errors of judgment. That the trustees of such corporations are bound to use some diligence in the discharge of their duties cannot be disputed. All the authorities hold so. What degree of care and diligence are they bound to exercise? Not the highest degree; not such as a very vigilant or extremely careful person would exercise. If such were required, it would be difficult to find trustees who would incur the responsibility of such trust positions. It would not be proper to answer the question by saying the lowest degree. Few persons would be willing to deposit money in savings banks or to take stock in corporations, with the understanding that the trustees or directors were bound only to exercise slight care, such as inattentive persons would give to their own business, in the management of the large and important interests committed to their hands. When one deposits money in a savings bank, or takes stock in a corporation, thus divesting himself of the immediate control of his property, he expects, and has the right to expect, that the trustees or directors who are chosen to take his place in the management and control of his property will exercise ordinary care and prudence in the trusts committed to them - the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs. When one voluntarily takes the position of trustee or director of a corporation, good faith, exact justice and public policy unite in requiring of him such degree of care and prudence, and it is a gross breach of duty, crassa negligentia, not to bestow them.

It is impossible to give the measure of culpable negligence for all cases, as the degree of care required depends upon the subjects to which it is to be applied. First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278. What would be slight neglect in the care of a quantity of iron might be gross neglect in the care of a jewel. What would be slight neglect in the care exercised in the affairs of a turnpike corporation, or even of a manufacturing corporation, might be gross neglect in the care exercised in the management of a savings bank intrusted with savings of a multitude of poor people, depending for its life upon credit, and liable to be wrecked by the breath of suspicion. There is a classification of negligence to be found in the booksnot always of practical value, and yet sometimes serviceable-into slight negligence, gross negligence, and that degree of negligence intermediate the two, attributed to the absence of ordinary care; and the claim on behalf of these trustees is that they can only be held responsible in this action in consequence of gross negligence, according to this classification. negligence be taken according to its ordinary meaning, as something nearly approaching fraud or bad faith, I cannot yield to this claim; and if there are any authorities upholding the claim, I emphatically dissent from them.

If gross

It seems to me that it would be a monstrous proposition to hold that trustees intrusted with the management of the property, interests and business of other people, who divest themselves of the management and control of them, are bound to give only slight care to the duties of their trust, and are liable only in case of gross inattention and negligence; and I have found no authority fully upholding such a proposition. It is true that authorities are found which hold that trustees are liable only for crassa negligentia, which literally means gross negligence; but that axiom has been defined to mean the absence of ordinary care and diligence adequate to the particular case.

In Scott v. Depeyster, 1 Ed. Ch. 513, 543, a case much cited, the learned vice-chancellor said: "I think the question in all such cases should and must necessarily be, whether they (direotors) have omitted that care which men of common prudence take of their own concerns. To require more would be adopting too

rigid a rule and rendering them liable for slight neglect; while to require less would be relaxing too much the obligation which binds them to vigilance and attention in regard to the interests of those confided to their care, and expose them to liability for gross neglect only, which is very little short of fraud itself."

In Spering's Appeal, 71 Penn. St. 11, Judge Sharswood said: "They (directors) can only be regarded as mandataries-persons who have gratuitously undertaken to perform certain duties, and who are therefore bound to apply ordinary skill and diligence, but no more."

In Hodges v. New England Screw Co., 1 R. I. 312, Jencks, J., said: "The sole question is whether the directors have or have not bestowed proper diligence. They are liable only for ordinary care-such care as prudent men take in their own affairs." And in the same case, Ames J., said: "They should not, therefore, be liable for innocent mistakes, unintentional negligence, honest errors of judgment, but only for willful fraud or neglect, and want of ordinary knowledge and care.' The same case came again under consideration in 3 R. I. 9, and Green, C. J., said: “We think a board of directors, acting in good faith and with reasonable care and diligence, who nevertheless fall into a mistake, either as to law or fact, are not liable for the consequences of such mistake."

In the case of Liquidators of the Western Bank v. Douglas, 11 Session Cas. (3d series) 112, Scotch, it is said: "Whatever the duties (of directors) are, they must be discharged with fidelity and conscience, and with ordinary and reasonable care. It is not necessary that I should attempt to define where excusable remissness ends and gross negligence begins. That must depend to a large extent on the circumstances. It is enough to say that gross negligence in the performance of such a duty, the want of reasonable and ordinary fidelity and care, will impose liability for loss thereby occasioned."

