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THE NEW CODE.

WE E have promised ourselves and our readers to look over the new Code, and make some suggestions upon it. We have heretofore expressed our general satisfaction with the scope and execution of the work, "without prejudice, however," to our right to find some fault with it. Last week a communication was published in these columns criticising the Code in several particulars, with some of which criticisms we agree. For example, we heartily agree that the most salutary work of the old Code, namely, the abolition of the old forms of pleadings should be inviolably preserved. If that end is to be at all impaired by the requirement of a perilous prayer at the end of the complaint, we are opposed to the requirement. The prayer should be a mere matter of form- not at all of substance. Praying is not theoretically dangerous in theology, and we should be careful not to render it dangerous in law. Let us have no blackletter, magical importance attached to the form of words, by which, after stating our case, we ask for relief, but let the court grant relief according to the facts stated and proved. No undue advantage or surprise can arise from this. Each party is equally notified and equally enlightened. This has been the practice for twenty years and more, and we have never heard any complaint of it. We think that the proposed alteration will result only in giving technical advantages, and we are totally and earnestly opposed to all technicalities and all technical advantages.

This naturally leads us to consider for a moment the section on demurrers. The change above referred to is also recognized in that section of the new Code, by the addition of the ninth and tenth grounds of demurrer, namely, "That the facts stated in the complaint do not entitle the plaintiff to the judgment demanded," and "that the plaintiff demands judgment for two or more inconsistent kinds of relief." In connection with this, we object to the seventh ground of demurrer, namely, "that causes of action have been improperly united." The old Code provided plentifully, and, on the whole, we think, properly, for demurrers. We are not much in favor of them. They answer, practically, very little of useful purpose. They create delays, accumulate costs and obstruct justice oftener than they do any good. The only instance in which a demurrer is justifiable, is where the sustaining of it must leave the party wholly without any just claim or standing in court. But we are unutterably hostile to all "marking time" in the law. What suitors demand and have a right to is progress. Human life is too short, and the courts are too full of business to warrant any of this petty quibbling over forms. So we demur to any change about demurrers. It seems that the intelligent re

viser himself had a pang on this subject, for he seeks to alleviate matters in the next section (§ 489); but we prophesy that this latter section will require a great deal of construction, and give rise to a great deal of dispute.

Now, we approach a subject very near to our | hearts, and that is the testimony of parties. We have heretofore expressed ourselves against the restrictions of the famous section 399 of the old Code, and we are sorry to see it perpetuated and made more sweeping in the new Code. The legal profession should not emulate the Bourbons, but should learn from experience. It took us a long time to tolerate the idea of an interested person testifying in his own behalf, but we embraced it by slow degrees. Then we had a still harder struggle about the same rule, as applicable to persons indicted for crimes, but at length we succumbed. Then we very reluctantly let husbands and wives testify for or against each other, with certain exceptions. But section 399 is our last ditch. We had remodeled, and reformed, and reconstructed it, over and over again, through a long series of years, and have not yet succeeded in shaping it so that it is certain what it means. Within a few days the writer has heard a cause tried at circuit, where a half a day was exhausted in determining whether a donee inter vivos came within the classes of favored persons, and the judge at length decided that she came within the spirit, and he was inclined to think, within the letter, as an "assignee;" and another judge told the writer that he had had a great deal of trouble in a recent cause to determine just what "survivor" means. It is probable that the substituted section is a great improvement in clearness and comprehensiveness, but our objection is radical. If a party, or an interested person, is to be a witness at all, there is no consistency in excluding him simply because his adversary has died or become incompetent to testify. This is a relapse into, or rather a clinging to, the old absurd barbarism. We desire to write ourselves down again as radically hostile to any exclusion of any person, as a witness, on any ground or under any circumstances whatever, except as a punishment for crime.

If a man has committed a felony, let him be disqualified, as a penalty, but never disqualify a man, who is perfectly competent to-day, from testifying to-morrow, because his antagonist has died or gone mad over night. The inevitable struggle with common sense on this point is amusingly evidenced by Supreme Court rule 88, which, in the face of the statute prohibiting it, absolutely requires husbands and wives, complainants in divorce suit, to testify to certain points. There is only one way to dispose of this Gordian knot, and that is to apply the Alexandrian remedy. There is no such restriction as section 399 provides, in the law of Massachusetts, and we are informed by high authority that the rule of their practice works well,

and that there is no objection to it among the profession, either on the bench or at the bar. Of course, the adoption of these views would necessitate the striking out of several other sections of the same article.

