES,
FEBRUARY 4, 1884. (A.) 1. In an action to prove notice of certain facts to a
Vogel V. GRUAZ. person at a certain time, it was proposed to read cer- A communication made to a State's attorney, in Illinois, his tain letters written by him at that time. There was duty being to commence and prosecute" all criminal nothing to show that they were written at that time prosecutions, by a person who inquires of the attorney except their date. The presumption was that they
whether the facts communicated make out a case of were written at the time they bore date.(20)
larceny for a criminal prosecution, is an absolutely privi2. The questiou is, at what time a bill of exchange
leged communication, and cannot, in a suit against such
person to recover damages for speaking words chargwas issued. The presumption is it was issued at the
ing larceny, be testified to by the State's attorney, even time it bears date.(21)
though there be evidence of the speaking of the same 3. The question is, when a certain payment was words to other persons than such attorney. made, a receipt is produced dated September 8th. The
N error to the Circuit Court of the United States for presumption is that it was made on that day.(22)
the Southern District of Illinois. The opinion 4. The day of the execution of a deed is disputed.
states the case. The presumption is that it was executed on the day it bears date.(23)
BLATCHFORD, J. This is an action on the case, 5. There are certain indorsements on a promissory | brought by Timothy Gruaz against Rudolph Bircher, note of receipt of interest. It being material to know
to recover damages for the speaking and publishing of
false, malicious, scandalous and defamatory words, at what time they were made, the presumption is charging the plaintiff with being a thief, and with havthat they were made at the time they bear date.(24) ing stolen the money of the defendant, meaning the
In case 3, it was said. "The objection is that there crime of larceny. The suit was commenced in a State is no proof, except what appears on the face of the re
Court of Illinois, and was removed by the defendant ceipt itself, that it was given on the 8th of September.
into the Circuit Court of the United States for the * We have come to the conclusion that the pre-jury a verdict was rendered for the plaintiff, June 6,
Southeru District of Illinois. At the trial before a sumption is that it was fairly done, as the law never
1879, for $6,000 damages. Oh the next day the defendpresumes fraud; and that the receipt should be re- ant filed a motion for a new trial. On the 14th of June ceived, with proper directions from the court that if the defendant died, on the 12th of July an order abatmanufactured by the parties it should be entitled to ing the case was moved for, on behalf of the defendant, no weight. It is a transaction in the usual course of
and on the 16th of August the court overruled the mobusiness, as it is well known that receipts for the pay
tion for a new trial and the motion for an order of ment of money are frequently given without witness
abatement, and entered a judgment for the plaintiff,
against Bircher, for $6,000 and costs, as of June 7, 1879. of the payment.” “As to the time," said Taunton, J.,
The order for judgment recited that the hearing by in case 5, “I have no doubt, if the indorsements the court of the motion for a new trial was, when it were not written at the time they purport to bear was filed, postponed to a then future and convenient date, it lies on the defendant to prove it; in the day of the same term, and that the defendant died absence of all evidence to the contrary, I shall as
pending the hearing of the motion. Leave was given
to the executor of the defendant to prepare a bill of ex. sume that they were written at the time they bear
ceptions and to take a writ of error. The bill of ex, date.”
ceptions being signed, it was filed by the executor, and (B.)
the writ of error was issued. Various errors are as
signed, and among them that the Circuit Court did not 1. It is necessary to prove that G. was in Baltimore
grant the motion to abate the suit, and that it rendered on the 9th of November, 18:29. A promissory note a judgment against Bircher after his death. But it is dated Baltimore, Novemer 9, 1829, and signed by G. is unnecessary to pass on those questions, because we are produced. This does not raise a presumption that G. of opinion that the judgment must be reversed for was in Baltimore on that day.(25)
another error committed at the trial. John D. LAWSON.