In Charitable Corporation v. Sutton, 2 Atk. 405, Lord Chancellor Hardwicke said that a person who acccepted the office of director of a corporation "is obliged to execute it with fidelity and reasonable diligence," although he acts without compensation.

In Litchfield v. White, 3 Sandf. 545, Sandford, J., said: "In general, a trustee is bound to manage and employ the trust property for the benefit of the cestui que trust with the care and diligence of a provident owner. Consequently he is liable for every loss sustained by reason of his negligence, want of caution or mistake, as well as positive misconduct."

In Spering's Appeal, supra, Judge Sharswood said that directors "are not liable for mistakes of judgment, even though they may be so gross as to appear to us absurd and ridiculous, provided they were houest, and provided they are fairly within the scope of the powers and discretion confided to the managing body."

As I understand this language, I cannot assent to it as properly defining to any extent the nature of a director's responsibility. Like a mandatary, to whom he has been likened, he is bound not only to exercise proper care and diligence, but ordinary skill and judgment. As he is bound to exercise ordinary skill and judgment, he cannot set up that he did not possess them. When damage is caused by his want of judgment, he cannot excuse himself by alleging his gross ignorance. One who voluntarily takes the position of director, and invites confidence in that relation, undertakes like a mandatary, with those whom he represents or for whom he acts, that he possesses at least ordinary knowledge and skill, and that he will bring them to bear in the discharge of his duties. Story on Bailments, § 182. Such is the rule applicable to public officers, to professional men and to mechanics, and such is the rule which must be applicable to every per

son who undertakes to act for another in a situation or employment requiring skill and knowledge; and it matters not that the service is to be rendered gratuitously.

These defendants voluntarily took the position of trustees of the bank. They invited depositors to confide to them their savings, and to intrust the safekeeping and management of them to their skill and prudence. They undertook not only that they would discharge their duties with proper care, but that they would exercise the ordinary skill and judgment requisite for the discharge of their delicate trust.

Enough has now been said to show what measure of diligence, skill and prudence the law exacts from managers and directors of corporations, and we are now prepared to examine the facts of this case for the purpose of seeing if these trustees fell short of this measure in the matters alleged in the complaint.

This bank was incorporated by the act chapter 467 of the Laws of 1867, and it commenced business in the spring of that year in a hired building on the east side of third avenue in the city of New York. It remained there for several years, and then removed to the west side of the avenue between Forty-fifth and Forty-sixth streets, where it occupied hired rooms until near the time of its failure in the fall of 1875. During the whole time the deposits averaged only about $70,000. In 1867 the income of the bank was $942.12, and the expenses, including amounts paid for safe, fixtures, charter, current expenses and interest to depositors, were $5,571.34. In 1868 the income was $5,471.43, and the expenses, including interest to the depositors, $5,719.43. In 1869, the income was $3,918.27, and the expenses and interest paid $5,346.05. In 1870, the income was $5,784.09, and expenses and interest $7,040.22. In 1871 the income was $13,551.14, which included a bonus of $4,000 or $6,000 obtained upon the purchase of a mortgage of $40,000, which mortgage was again sold in 1874 at a discount of $2,000, and the expenses, including interest paid, wero $9,124.05. In 1872 the income was $5,100.51, and the expenses, including interest paid, were $7,212.49. Down to the first day of January, 1873, therefore, the total expenses, including interest paid, were $5,046 more than the income. To this sum should be added $2,000, deducted on the sale of the large mortgage in 1874, which was purchased at the large discount in 1871, as above mentioned, and yet entered in the assets at its face. From this apparent deficiency should be deducted the value of the safe and furniture of the bank, from which the receiver subsequently realized $500. At the samo date the amount due to over one thousand depositors was about $70,000, and the assets of the bank consisted of about $13,000 in cash and the balance mostly of mortgages upon real estate.

