for the Supreme Court of the United States, refers in the great Minnesota case, wherein he affirms the right of a party to "a judicial investigation by due process of law under the forms and with the machinery provided by the wisdom of successive ages for the investigation judicially of the truth of a matter in controversy. The difference between judicial courts constituted of judges, and any form of legislative tribunal not constituted of judges but of commissioners or other officials by whatsoever name they may be called, is of vital moment to the rights and liberties of the citizen.

The distinguishing excellence of our system of laws, English and American, is that under it, law is everywhere predominant and supreme. Bear in mind that this is not only the spirit, but the very essence of the constitution and legal institutions of England. Professor Dicey's valuable work, "The Law of the Constitution," which appeared in 1886, was written to bring out, illustrate, and enforce this truth. Parliament is the legal sovereign, but its will can only be expressed in an act of Parliament, and this at once and necessarily subjects such enactment, both as to its construction and enforcement, to the judicial courts. The Crown can act only through ministers who are legally responsible for the act, and thus the Crown indirectly and the minister directly are brought under the supremacy of the law (Ib. p. 335).

The glory of the English law, establishing rights of Englishmen, consists in the following principles:

arbitrary power. "Englishmen are ruled by the law, and by the law alone: a man may be punished for a breach of the law, and he can be punished for nothing else." Not only so, but equally, if not more, important is the principle that this breach of the law must be established as to all classes and all persons, official and nonofficial, in the ordinary courts of law. Arbitrary power and special administrative tribunals, such as we find in France and other countries, administering what the French call droit administratif, do not exist. In England the same law applies to all persons, and it is administered for and against all persons in the great law courts. "The law of England knows nothing of exceptional offenses punished by extraordinary tribunals” (Ib. p. 227). So also, direct personal responsibility for torts-for any invasion of the legal rights of another-exists without limit or exception. No command of an official, not even the Crown, can be pleaded in bar to any wrongful act.

In the study of our legal system, it is specially noteworthy that these rules of law, so all-embracing and undistinguishing in their application, and so effective in their protective energy, have, in the main, been the work of the courts which have defined and enforced them. They have their source in the adjudged and established rights of individuals. These rights, secured by the decisions of the courts, make the Constitution of England, and are not created by and are not the product of the Constitution.

These great and glorious characteristics

* Chicago, etc., Railway Company v. Minnesota (extent

of legislative power to fix railway rates), 134 U. S. Rep. 418, 457, 1889.

ciples-these distinguishing and crowning excellencies of the English law, have been inherited or adopted in all their ampli

tude in this country. Not only so, but we have in our written constitutions, Federal and State, placed them beyond the ordinary range of legislative power, thus giving them a legal security and solidity, theoretically, at least, greater than they have in the old country.

"The government of the United States," said Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 137, "has been emphatically termed a government of laws and not of men." "No man in this country," said Mr. Justice Miller, delivering the judgment of the Supreme Court in U. S. v. Lee, 106 U. S., 196, 220, "is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers

of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it."

In these great, vital and fundamental respects I insist that the law of England and America is far superior to the Roman law, either as it anciently existed or as it exists in the States of modern, continental Europe.

The English language is the language of freedom, and the English and American law is the law of a free people. As that law exists to-day and in its developed and perfected shape it is the best system of enlightened and practical justice that the world has ever seen. As such I commend it to your admiration, your study, your regard, and your reverence.

§ 8. In a criminal contempt, it is the satisfaction of the offended dignity of the law and vindication of the respect due to courts that calls for punishment. It is not necessary, as in civil contempt, that the rights or remedies of a party should be impeded. (In re Wood, 5 Abb. Pr. 84; see King v. Barnes, 113 N. Y. 476; Fischer v. Raab, 81 N. Y. 235.)

§ 14, subd. 1. The willful refusal of a receiver to obey an order of the court for payment out of funds in his hands is contempt by one appointed to perform a "ministerial service." (Clark v. Bininger, 75 N. Y. 344.)