One other point now occurs to us, namely, the perpetuation of the liability of a guardian, for an infant plaintiff, for costs. This is old doctrine, and was preserved in our former Code, but we would ask, cui bono, or, rather, quo bono? The policy of the law is to afford every facility to infants for the enforcement of their rights, and most jealously to guard their interests. But here is a rule which operates in precisely the reverse direction. Not only is an infant prohibited from suing until he finds a friend who is able and willing to pay the costs at all hazards, in case of defeat, but that friend must be willing to go to jail if he happens not to be able to pay. This naturally tends to deter infants from bringing actions. Not only that, but how perfectly and richly absurd the idea is! No other class of persons is restrained from suing until they furnish security for costs, except non-residents. adult resident may sue to his heart's content, whether rich or poor, and his adversary must defend himself at his own cost. If the plaintiff has completed his twenty-one years, he may sue without let or hindrance, although he is entirely destitute of property; but if he lacks a year, or a month, or a day of that age, he must furnish a sponsor, able to pay the costs, if the suit is unsuccessful, and willing to suffer imprisonment if he cannot pay them, or the infant must go unremedied. We pronounce this idea a ridiculous and an outrageous one, without even a homœopathic reason to support it, and entirely at variance with all the traditions and pretenses of the law. So we move to amend by striking out this provision.

Every

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interesting question of statutory construction arose. By a statute of Missouri approved March 10, 1859, entitled "An act to incorporate the Louisiana and Missouri River Railroad Company," it was provided that it should "be lawful for the county court of any county in which any part of the route of said railroad may be, to subscribe to the stock of said company, and issue bonds of such county to raise funds to pay the stock thus subscribed." In July, 1865, a constitutional provision was adopted in Missouri in these words: "The general assembly shall not authorize any county, city or town to become a stockholder in, or to loan its credit to, any company, association or corporation, unless two-thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, shall assent thereto." In January, 1868, the county court of Callaway county, through which the company mentioned thereafter built their railroad, authorized a subscription to the

stock of said company to be made by the county, and on the same day it was so made and certificates of stock issued. On the 24th of March, 1868, the act of 1859 was amended, and a branch railway authorized to be constructed by the same company, and on the 1st day of January, 1859, bonds were issued by the county court on behalf of the county in payment of such stock, each bond reciting that it was issued by Callaway county, by authority of the act of the general assembly of the State of Missouri, approved March 10, 1859, as amended by an act approved March 24, 1868. The voters of Callaway county never gave their assent to the issuing of the bonds. The constitutional provision in question has been held by the Supreme Court of Missouri to be prospective and not retroactive, and that the charter of a company which is in existence before its adoption is not affected by it (State v. Macon Co. Court, 41 Mo. 453), and the constitution of 1865 contains, in connection with the provision already quoted, the following: "All statute laws of the State now in force not inconsistent with the constitution shall continue in force until they shall expire by their own limitations or be amended or repealed by the general assembly." In The State of Missouri v. The Cape Girardeau and State Line Railroad, 48 Mo. 468, it was held that the constitutional provision prohibiting special enactments did not extend to amendments of laws in force when it was adopted. The Federal court, therefore, held that in this case the act of March, 1868, referred to in the Callaway county bonds, in connection with the act of March 10, 1859, was an amendment of the latter act, and that the bonds were valid, notwithstanding there was no assent by the voters of Callaway county to their issue. Mr. Justice Hunt delivered the opinion of the court. Justices Miller, Davis, Field and Bradley dissented.

ESCAPED CRIMINAL NOT ENTITLED TO MAINTAIN WRIT OF ERROR.

THE Supreme Court of the United States in the case

of Smith, plaintiff in error, v. United States, just decided, refuse to hear a criminal case where the party suing out the writ of error has placed himself without the jurisdiction of the court. Waite, C. J., in delivering the opinion, says: It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party suing out the writ is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error has escaped and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case.

This cause was docketed here December 29, 1870. In due time a brief was filed on behalf of the plaintiff in error, and the cause has been regularly continued at every term since, no one appearing here in person to represent the plaintiff. At this term we dismissed the writ on motion of the United States, for want of prosecution, but have since reinstated it on motion of the counsel for the plaintiff in error, who now moves to have it set down for argument. This motion we deny, and order that unless the plaintiff in error sub

mit himself to the jurisdiction of the court below on or before the first day of our next term, the cause be left off the docket after that time. The People v. Genet, 59 N. Y. 80; Leftwich's Case, 20 Gratt. 723; Commonwealth v. Andrews, 97 Mass. 544. See, also, 31 Me. 592.