While the bank was in this condition, with a lease of the rooms then occupied by it expiring May 1, 1874, the project of purchasing a lot and erecting a bankinghouse thereon began to be talked of among the trustees. The only reason put on record in the minutes of the meetings held by the trustees for procuring a new banking-house was to better the financial condition of the bank. In February, 1873, at a meeting of the trustees, a committee was appointed "on a site for a new building;" and in March the committee entered into contract for the purchase of a plot of land, consisting of four lots, on the corner of Forty-eighth street and Third avenue, for the sum of $74,500, of which $1,000 was to be paid down, $9,000 on the first day of May then next, and $64,000, to be secured by a mortgage, payable on or before May 1, 1875, with interest from May 1, 1873, at seven per cent; and there was an agreement that payment of the principal sum secured by the mortgage might be extended to May 1, 1877, provided a building should, without unavoidable delay, be erected upon the corner lot, worth not less

than $25,000. This contract was reported by the committee to the trustees at a meeting held April 7. On the first day of May, 1873, the real estate was conveyed and the cash payment was made, and four separate mortgages were executed to secure the balance, one upon each lot. The mortgage upon the lot upon which the bank building was afterward erected was for $30,500. At the same time the bank became obligated to build upon that lot a building covering its whole front, 25 feet, and 60 feet deep, and not less than five stories high, and have the same inclosed by the first day of November then next. Upon that lot the bank proceeded, in the spring of 1875, to erect a building covering the whole front and 76 feet deep and five stories high, at an expense of about $27,000, and the building was nearly completed when the receiver of the bank was appointed in November of that year. The three lots not needed for the building were disposed of, as we may assume, without any loss, leaving the corner lot used for the building to cost the bank $29,250; and we may assume that that was then the fair value of the lot. This case may then be treated as if these trustees had purchased the corner lot at $29,250, and bound themselves to erect thereon a building costing $27,000. When the receiver was appointed, that lot and building, and other assets which produced less than $1,000, constituted the whole property of the bank; and subsequently the lot and building were swept away by a mortgage foreclosure, and this action was brought to recover the damages caused to the bank by the alleged improper investment of its funds, as above stated, in the lot upon which the building was erected. At the time of the purchase of the lot, the bank was substantially insolvent. If it had gone into liquidation, its assets would have fallen several thousand dollars short of discharging its liabilities, and this state of things was known to the trustees. It had been in existence about six years, doing a losing business. The amount of its deposits, which its managers had not been able to increase, shows that the enterprise was an abortion from the beginning; either because it lacked public confidence, or was not needed in the place where it was located. It had changed its location once without any benefit. It had on hand but about $13,000 in cash, of which $10,000 were taken to make the first payments. The balance of its assets was mostly in mortgages not readily convertible. One was a mortgage for $40,000, which had been purchased at a large discount, and we may infer that it was not very salable, as the trustees resolved to sell it as early as May, 1873, and in August, 1873, authorized it to be sold at a discount of not more than $2,500, and yet it was not sold until 1874. In this condition of things, the trustees made the purchase complained of, under an obligation to place on the lot an expensive bankinghouse. Whether, under the circumstances, the purchase was such as the trustees, in the exercise of ordinary prudence, skill and care could make, or whether the act of purchase was reckless, rash, extravagant, showing a want of ordinary prudence, skill and care, were questions for the jury. It is not disputed that under the charter of this bank, as amended in 1868 (chapter 294), it had the power to purchase a lot for a banking-house, "requisite for the transaction of its business." That was a power, like every other possessed by the bank, to be exercised with prudence and care. Situated as this moribund institution was, was it a prudent and reasonable thing to do, to invest nearly half of all the trust funds in this expensive lot, with an obligation to take most of the balance to erect thereon an extravagant building? The trustees were urged on by no real necessity. They had hired rooms where they could have remained; or if these rooms were not adequate for their small business, we may assume that others could have been hired. They put forward the claim upon the trial that the rooms they

then occupied were not safe. That may have been a good reason for making them more secure, or for getting other rooms, but not for the extravagance in which they indulged. It is inferable, however, that the principal motive which influenced the trustees to make the change of location was to improve the financial condition of the bank by increasing its deposits. Their project was to buy this corner lot and erect thereon an imposing edifice, to inspire confidence, attract attention and thus draw deposits.

It was intended as a sort of advertisement of the bank; a very expensive one; indeed, savings banks are not organized as business enterprises. They have no stockholders, and are not to engage in speculation or money-making in a business sense. They are simply to take the deposits, usually small, which are offered, aggregate them and keep and invest them safely, paying such interest to the depositors as is thus made, after deducting expenses, and paying the principal upon demand. It is not legitimate for the trustees of such a bank to seek deposits at the expense of present depositors. It is their business to take deposits when offered. It is not proper for these trustees, or at least the jury may have found that it was not, to take the money then on deposit and invest it in a bankinghouse merely for the purpose of drawing other deposits. In making this investment, the interests of the depositors, whose money was taken, can scarcely be said to have been consulted.