Three witnesses for the plaintiff gave evidence tendSt. Louis, Mo.
ing to prove the speaking to them by the defendant of more or less of the words set forth in the declaration;
and afterward C. L. Cook was sworn as a witness for the (20) Bootez v. Glossop, 2 Ex. 192 (1848); Sinclair v. Baggaley,
plaintiff, and testified that he was State's attorney for 4 M. & W. 312; Malpas v. Clement, 19 L. J. (Q. B.) 435 (1850);
Madison county, Illinois; that he had a slight acquaintButler v. Mountgauet, 7 H. L. Cas. 647 (1859) Morgan v. Whit
ance with Bircher; and that he kuew Gruaz. The folmore, 6 Ex. 713 (1851); Baker v. Melburn, 2 M. & W. 853 (1837);
lowing proceedings then occurred: “Q. I will ask you if Hunt v. Massey, B. & Ad. 902 (1834).
you had any conversation with Doctor Bircher with (21) Anderson v. Weston, 6 Bing. (N. C.) 296 (1840); Laws v. regard to Gruaz, and if so when was it? Counsel for Rand, 3 C. B. (N. S.) 445 (1857). An exception exists in the defense asked witness if at that time he was occupyEnglish courts in the case of proof of a petitioning creditor's ing the same position he now holds. A. Yes, sir. Q. debt in bankruptcy proceedings. Wright v. Lawson, 2 M. & It was communicated to you while you held that posiW. 739 (1837).
tion and were acting in that capacity, whatever was (22) Caldwell y. Gamble, 4 Watts, 292 (1835).
communicated to you by Bircher? A. Yes, sir. (De
fendant's counsel object to the witness testifying to (123) Costigan v. Gould, 5 Denio, 290 (1848); Pullen v. Hutch
matters disclosed to him by the defendant under the inson, 25 Me. 249 (1845).
circumstances stated, on the ground that such com(24) Smith v. Battens, 1 Moo. & R. 343 (1834).
munications are to be treated as privileged.) The (25) Giben v, Albert, 5 W. & S. 333 (1843).
court: I will ask the witness if he regarded it professionally as a privileged communication ? A. I had him to the grand jury room." The bill of exceptions never met defendant before, he was introduce i to me also contains the following: “In reference to the testiby a citizeu of our place, and he informed me that he mony of State's attorney C. L. Cook, the court inwanted to talk with me with regard to a matter he structed the jury as follows: 'I admitted that eri. wanted to bring before the grand jury. (Objected to.)dence with an explanation, and with the explanation The court: I will allow the wituess to state what the doc- made in the admission of it, I think I am content, and tor said on that occasion. Of course, if he made the com- I think the jury may take it into consideration; but munication to the witness in good faith, there would if they think the defendant was actuated by honest be no malice about it, and I shall instruct the jury to motives, in making the declaration he did, they will disregard it. The objection is overruled. To which disregard it.' To the giving of which last instructiou ruling of the court the defendant at the time ex- the defendant excepted, for the reason that the incepted. A. As I stated, I had at that time no acquaint-struction ignores the element of want of probable ance with defendant whatever. He inquired for the cause, and for the reason also that the jury should State's attorney, and was introduced to me, and he have been instructed to disregard Cook's testimony spoke of his affairs. He said he wanted to bring a entirely." matter before the grand jury in regard to Mr. Gruaz. We are of opinion that what was said by Bircher to I talked with him in regard to the nature of the mat- Mr. Cook was an absolutely privileged communicater, and he talked pretty freely in regard to tion. It was said to Mr. Cook while he was State's atit, and I directed him to the grand jury room. He torney, or prosecutor of crimes, for the county, aud said a good many things. He was evidently in earnest while he was acting in that capacity. Bircher euat the time, he expressed himself very freely in regard quired for the State's attorney, and was introduced to to him. I would not like to swear to the exact words him, and stated to him that he wanted to talk with used, or that anybody used at the time. I can give the him about a matter he wanted to bring before the grand substance of what he said, I suppose. He wanted to jury in regard to Gruaz. He laid the matter before prosecute Gruaz for stealing, was the amount of it. Mr. Cook, and charged Gruaz with having stolen his I recollect this: He charged him with having stolen money, and was asked how, and stated how, and in. his money, and I asked him how, and he told me how quired of Mr. Cook if there was any law in Illinois by it had been done. Gruaz was his agent and handled his which a man could be prosecuted for that. The grand funds, rented his farms, and had failed to account for jury was then in session, and