Death of Henry S. Baird.

board, and listened to his words of wisdom and experience, I have a right to say, and to say it on behalf of all his more immediate neighbors of Green Bay, that they loved him living and mourn him dead, as the kindliest, truest gentleman of his age, one of the few gentlemen of the old school; of whom it may be again said: "None knew him but to love him; none named him but to praise."

On behalf of the court, Mr. Chief Justice RYAN responded as follows:

At the time of his death, Mr. BAIRD was truly the father of the Wisconsin bar, and worthy to be so. And it is only decent that we should pause a little in the business of life to notice a death which leaves so large a vacancy, personal and professional.

So much has been said, and well said, at the bar, of the remarkable career of Mr. BAIRD, that there is nothing left for us to add to it; little left for us to say, beyond our cordial assent to the witness of praise borne here to-day to his memory. We all knew him well. And we all attest that, highly as his life and character have been lauded at the bar, all that has been said of him is quite within the truth.

I first met Mr. BAIRD in 1842, in Racine, where he and I were engaged together in the defense of an officer of the army tried by court martial. Thenceforth we met often; sitting together for over two months in the first constitutional convention, of which he was a conspicuous member, distinguished by the fairness of his views and the soundness of his judgment. And I think I may say that I knew him well.

In a long career, I certainly have met men of greater apparent ability than Mr. BAIRD, but I doubt if I ever met one of keener perception of truth and greater fairness of judgment. These made him what he was, a singularly safe adviser, trusty agent, capable man of business, and an invaluable friend. They are qualities importing intellect of no low order, but they were more owing in him to the sound and kindly integrity of his heart. For as far as human frailty will admit, Mr. BAIRD was essentially a good man.

I recall, as I write, but two men whom it has been my fate to know well, in whom goodness, of itself, seemed to me to be power. One of these was a person whom I never recall without emotion, the saintly Bishop KEMPER; the other was Mr. BAIRD. Both had intellect for all their duties in life; but their power over men rested in the goodness of their nature, far more than in their force of character. Both proved what men rarely, women more frequently prove, that goodness may be a positive power in life. Mr. BAIRD's profession and his ability in it tended to make this the more marked in him. He was an intelligent and able lawyer, and would have ranked so at any bar, at any time. And he was zealous and eager, as becomes a good lawyer. But the simple

Death of Henry S. Baird.

sincerity and benignity of his character were never warped by selfish instincts or obscured by professional ardor. Truth spoke always from his open, manly, beaming face. The guileless innocence of childhood was singularly combined in him with shrewd knowledge of the world: as it is written, in malice a child, in understanding a man. It hardly seems exaggeration to say of him that he was wise as serpents, harmless as doves.

This child-like simplicity and innocence of nature, this benignity of manhood, were, I think, the master-key to Mr. BAIRD's whole life, public and private. As a politician, and he was an influential one, they made him moderate, and true to his principles through all the changes, excesses and exactions of party. As a lawyer, they made his retainers always subordinate to his sense of justice, and kept him free from entanglement in monopolies and schemes of public oppression or imposition. As a citizen, they made him what all who surrounded him in life gladly knew him to be, a genial. and high toned gentleman; a generous, guileless man, free from all circuity and deceit; gentle hearted and large minded, sagacious, moderate, judicious, faithful, true and just; whose charity never wearied and never slept; who held his own and his friend's honor above all the blandishments of passion and all the temptations of ambition and wealth; and who came as near as our nature can come, loving his neighbor as himself. What they made him in the sacred privacy of his refined family and home, who may venture to tell? We dare only say that they made his pleasant house a central example of the cordial hospitality which has always distinguished the quaint old borough in which he passed his mature life.

The death of such a man, at any age, brings true and lasting sorrow. But this is sorrow rather for those who stay behind than for him who has gone on before. What sting has death for such a man as Mr. BAIRD, in the fullness of years and of honor, ripe for better life? As has been said, he saw Wisconsin grow from a wilderness to the state it is. But Wisconsin too saw him grow from the sapling to the tree; saw him accomplish great good, public and private, in his day; saw him with affectionate reverence linger a little after the active labor of his life was done; saw him ripen in all excellence for the change which, to such as he, is not so much the grave of this world as the womb of the world to come; saw him laid, a Christian gentleman without spot or blemish, in the earth which will surely give up its dead; and honors him in death as it did in life. Such death following such life is repose too holy for sorrow.

It would have been a sad solecism to pass Mr. BAIRD's death in silence here. We thank the gentlemen of the bar who have so happily brought the matter before the court. And the feeling with which we order these proceedings to be entered of record, is no ordinary tribute to departed professional worth.

VOL. XXXIX. — 3

CASES DETERMINED

AT THE

August Term, 1875.

In re KINDLING. (Habeas Corpus.)

CONSTITUTIONAL LAW: ARREST: BAIL: DETENTION AFTER JUDGMENT. (1, 2) Judges of courts of record may make chamber orders to hold to bail. (3) Upon affidavit showing the tort for which action is brought. (4, 5) Detention of defendant on such order after judgment against him.

1. The judges of the courts of record of this state take, under the constitution creating their offices, the powers of judges of such courts at the common law, including the powers commonly possessed by them at chambers at the time of the adoption of the constitution.

2. Such judges have power, under the constitution, to make orders at chambers to hold to bail, in proper cases, that being the established practice when the constitution was adopted.

3. In an action in the county court of Milwaukee county (which is a court of record) for a tort, the defendant was arrested upon an order of the judge of said court, made at chambers, upon an affidavit showing the tort. Held, that the arrest was lawful.

4. When a defendant lawfully arrested on mesne process fails to give bail, or is surrendered by his bail, before judgment, his liability to detention on such process does not expire on the recovery of judgment against him in the action; but, unless otherwise discharged by the court, his detention must abide a capias ad satisfaciendum.

5. What the prisoner's remedy would be, if, after judgment, the plaintiff should improperly and oppressively delay taking him in execution, is a question not raised by the writ of habeas corpus in this case.

In re Kindling.

APPEAL from the County Court of Milwaukee County.*

An action was commenced in said court in December, 1874, by one Jung, of Berlin, Germany, against Herman Kindling, to recover the value of personal property alleged to have been stolen from Jung by Kindling; and judgment for $1,168.95 was recovered against the defendant in the action July 29, 1875, and docketed two days thereafter. Kindling had been arrested upon an order made by the county judge at chambers, upon proper affidavits, and, in default of bail, confined in the county jail of Milwaukee county, and was so confined when and after the judgment was rendered. A fi. fa. was issued on the judgment August 4, 1875. On the same day, E. M. Hunter, Esq., a court commissioner, after a hearing upon an order to show cause, made the previous day on Kindling's application, made an order in the action for the discharge of the prisoner. This order was served on the sheriff August 5. Afterwards on that day (but before the sheriff had in fact released the prisoner), Jared Thompson Jr., Esq., a court commissioner, made an order in the same action, directing the sheriff to arrest Kindling and bring him before said commissioner. This order was based upon an affidavit of one of Jung's attorneys, which, after stating the recovery and docketing of said judgment, and the facts that Kindling was a resident of Milwaukee county, and that an execution against his property had been issued in said county and was in the hands of the sheriff, further states "that said judgment was recovered for the money value of personal property, consisting partly of jewelry and mostly of negotiable securities, stolen by said defendant from said plaintiff in Berlin, Germany, on or about the first day of September last, and that

*The importance of the questions raised upon the original return of the sheriff to the writ of habeas corpus in this case seems to justify a full report of the facts and arguments bearing upon them, although many of those questions were left undetermined by the judgment, in consequence of the supplemental return.

REP.