It matters not that the trustees purchased this lot for no more than a fair value, and that the loss was occasioned by the subsequent general decline in the value of real estate. They had no right to expose their bank to the hazards of such a decline. purchase was an improper one when made, it matters not that the loss came from the unavoidable fall in the

If the

value of the real estate purchased. The jury may have found that it was grossly careless for the trustees to lock up the funds in their charge in such an investment, where they could not be reached in any emergency which was likely to arise in the affairs of the crippled bank. We conclude, therefore, that the evidence justified a finding by the jury that this was not a case of mere error or mistake of judgment on the part of the trustees, but that it was a case of improvidence, of reckless, unreasonable extravagance, in which the trustees failed in that measure of reasonable prudence, care and skill which the law requires.

This case was moved for trial at a Circuit Court, and before the jury was impaneled the defendants claimed that the case was improperly in the Circuit, and that it should be tried at the Special Term, and the court ordered that the trial proceed; and at the close of the evidence the defendants moved that the complaint be dismissed, on the ground that the action was not a proper one to be tried before a jury and should be tried before the equity branch of the court. The motion was denied, and these rulings are now alleged for error. The receiver in this case represents the bank and may maintain any action the bank could have maintained. The trustees may be treated as agents of the bank (In re German Mining Co., 27 Eng. Law & Eq. 158; Belknap v. Davis, 19 Me. 455; Bedford R. R. Co. v. Bowser, 48 Penn. St. 29; Butts v. Woods, 38 Barb. 181; Austin v. Daniels, 4 Den. 299; Ohio & M. R. R. Co. v. McPherson, 35 Mo. 13), and for any misfeasance or nonfeasance causing damage to the bank they were responsible to it, upon the same principle that any agent is for like cause responsible to his principal. It has never been doubted that a principal may sue his agent in an action at law for any damages caused by culpable misfeasance or nonfeasance in the business of the agency. The only relief claimed in this complaint was a money judgment, and we think it was properly tried as an action at law. No equitable rights were to

be adjusted, and there was no occasion to appeal to an equity forum.

Treating this therefore as an action at law, it follows also that the objection taken, that the other trustees should have been joined as defendants, cannot prevail. In actions ex delictu the plaintiff may suc one, some or all of the wrong-doers. Liquidators of Western Bank v. Douglas, 22 Sess. Cas. (3d series), 475, Scotch; Barbour on Parties, 203.

The defendants Hoffman and Gearty filed petitions for their discharge in bankruptcy after the commencement of this action, and were discharged before judgment, and they alleged such discharge as a defense to the action. The trial judge and General Term held that the discharge furnished no defense, and we are of the same opinion. This claim was purely for unliquidated damages occasioned by a tort. Such a claim is not provable in bankruptcy, and therefore was not discharged. U. S. R. S. (2d ed.), §§ 5115, 5119, 5067 to 5071; Zimmon v. Ritterman, 2 Abb. (N. S.) 261; Kellogg v. Schuyler, 2 Den. 73; Crouch v. Gridley, 6 Hill, 250; In re Wiggers, 2 Biss. 71; In re Clough, 2 Ben. 508; In re Lidle, 2 Bank. Reg. 77.

I' conclude, therefore, that the judgment appealed from should be affirmed.

The appeal by the plaintiff from the order of the General Term, granting a new trial as to defendant Smith, must, for reasons stated on the argument, be dismissed, with costs.

All concur.

ESCAPED CRIMINAL MAY NOT MAINTAIN APPEAL FROM CONVICTION.

CALIFORNIA SUPREME COURT, JULY 20, 1880.

PEOPLE OF CALIFORNIA v. REDINGER.

When one convicted of a crime has escaped from custody he has, while he remains at large, no right to appear by counsel and prosecute an appeal from the judgment of conviction.

A1

PPEAL from the Superior Court of Colusa County.
The opinion states the case.

