The Hillsborough recorder. [volume] (Hillsborough, N.C.) 1820-1879, 1844-04-25

ed 70 me lnsssiig siion Of ifgsl quesl'ons,
knoEs.-lhsl IN sems rases. sllhough
three men xhsn apart may e.ne 20 oae
eohtlBs'On. yes Ihe sane ihrte. had they
been together xhsn The question wss rai.-
ed. world have eoPe % . dfTereai con-
elssIon; and that IN many eases. slGhOugh
t9o men ~hen together cone 70 sconclU-
sim win which they are ssiis6sd. ,fl i
third man had been pIesrni, ~ho enter
lsined . different avinlon, TIE 1sighi 81
hrs opinion and nasonleg ~ouA induce
one Il MOI both al The othsI tao 10 give up
lhsu opinion and adop. he.
ID mist be eonerded. that The JOINT
opinion Of three sitting together 10 more
apt 10 be eorreeI, ihsn ihesesrrsl epmions
Of tie sane thTse-snd The joint opinion
ol two siIlIRe wi,h . third = BIO d fsrs and
thereby causes he suestinn 70 be ,iesed
an Ill iis ssPeeis. Is more apt 10 be correct,
ahsn the JOIN, pp,uian .f ,Le sane two
without The inleI pnsilIon al lie lhlFd-h
10 an even chance hal such Interrogation
will induce one n The oihrrs tori,snge iis
opInicn and Ghen the sesulls would be df.
seHni. ..-.....-.. 81.
| When she Legislature gave power 10
fLres men 10 settle The lsw, u musl be pre-
saned 10 have been ihe I'M. ulion thai
they should act in fhe way most apt 10
result in q correct conclBsina:--lhe Joint
opinion Of three 10 most apt TO be coIseei;
lit ~ therefore Ytqnirsd--an exeepson
il admitted where one di.ssnls-sr neees.
,sitGte, the opinion Of tan must be taken
l-Olhtrwise, there wond be no decision.
unti lhec0nstIlutIonG II she court 10 chang.
ed.
This aecessity does mol exist wien the
,shird 10 dead. or sbseni--ss soon 40 she
court 10 foil, joint opinion may lie ob.
ta'ned--no change il required 10 the con-
Islilulion Of The court, bu, simply The pres
'snce Of oil of iis memoers---lo allow The
opinion Of two in such cases 10 settle the
Las, 10 a departure fsom The mode mosa
apt 10 tesult in correel conclusion, with
out necessity and without the aid TO be
exptcIed from the presence oi the third,
aud cannot be consistent wth the true
construction Of the act. in The absence vi
an express provision To that effect.
The srgument stands thus.-,he mode
most apt 10 Iesal, ia correct conclusion
IL Iesuired--,he joint opinion Of three j,
tia, moie--srom Necessity, en- exception
IL. made when one di.s.nIs--ls IL logica
20 extend the exception To cases, when
The necessity dues not exist. and when
there IS no, the les. af correctness produc.
ed by the presence OF the third!
| 4, belongs 10 The law. making power 10
decide upon the expectancy, for the sake
Of convenience, Of introducing third sci
ofIegsi authorities. varying in degreF--
one sc, is the jnint opinion Of three--,he
second the joln, opinion of two With 8
dssenl--.he third. tie mere opinion oil
two.
By the 4,h sec. i, 10 provided, that ia
the sbscene Of one from sickness, &c. the
other two may hold the court. hear and
de,eimine questions. &c. This provisi N
is unnecessary, or nfullv sus.ains The vie "
taken sb0te--lt would be smange II ,he
Legislature should in 1884 and sgain 10
1896. make an express provision which
was uncslled for. This provision mus
now be taken as part OF The act, under
which the court derives. Ks power and
must have an influence upon the cUnsruc'
non. When making provision for case
Of sickness, why did not the Legislature
provide for a case Of death! IL in the
opinion Of tha, body two of the judge.
could not scl az a court, when one was
sbsen, from sickness, aud a provision was
necesssry--lhe same reasoning would
make il as clear il no, more so, that two
could not act when one was dead.
II lis said that two judges had acted in
1880. upon The death OF Judge Taylor. aud
} so the Legislature concluded a provision
was unnecessary. For The same reason,
} they might have concluded, the provision
made was unnecessary; Tor # Two could
act, when one was dead. of course tsO
could act, when one was sick. The IN
Terence t. be drawn from this section Is,
'hst the Legislature oting aware o. ms
necessity Of al express provision 10 ena'
BILE tao Judges TO &C, as Court, thought
, II expedient 10 provide for case Of ab'
sence from sickness, or other inevitably
cause, which not creating a vacancy
: mightleave the business undetei mined frI
an Indefinite time; bu. did not think il ex
pedient so to provide IN case Of deatt
or removal from Office. which created &
, vacancy. that it was presumed would bs
promptly flled:-lor II was considered al
luncaaed Tor departure from the principle
SECURING ths law 10 be settled IN .h'
mode most ap, to result. IN correct con
, clu.ion.
II analogy be resor'ed TO in did Of th'
construc,ios,. IL is found that in all com
m,ssions OF Oyer and f'erminer, Courts
+ of Admiralty, &c., this clause rs inserted
, "si onsnes inieresse non possitis tuncuos
} fres, 81" y; IRON " irch The inference is 'hs
, but Tor this proviso. all must act. Th'
. Courts Of Kings Bench and Common
J Pleas, are BY Ossge. held by some OF tn