An attorney is liable for contempt in wrongfully obtaining from the sheriff the proceeds of goods levied upon and disobeying an order to repay. (Leland v. Smith, 3 Daly 309.)

Subd. 4. Where a final judgment required a formal transfer of stock upon the books of a corporation by its officers, and where two orders fixed a time and place for such transfer and required it to be made, Held, that the act of one of the officers in advising and procuring the others to disobey the judgment was a civil contempt. (King v. Barnes, 113 N. Y. 476.)

Subd. 8. An attorney is liable for abetting the violation of an injunction; but his complicity must be shown. (Slater v. Merritt, 75 N. Y. 268; People v. Randall, 73 N. Y. 416.)

§ 15. If an attorney without good grounds attempts to have another disbarred, the court may impose upon him the costs and disbursements in the proceedings, and he may be imprisoned until they are paid. (In re Kelly, 62 N. Y. 198.)

§ 22. The practice of referring in an answer to parts of the complaint which the pleader intends to admit or deny, as "at" or "between" certain folios, does not conform to the spirit of this section, which requires pleadings to be made out "in words at length and not abbreviated," and serves no useful purpose on appeal where original folios do not appear in the case. (Caulkins v. Bolton, 98 N. Y. 511.) § 46. A judge who is related cannot sit even with consent of parties; and if he does, the judgment rendered will be set aside. (Oakley v. Aspinwall, 3 N. Y. 547.)

The prohibition of this section is said to apply to a referee acting as a judge. (Leonard v. Mulry, 93 N. Y. 396.) It does not, however, apply to administrative officers, happening to perform an act requiring judgment, as a commissioner of highways; he may, therefore, lay out a highway through his own lands. (Foot v. Stiles, 57 N. Y. 399; see, also, O'Reilly v. Kingston, 114 N. Y. 439.)

Where a judicial officer has not so direct an interest that the result must necessarily affect him to his personal or pecuniary loss or gain, or where his inter

est is minute and he has so exclusive jurisdiction that his refusal to act will prevent any proceeding in it, then he may act so far as that there may not be a failure of remedy. (In re Ryers, 72 N. Y. 1.)

Where a Supreme Court judge confirmed the report of a referee, Held, that he could not sit at General Term to review this decision, under the provisions of the State constitution, Art. 6, § 8. (Duryea v. Traphagen, 84 N. Y. 652.)

855. An attorney cannot refuse to go on with an action because the client does not supply him with money, or by reason of any other difficulty, without running the risk of losing the benefit of the relation of attorney. In case of such refusal, the court may permit the substitution of a new attorney, and determine upon what terms this shall be done and whether the judgment when obtained shall be chargeable with the fees of the original attorney. (In re H., 93 N. Y. 381.)

An attorney retained generally to conduct a legal proceeding contracts to conduct it to its termination, and if before that he abandons the service without justifiable cause and reasonable notice, he cannot recover for the services he has rendered. Still, if the client, without his knowledge or consent, employs counsel with whom his relations are such that there can be no cordial cooperation between them, this is good cause for his withdrawal from the case, and the client is then liable for services rendered. (Tenney v. Berger, 93 N. Y. 524.)

§ 66. As to the attorney's lien, see Goodrich v. McDonald, 112 N. Y. 157; Randall v. Van Wagenen, 115 N. Y. 527; Bailey v. Murphy, 136 N. Y. 50.

an action, under an agreement that he shall receive his compensation out of the proceeds thereof, he has an equitable lien upon or ownership, as equitable assignee, in such proceeds. When no sum or rate of compensation is agreed upon, he must, in order to enforce his lien, prove the value of his services. (Harwood v. LaGrange, 137 N. Y. 538.)

874. An attorney may agree with his client on his compensation and it may be made contingent on his success and payable out of the proceeds of the litigation. Thus where the client conveyed certain real estate to the attorney, and the latter agreed to conduct the case, pay all costs and expenses of the litigation and indemnify the client against the same, the conveyance was held valid. (Fowler v. Callan, 102 N. Y. 395; see Browning v. Marvin, 100 N. Y. 144.)