A. L. Hart attorney-general, for the people.
John C. Dewel, for appellant.

THORNTON, J. The defendant was indicted for the murder of one James King; was tried in the District Court of Colusa county under this indictment, and on the 16th of December, 1870, convicted of murder in the first degree. Tho defendant moved for a new trial, which was denied. The court in due course pronounced sentence of death by hanging. The defendant prosecuted an appeal to this court, notice of the same having been served on the 9th of February, 1880, and the cause was here for argument at the session of May, 1880, held at the city of Sacramento.

When the cause was called for argument, the attorney-general moved the court for an order dismissing the appeal on the ground that since the appeal was taken the defendant had escaped from jail, and was no longer in custody to abide the sentence of the court. This fact is certified to the court by the affidavit of the sheriff of the county aforesaid, in whose custody the prisoner had been since the conviction and sentence above mentioned, who deposes under oath that the defendant, by stratagem and force, on the 5th day of April last, escaped from the jail aforesaid, and was then at large. The affidavit bears date the 19th day of May, 1880. Of the escape there is no denial.

The question is one of interest and importance; is new in this State, no case decided by any of its courts having been produced to us. Several cases were called to our attention on the argument of this motion, and

a reply has been made on behalf of defendant. An objection was taken by the attorney-general to any one being heard for the defendant, on the ground that this' court ought not to recognize any one as counsel for him after he had voluntarily withdrawn himself from the jurisdiction of this court and the court in which the conviction was had and sentence pronounced. However, a brief was allowed to be filed on behalf of defendant, which has been since done.

In discussing the motion several cases were brought to our notice by the attorney-general. We have examined these cases and others not cited on the argument.

The earliest decision bearing on the point is in an anonymous case in Maine (see 31 Me. 592), decided in 1850. It is thus reported: "A defendant had been tried and convicted upon an indictment for an aggravated offense. He excepted, and was committed for want of sureties to appear at the law term, at which the exceptions were to be heard. Meanwhile he escaped. His counsel proposed to argue the exceptions. But the court declined to hear the case until the defendant should be again in custody."

Sherman v. Commonwealth was decided by the Virginia Court of Appeals in 1858. See 14 Gratt. 677. In this case Sherman was convicted of a felony, and was sentenced to six years' imprisonment in the penitentiary. He obtained a writ of error from the Court of Appeals, which was directed to operate as a supersedeas to the judgment. While it was pending in the appellate court, Sherman broke jail and absconded. The attorney-general moved the court for a rule upon the prisoner to show cause why the court should not set aside the supersedeas, or postpone the hearing of the cause until the prisoner should return to the proper custody. This order was made, and the motion was afterward argued on behalf of the Commonwealth and the plaintiff in error. The court adjudged that so much of the order awarding the writ of error as directed it to operate as a supersedeas be discharged, and further ordered that the writ of error be dismissed on the 1st of May next, 1859, unless it should be made to appear to the court on or before the day above named that the plaintiff in error is in the custody of the proper officers of the law. This judgment was afterward approved by the same court in Leftwich's case, in which defendant had been convicted of a felony. See 20 Gratt. 723, decided in 1870.

The case cited from Massachusetts (Comm. v. Andrews, 97 Mass. 543) was decided in 1867. Andrews was convicted of receiving stolen property. He alleged exceptions, which were allowed, and was held in jail to prosecute. When the case was called in the Supreme Court, the attorney-general suggested that the defendant had broken jail and was at large, and asked that he should be defaulted, and the exceptions overruled without argument. The court heard argument on the motion by the counsel for defendant, who stated (as appears from the report) the points in his behalf with force and clearness; and we would infer, from what is stated in the report, that the motion was elaborately argued by the counsel who spoke for the defendant. The court granted the motion. We insert here the brief opinion:

"The defendant, by escaping from jail, where he was held for the purpose of prosecuting these exceptions and abiding the judgment of the court thereon, has voluntarily withdrawn himself from the jurisdiction of the court. He is not present in person, nor can he be heard by attorney. A hearing would avail nothing. If a new trial should be ordered, he is not here to answer further; if the exceptions are overruled, a sentence cannot be pronounced and executed upon him. The attorney-general has a right to ask that he should be present to receive the judgment of the court. Chit. Crim. Law, 663; Rex v. Caudwell, 17 Q. B. 503.

So far as the defendant has any right to be heard under the Constitution, he must be deemed to have waived it by escaping from custody, and failing to appear and prosecute his exceptions in person, according to the order of the court under which ho was committed. Defendant defaulted. Exceptions overruled."