OPPORTUNITY TO BE HEARD NECESSARY TO CONFER JURISDICTION.

UNITED STATES SUPREME COURT-OCTOBER TERM, 1876.

WINDSOR, plaintiff in error, v. McVEIGH.

1. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. 2. The jurisdiction acquired by the seizure of property in a proceeding in rem for its condemnation for alleged forfeiture, is not to pass upon the question of forfeiture absolutely, but to pass upon that question after opportunity has been afforded to its owner and parties interested to appear and be heard upon the charges for which the forfeiture is claimed. To that end some notification of the proceedings, beyond that arising from the seizure, prescribing the time within which the appearance must be made, is essential.

3. In proceedings before the District Court in a confiscation case, monition and notice were issued and published, but the appearance of the owner, for which they called, when made was stricken out, his right to appear being denied by the court: Held, that the subsequent sentence of confiscation of his property was as inoperative upon his rights as though no monition or notice had ever been issued. The legal effect of striking out his appearance was to recall the monition and notice as to him.

4. The doctrine that where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it.

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formation against the property was filed in the name of the United States, setting forth that the plaintiff in this case was the owner of the property in question; that he had, since the passage of the above act, held an office of honor and trust under the government of the so-called Confederate States, and in various ways had given aid and comfort to the rebellion; that the property had been seized in pursuance of the act, in compliance with instructions from the attorney-general, and, by reason of the premises, was forfeited to the United States, and should be condemned. It closed with a prayer that process of monition might issue against the owner or owners of the property, and all persons interested or claiming an interest therein, warning them at some early day "to appear and answer" the libel; and, as the owner of the property was a non-resident and absent, that an order of publication in the usual form be also made. Upon this libel the district judge ordered process of monition to issue as prayed, and designated a day and place for the trial of the cause, and that notice of the same, with the substauce of the libel, should be given by publication in a newspaper of the city, and by posting at the door of the court-house. The process of monition and notice were accordingly issued and published. Both described the land and mentioned its seizure, and named the day and place fixed for the trial. The monition stated that at the trial all persons interested in the land or claiming an interest might "appear and make their allegations in that behalf." The notice warned all persons to appear at the trial "to show cause why condemnation should not be decreed, and to intervene for their interest."

The owner of the property, in response to the monition and notice, appeared by counsel and filed a claim to the property and in answer to the libel. Subsequently, on the 10th of March, 1864, the district attorney moved that the claim and answer, and the appearance of the respondent by counsel, be stricken from the files, on the ground that it appeared from his answer that he was, at the time of filing the same, a resident within the city of Richmond, within the Confederate lines, and a rebel." On the same day the motion was granted, and the claim and answer ordered to be

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This was an action of ejectment to recover certain real property in the city of Alexandria, in the State of Virginia. It was brought in the corporation court of that city, and a writ of error from the Court of Ap-stricken from the files. The appearance of the repeals of the State to review the judgment obtained having been refused, the case was brought here directly by a writ of error from this court. Authority for this mode of procedure will be found stated in the case of Gregory v. McVeigh, reported in the 23d of Wallace.

The plaintiff in the corporation court proved title in himself to the premises in controversy, and consequent right to their immediate possession, unless his life estate in them had been divested by a sale under a decree of condemnation, rendered in March, 1864, by the District Court of the United States for the Eastern District of Virginia, upon proceedings for their confiscation. The defendant relied upon the deed to his grantor, executed by the marshal of the district upon such sale.

The proceedings mentioned were instituted under the act of Congress of July 17, 1862, "to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes."

In July, 1863, the premises in controversy were seized by the marshal of the district, by order of the district attorney, acting under instructions from the attorney-general. In August following, a libel of in

spondent was by his answer. The court immediately entered its sentence and decree, condemning the property as forfeited to the United States, reciting that the usual proclamation having been made, the default of all persons had been duly entered. The decree ordered the issue of a venditioni exponas for the sale of the property, returnable on the 16th day of the following April. At the sale under this writ, the grantor of the defendant became the purchaser.

The question for determination is whether the decree of condemnation thus rendered, without allowing the owner of the property to appear in response to the monition, interpose his claim for the property, and answer the libel, was of any validity. In other words, the question is whether the property of the plaintiff could be forfeited by the sentence of the court in a judicial proceeding to which he was not allowed to appear and make answer to the charges against him, upon the allegation of which the forfeiture was demanded.