In the absence of any agreement, the attorney is entitled to what his services are reasonably worth. (Starin v. Mayor, 106 N. Y. 82.)

An order may be granted on motion compelling an attorney to pay over money received by him for his client, and in default of such payment, the attorney may be punished by fine or imprisonment. This power is discretionary and the Court of Appeals will not, therefore, entertain an appeal from the order of the lower court. (Schell v. Mayor, 128 N. Y. 67; see Howitt v. Merrill, 113 N. Y. 630.)

8 190. The Court of Appeals has only jurisdiction to review an "actual determination" of the General Term. Hence it cannot review a judgment of affirmance by default of the General Term. (Stevens v. Glover, 83 N. Y. 611.)

687; King v. Barnes, 107 N. Y. 645; Platt v. Platt, 66 N. Y. 360. The nature of such a judgment is indicated in Zapp v. Miller, 109 N. Y., at p. 55. As to the nature of a "final judgment," see Moulton v. Cornish, 138 N. Y. 133.

Subd. 2. For an order affecting a “substantial right," see Uline v. N. Y. C. R. Co., 79 N. Y. 175. For orders which were held not to affect a "substantial right," see Whitney v. Townsend, 67 N. Y. 40; Atlantic, etc., R. Co. v. B. & O. R. Co., 87 N. Y. 355.

Discretionary orders are reviewable at General Term, but not in the Court of Appeals. (Douglass v. Haberstro, 82 N. Y. 572.)

When the question involved is whether the lower court has power, whether discretionary or otherwise, to grant a certain kind of order, this matter of power is appealable; but when the court below clearly has such power, and the power is discretionary, the Court of Appeals will not review the mode of exercising such discretion, unless there be a plain abuse of discretion. (Tilton v. Beecher, 59 N. Y. 176; Ex parte Beggs, 67 N. Y. 120; Hewlett v. Wood, id. 394).

The following are examples of orders "resting in discretion": an order refusing a new trial for surprise or newly discovered evidence (Smith v. Platt, 96 N. Y. 635); an order deciding whether an action, which is referable, shall be referred. (Martin v. Hotel Co., 70 N. Y. 101); an order deciding who shall be appointed general guardian of an infant (In re Vandewater, 115 N. Y. 669). So orders relating solely to matters of practice in the lower court are, in general, not appealable to the Court of Appeals; as e. g.,

assigning causes to a particular calendar. (Kellum v. Durfoo, 78 N. Y. 484).

Subd. 3. For an interesting case where an order refusing to admit law school graduates to the bar was held appealable as a "final order in a special proceeding," see In re Cooper, 22 N. Y. 67.

For illustrations of orders not final, see In re Auchmuty, 79 N. Y. 622; In re Latz, 110 N. Y. 661; In re Callahan, 139

N. Y. 51.

§ 191, subd. 1. For the meaning and effect of this section, see Bossont v. Rome, etc., R. Co., 131 N. Y. 37; Godfrey v. Moses, 66 N. Y. 250; Hiscock v. Harris, 80 N. Y. 402; Conklin v. Snider, 104 N. Y. 641; Lane v. Wheeler, 101 N.Y. 17.

Subd. 2. The General Term granting permission to appeal need not be composed of the same judges who decided the case. (Third Ave. R. Co. v. Ebling, 100 N. Y. 98).

Subd. 3. An order granting permission to appeal must state that "question of law is involved," etc. If it does not, it is invalid. (Squire v. McDonald, 138 N.Y. 554).

Only the sum in controversy is to govern as to the right to appeal, though a larger amount may be involved in the case. (Petrie v. Adams, 71 N. Y. 79). Thus where the complaint demanded $1,000, and the answer, admitting this, set up a counterclaim for $204, which was controverted, the case was held not appealable. (Pennie v. Ins. Co., 67 N. Y. 278); so where the claim was for $639.50, and the defendant admitted by his answer $230.89 of this amount, the case was held not appealable. (Wiley v. Brigham, 81 N.Y. 13; see Campbell v. Mandeville, 110 N. Y. 628). In determining as to the amount in controversy, the evidence, as