The People v. Genet, 59 N. Y. 80 (1874), is also cited. In this case the defendant had been convicted of a felony, and upon this conviction was committed to custody to await sentence pending au application for the settlement of a bill of exceptions. When this bill was presented for settlement, the court declined to settle it on the ground that the defendant had, since the conviction, escaped from custody; had absconded, and was then at large. An application was made to the Supreme Court for a mandamus to compel the trial court to settle and seal the bill of exceptions. The Supreme Court denied the application, and the matter was brought on appeal before the Court of Appeals. This court affirmed the order of the Supreme Court. The Court of Appeals held it essential to any step, on behalf of a person charged with felony after indictment found, that he should be in actual custody by being in jail, or constructively, by being let to bail. The court, per Johnson, J., said:

"The whole theory of criminal proceedings is based upon the idea of the defendant being in the power and under the control of the court, in his person. While the Constitution and the statute provide him with counsel, and the statutes give the right of appearance by attorney in civil cases, they are silent in respect to the representation of persons charged with felony by means of an attorney; aud in regard to those charged with lesser offenses, the statutes permit them to be tried in their absence from court only on the appearance of an attorney duly authorized for that purpose. This authority, it has been held, must be special, and distinctly authorize the proceedings. People v. Petry, 2 Hilt. 525; People v. Wilkes, 5 How. Pr. 105. Even in the absence of statutory regulations, this rule has been enforced in the courts of the United States. United States v. Mayo, 1 Curtis' C. C. 433. In criminal cases there is no equivalent to the technical appearance by attorney of defendant in civil cases, except the being in actual or constructive custody. When a person charged with felony has escaped out of custody, no order or judgment, if any should be made, can be enforced against him; and courts will not give their time to proceedings which for their effectiveness must depend upon the consent of the person charged with crime." The opinion ends with this remark: "We think they (referring to the statutes of New York giving to defendant a right to make a bill of exceptions) do not require the courts to encourage escapes and facilitate the evasion of the justice of the State by extending to escaped convicts the means of reviewing their convictions."

In Smith v. United States, 94 U. S. 97 (1876), the plaintiff in error had been convicted of some offense (the report 'does not state the offense), and had sued out a writ of error to the United States Supreme Court to have the conviction reversed. Afterward he escaped from custody. The cause was docketed in the Supreme Court, December 29, 1870. It had been continued at every term up to the time of the decision, for the reason that no one had appeared to represent the plaintiff in error. At the October term, 1876, the court, on motion, dismissed the writ for want of prosecution, but on motion of counsel for the plaintiff, reinstated it, who moved to have it set down for argument. The court denied the motion, and ordered that unless the plaintiff in error submitted himself to the jurisdiction of the court below on or before the first day of the next term of the court, the cause is to be left off the docket after that time. The court held, in this case, that it was within its 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 it might render. It thus declared it, per Waite, C. J.:

"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 be a moot case." 94 U. S. 97.

In Queen v. Caudwell, 17 Q. B. 503 (November, 1851), the defendant had been convicted of perjury, and sentenced to seven years' transportation. Pigott, for the defendant, was about to move for a new trial. It appeared that the defendant was absent. Lord Campbell, C. J., said: "The defendant must be in court." Erle, J., concurred, and mentioned a like ruling by Lord Denman in a case where he (Erle) was for the defendant. Lord Campbell added: "This is peculiarly a case where the rule ought to be enforced, because the sentence has been passed on him, and is evaded by his absence. When he appears you may renew your motion.' "He referred to Rex v. De Baringer, 3 M. & S. C7. The motion was not heard, on the ground that the defendant was not forthcoming to meet his sentence. (Campbell, C. J.; Patterson and Erle, JJ., concurring.) See, also, Queen v. Chichester, 17 Q. B. 514 (Novem- | ber 24, 1851), where on motion for judgment against defendant, who had suffered judgment to go by default on an indictment for nuisance, and without laches of the prosecution, the defendant having gone out of reach before he could be served with notice to appear for judgment, the court refused to pass sentence in his absence, although it appeared that the removal of the nuisance, which was to a public navigation, was important, and that the judgment of the court was wanted to authorize the abating it. The court held that the remedy was by process of outlawry.