There were several libels of information filed against the property of the plaintiff at the same time with the one here mentioned. They were identical in their allegations, except as to the property seized, and the

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same motion to strike from the files the appearance, claim and answer of the respondent was made in each case, and on the same day, and similar orders were entered and like decrees of condemnation. One of these was brought here, and is reported in the 11th of Wallace. In delivering the unanimous opinion of this court, upon reversing the decree in the case, and referring to the order striking out the claim and answer, Mr. Justice Swayne said: "The order in effect denied the respondent a hearing. It is alleged he was in the position of an alien enemy, and could have no locus standi in that forum. If assailed there, he could defend there. The liability and right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice." 11 Wallace, 267.

proceeding. But the denial of the right to appear and be heard at all is a different matter altogether.

The position of the defendant's counsel is, that as the proceeding for the confiscation of the property was one in rem, the court, by seizure of the property, acquired jurisdiction to determine its liability to forfeiture, and consequently had a right to decide all questions subsequently arising in the progress of the cause, and its decree, however erroneous, cannot, therefore, be collaterally assailed. In supposed support of this position opinions of this court in several cases are cited, where similar language is used respecting the power of a court to pass upon questions arising after jurisdiction has attached. But the preliminary proposition of the counsel is not correct. The jurisdiction acquired by the court by seizure of the res was not to condemn the property without further proceedings. The physical seizure did not of itself establish the allegations of the libel, and could not, therefore, authorize the immediate forfeiture of the property seized. A sentence rendered simply from the fact of seizure would not be a judicial determination of the question of forfeiture, but a mere arbitrary edict of the judicial officer. The seizure in a suit in rem only brings the property seized within the custody of the court, and informs the owner of that fact. The theory of the law is that all prop

The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a ju-erty is in the possession of its owner in person or by dicial determination of his rights, and is not entitled to respect in any other tribunal.

That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights, is admitted. Until notice is given the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject-matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has any thing to say, why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, appear and you shall

be heard, and when he has appeared, saying your appearance shall not be recognized and you shall not be heard. In the present case the District Court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered. It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict, clothed in the form of a judicial sentence.

The law is and always has been that whenever notice or citation is required, the party cited has the right to appear and be heard, and when the latter is denied, the former is ineffectual for any purpose. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him. The period within which the appearance must be made and the right to be heard exercised, is, of course, a matter of regulation, depending either upon positive law, or the rules or orders of the court, or the established practice in such cases. And if the appearance be not made, and the right to be heard be not exercised within the period thus prescribed, the default of the party prosecuted, or possible claimants of the property, may, of course, be entered, and the allegations of the libel be taken as true for the purpose of the

agent, and that its seizure will, therefore, operate to impart notice to him. Where notice is thus given the owner has the right to appear and be heard respecting the charges for which the forfeiture is claimed. That right must be recognized and its exercise allowed before the court can proceed beyond the seizure to judgment. The jurisdiction acquired by the seizure is not to pass upon the question of forfeiture absolutely, but to pass upon that question after opportunity has been afforded to its owner and parties interested to appear and be heard upon the charges. To this end some notification of the proceedings, beyond that arising from the seizure, prescribing the time within which the appearance must be made, is essential. Such notification is usually given by monition, public proclamation, or publication in some other form. The manner of the notification is immaterial, but the notification itself is indispensable.

These views find corroboration in the opinion of Mr. Justice Story in the case of Bradstreet v. Neptune Insurance Co., 3 Sumn. 601. In that case the action was upon a policy of insurance upon a vessel, the declaration alleging its loss by seizure of the Mexican government. The defendants admitted the seizure, but averred that it was made and that the vessel was condemned for violation of the revenue laws of Mexico, and, to prove the averment, produced a transcript of the record of the proceedings of the Mexican court against the vessel, and of the decree of condemnation. Among the questions considered by the court was the effect of that record as proof of the laws of Mexico, and of the jurisdiction of the court and the cause of seizure and condemnation. After stating that the sentence of a foreign court of admiralty and prize in rem was in general conclusive, not only in respect to the parties in interest, but also for collateral purposes and in collateral suits, as to the direct matter of title and property in judgment, and as to the facts on which the tribunal professed to proceed, Mr. Justice Story said, that it did not strike him that any sound distinction could be made between a sentence pronounced in rem by a court of admiralty and prize, and a like sen