Mr. Cook ad rised a large amount of money, he told me, and he charged Bircher that he had a good case, and directed him to him in this conversatiou with having stolen his money, the grand jury room, and Bircher went before the and he said he wanted to know if there was any law grand jury. If all this had taken place between in this State tu prosecute a man for that. I have no Bircher and an attorney consulted by him who did not objection to state any words. I remember bis making hold the public position which Mr. Cook did, clearly, tbe charge that he had stolen his money, but I can't the communication would have been privileged, and swear that the word “thief' was used at that time; not to be disclosed against the objection of Bircher. that it was iu substance, undoubtedly. My impression Under the circumstances shown, Mr. Cook was the is that this was the March Term, 1878, of the Circuit professional adviser of Bircher, consulted by him, on Court of Madison county, either that or October Term, a statement of his case, to learn his opinion as to 1877; my recollection and decided impression is that whether there was ground in fact and in law for mak it was the Spring Term, 1878. Dr. Bircher went into ing an attempt to procure an indictment against Gruaz. the grand jury room and gave his statement to the The fact that Mr. Cook held the position of public grand jury. He was anxious of course to have indict. prosecutor, and was not to be paid by Bircher for inment found, and he evidently believed, or so expressed formation or advice, did not destroy the relation himself. Counsel for defendant objected to witness which the law established between them. It made stating his opinion about what defendant evidently be- that relation more sacred, on the ground of public lieved. The court: He said he went before policy. The avenue to the grand jury should always the grand jury, and said he seemed to be in be free and unobstructed. Bircher might have gone earnest in his movements, but he didn't say directly before it, without consulting with Mr. Cook, what took place before the grand jury. Don't but if he chose to consult him, instead of a private know, I suppose. Witness. No, I dont know.counsel, there was a great propriety in his doing so. Cross-examination. Major Prickett introduced Bircher Any person who desires to pursue the same course to me; never saw him before in my life. I was cer- should not be deterred by the fear of having what he tain he came to see me as prosecuting attorney in good may say in the confidence of a consultation with a profaith. That was his business, as he stated it to me. fessional adviser, supposed to be the best qualified for After he made his statement to me, I advised him to the purpose, disclosed afterward in a civil suit, against go before the grand jury; directed him to their room. his objection. Oliver V. Pate, 43 Ind. 132. By the He went there by my advice. Hold on-I don't say statute of Illinois in force at the time of this occurthat; I advised him that he had a good case. He came rence, it was made the duty of each State's attoruey to to me and I showed him where the grand jury room "commence and prosecute” all criminal actions, suits, was. He stated his case to me as State's attorney. I indictments and prosecutions, in any court of record then directed him where to go, and said I should in his county, in which the people of the State or prosecute it as vigorously as possible, if the indictment county might be concerned. Rev. Stat. of 1874, ch. was found. In regard to the advice I gave him, I 14, § 5, subd. 1. Under this provision it was the pror. rather encouraged him to drop the thing; I told him ince and the privilege of any person who knew of facts he better sue Mr. Gruaz first, and see if he couldu't get tending to show the commission of a crime, to lay judgment against him, and so put it in a better shape those facts before the public officer whose duty it was to prosecute him. He stated his case, and I thought to commence a prosecution for the crime. Public from his statement that he would have few, if any, policy will protect all such communications, absowitnesses besides bimself, and that it would be doubt- | lutely, and without reference to the motive or intent ful, bowever bonestly he might believe that he had of the informer or the question of probable cause; the cause, it would be doubtful whether the jury would ground being that greater mischief will probably rebring a bill; so I advised him to bring a civil suit; but sult from requiring or permitting them to be disclosed said I, you are here, and you mustu't think hardly of thau from wholly rejecting them. Mr. Cook learned me if the grand jury don't find a bill; and I directed from Bircher the things to which he testified because