In the case under consideration, has the defendant waived the right to have his case considered and determined? This was held, in so many words, in the case from Massachusetts (Commonwealth v. Andrews, supra), and the same may be regarded as the rule laid down and acted on in the Virginia cases (Sherman's case and Leftwich's case, supra). The determination under the facts here presented not to hear the cases was considered within the discretion of the court- the discretion to be exercised to be a judicial discretion within limits defined by the law. In Genet's case, supra, the right to have a bill of exceptions settled was held not to exist on behalf of an escaped convict. In the case in Maine the court refused to hear the argument; and in the case from New York (59 N. Y. 80), the right to be represented by counsel, guaranteed both by the Constitution and statutes to defendants in cases of felony, is held not to exist when the defendant is not actually or constructively in custody, so that the sentence of the court can be enforced when pronounced. An exception to that rule is referred to in the opinion as to offenses less than felony.

The provision of the Constitution of this State, both in the first Constitution and that recently adopted, as regards this right, is, "to appear and defend in person and with counsel." The former Constitution had appended to this provision, "as in civil actions." That is omitted in the instrument of 1879. The language is suggestive, and indicates that the party charged is not allowed to appear and defend by counsel, but with counsel

the person acting as counsel to be present with the defendant, and not without him. In these words it seems as if the power to appear and defend,

at least in a case amounting to felony, does not exist in the counsel at all in the absence of the defendant. This view seems to be sustained by the statute of this State, and to be derived from a history of the law regarding counsel in criminal cases.

The history of the law as regards capital cases will be found in Blackstone's Commentaries. See Book 4, 355, 356. This author seems to doubt whether it was not allowed by the ancient law of England, and cites the Mirror, ch. 3, § 1. In a note it is said that the right of counsel to plead for them was first denied to prisoners by a law of Henry I (ch. 47, 48), which is construed as an erroneous interpretation of the law. However, this author states it is a settled rule at common law that no prisoner should be allowed a counsel upon his trial on the general issue in any capital crime, unless some point of law arose which was proper to be debated. The denial was on the ground that the judge was counsel for the prisoner-a right of but little worth when a Jeffries or Scroggs presided. The privilege was only accorded in the case of State criminals by the statute of 7 William III, ch. 3 (Proffatt's Jury Trial, § 205). This statute applied to all cases of such high treason as worked corruption of the blood, misprision of treason, except treason in counterfeiting the King's coin or seal; such prisoners were allowed to make their full defense by counsel, not exceeding two, to be named by the prisoner and appointed by court or judge. The same indulgence was extended by statute (20 George III, ch. 30) to parliamentary impeachments for high treason; "which,” says Blackstone, were excepted in the former act." 4 Bl. Com. 356.

Prisoners under a capital charge, whether for treason or felony, upon issues which did not turn on the question of guilty or not guilty, but on collateral facts, always were entitled to the full assistance of counsel. Foster, 42, 232; Chitty's note on page above cited from Blackstone's Commentaries.

In misdemeanors the defendant was always allowed counsel as in civil actions. 4 Bl. Com. 356. In all cases of felony defendants (by statutes 6 and 7 William IV, ch. 114, § 11) are allowed counsel.

It will be observed from the above that Blackstone refers to prisoners as being allowed counsel to appear and defend. He nowhere speaks of any such allowance to persons not in custody. How far is the right secured to the persons convicted or charged with public offenses by the statute laws of this State? See §§ 858, 859, 987, 1093, 1095, 1254 of the Penal Code.

It is apparent from an examination of the above sections that this right is confined to persons charged with a public offense only when in custody. In fact, courts have no jurisdiction over persons charged with crime, unless in custody, actual or constructive. It would be a farce to proceed in a criminal cause, unless the court had control over the person charged, so that its judgment might be made effective. It is true that an indictment may be found against one not in custody, but steps are directed to be taken in such case to secure his person (Penal Code, §§ 945, 979, 984); and unless an arrest is effected, the cause can proceed no further. The defendant is arraigned in person, and pleads in person (§ 977, Penal Code), unless in case of misdemeanor. Id. Every plea must be oral. Penal Code, § 1017.

By section 1253 of the Penal Code it is provided, as to criminal causes, that "the judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear," and by section 1255 that "the defendant need not personally appear in the Appellate Court." It may be urged that inasmuch as the defendant need not personally appear in the Appellate Court (§ 1255, Penal Code, ut supra,), he has a right to appear by counsel, whether he is in custody or not.