tence pronounced by a municipal court upon a seizure or other proceeding in rem; that in each the sentence was conclusive as to the title and property, and it seemed to him was equally conclusive as to the facts on which the sentence professed to be founded. But the learned judge added that it was an essential ingredient in every case, when such effect was sought to be given to the sentence, that there should have been proper judicial proceedings upon which to found the decree; that is, that there should have been some certain written allegations of the offense, or statement of the charge for which the seizure was made, and upon which the forfeiture was sought to be enforced; and that there should be some personal or public notice of the proceedings, so that the parties in interest, or their representatives or agents, might know what the offense was with which they were charged, and might have an opportunity to defend themselves and to disprove the same. "It is a rule," said the learned judge, "founded in the first principles of natural justice, that a party shall have an opportunity to be heard in his defense before his property is condemned, and that charges on which the condemnation is sought shall be specific, determinate and clear. If a seizure is made and condemnation is passed without the allegation of any specific cause of forfeiture or offense, and without any public notice of the proceedings, so that the parties in interest have no opportunity of appearing and making a defense, the sentence is not so much a judicial sentence as an arbitrary sovereign edict. It has none of the elements of a judicial proceeding, and deserves not the respect of any foreign nation. It ought to have no intrinsic credit given to it, either for its justice or for its truth, by any foreign tribunal. It amounts to little more, in common sense and common honesty, than the sentence of the tribunal which first punishes and then hears the party - castigatque auditque. It may be binding upon the subjects of that particular nation. But upon the eternal principles of justice it ought to have no binding obligation upon the rights or property of the subjects of other nations, for it tramples under foot all the doctrines of international law, and is but a solemn fraud, if it is clothed with all the forms of a judicial proceeding."

In another part of the same opinion the judge characterized such sentences "as mere mockeries, and as in no just sense judicial proceedings;" and declared that they ought to be deemed, both ex directo in rem and collaterally, to be mere arbitrary edicts or substantial frauds."

This language, it is true, is used with respect to proceedings in rem of a foreign court, but it is equally applicable and pertinent to proceedings in rem of a domestic court, when they are taken without any monition or public notice to the parties. In Woodruff v. Taylor, 20 Vt. 65, the subject of proceedings in rem in our courts is elaborately considered by the Supreme Court of Vermont. After stating that in such cases notice is given to the whole world, but that, from its nature, it is to the greater part of the world constructive only, and mentioning the manner in which such notice is given in cases of seizure for violation of the revenue laws, by publication of the substance of the libel, with the order of the court thereon, specifying the time and place of trial, and by proclamation for all persons interested to appear and contest the forfeiture claimed, the court observed that in every court, and in all countries where judgments were respected, notice of some kind was given, and that it was just as

material to the validity of a judgment in rem that constructive notice at least should appear to have been given, as that actual notice should appear before the record of a judgment in personam. "A proceeding," continued the court, "professing to determine the right of property, where no notice, written or constructive, is given, whatever else it might be called, would not be entitled to be dignified with the name of a judicial proceeding. It would be a mere arbitrary edict, not to be regarded anywhere as the judgment of a court."

In the proceedings before the District Court in the confiscation case, monition and notice, as already stated, were issued and published, but the appearance of the owner, for which they called, having been refused, the subsequent sentence of confiscation of his property was as inoperative upon his rights as though no monition or notice had ever been issued. The legal effect of striking out his appearance was to recall the monition and notice as to him. His position with reference to subsequent proceedings was then not unlike that of a party in a personal action after the service made upon him has been set aside. A service set aside is never service by which a judgment in the action can be upheld.

The doctrine invoked by counsel, that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause-and its judgment, however erroneous, cannot be collaterally assailed-is undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application. All courts, even the highest, are more or less limited in their jurisdiction; they are limited to particular classes of actions, such as civil or criminal; or to particular modes of administering relief, such as legal or equitable; or to transactions of a special character, such as arise on navigable waters, or relate to the testamentary disposition of estates; or to the use of particular process in the enforcement of these judgments. Norton v. Meador, Circuit Court for California. Though the court may possess jurisdiction of a cause, of the subject-matter and of the parties, it is still limited in its modes of procedure and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judg ment of imprisonment in the penitentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in the case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. The judgments mentioned, given in the cases supposed, would not be merely erroneous, they would be absolutely void, because the court in rendering them would transcend the limits of its authority in those cases. See the language of Mr. Justice Miller, to the same purport, in the case of Ex parte Lange, 18 Wall. 163. So it was held by this court in Bigelow v. Forrest, 9 Wall. 351, that a judgment in a confiscation case condemning the fee of the property was void for the remainder after the termination of the life-estate of the owner. To the objection that the decree was conclusive that the entire fee was confiscated, Mr. Justice Strong, speak

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