evidence to charge a purchaser of the note before maturity with notice that there has been a partial payment on the note. If anything appears to a party calculated to attract attention or stimulate inquiry, the person is affected with knowledge of all that the inquiry would have disclosed. Notice to an attorney of any matter relating to the business in which he is engaged for his client, is notice to the client. Where an attorney sold a note to a person who was occasionally his client, and such attorney, acting for the purchaser, investigated the title to the land on which the note was secured by a mortgage, and was afterwards employed by the purchaser to bring suit on, and collect the note; it was held, to be some evidence that the attorney was acting for the purchaser in the sale of the note. (Dnpree v. Ins. Co., 92 N. C. 417; Bunting v. Ricks, 2 Dev. & Bat. Eq. 130, cited and approved.) Hulbert v. Douglas, S. C. N. C., 1886; 1 Ga. Rep. 652.

30. PLEADING

Evidence - Judgments - Amendments-Judicial Discretion-Lis Pendens-Abatement-Judgment.-A stipulation signed by the parties, and filed in an action, whereby it was admitted and agreed that the amount in controversy was involved in another action, and that the matters in the action, and the claim of plaintiff therein, should enter into and abide the event of such other suit, is admissible in evidence in support of a plea in bar of the judgment in such other action, notwithstanding such stipulation has not been specially pleaded. The allowance of amendments to pleadings is a matter within the discretion of the trial court, which has the power to permit the same at any stage of the trial, when necessary to the purposes of justice. Under the circumstances stated in this case, held, that there was no abuse of discretion in permitting the amendment of an answer by setting up the pendency of another action at the end of the trial, and before judgment. Where an action has been commenced for an accounting, and subsequently one or more items of the account are made the subject of a separate suit between the same parties, a defense of prior lis pendens, set up in the latter suit, is good. Where judgment is rendered for defendant in an action, on his plea that the action is barred by the judgment in another suit, the proper order should be that the action abate, and not that the plaintiff take nothing by his action, and the defendant recover costs. Conbrough v. Adams, S. C. Cal. Aug. 2, 1886; 11 Pac. Rep. 634.

31. SALE-Warranty-Notice of Defect-WaiverNotice by Agent of Seller-Notice by Mail.-Upon a condition in a warranty of an agricultural machine that written notice, stating wherein the machine fails to satisfy the warranty, is to be immediately given by the purchaser to the seller at Battle Creek, Michigan, (the machine being sold in Minnesota,) and reasonable time allowed to get to it and remedy the defect, unless it is of such a nature that the seller can advise by letter, held, that the seller might waive the written notice. Also, that the purchaser might give the notice by agent, writing in his behalf, and for that purpose might select as his agent one who, was agent for the seller. Also that the notice might be given by properly mailing it. Nichols v. Root, S. C. Minn. July 7, 1886; 29 N. W. Rep. 160.

32. SLANDER-Of a Clerk-Actionable Words.-An employer will be liable in slander to his clerk for words spoken of him which impute to him any

want of qualification as a clerk. Wilson v. Cottman, Md. Ct. App. June 1886: 22 Rep. 335.

33. SURETYSHIP-Guardian's Bond-Final Settlement.—In an action upon a guardian's bond for the recovery of the amount found due the wards after a final settlement of the guardian's accounts in the probate court, the sureties are concluded by the settlement, and will not be heard, in the absence of fraud and collusion, to question its correctness, or to demand a rehearing of the accounts. Braiden v. Mercer, S. C. Ohio, June 1, 1886; 22 R. 340.

34. TRADE-MARKS-Arbitrary Numbers-Quality-Origin.-Arbitrary numbers, (viz. 30, 111, etc.,) not already known to the trade, and in use by others to indicate quality, may be appropriated to his exclusive use by a manufacturer, and they will be protected as trade-marks, if used to indicate origin. American, etc. Co. v. Anthony, S. C. R. I., July 3, 1886; 5 Atl. Rep. 626.

35. TRESPASS--Liability for Others Acts-State Lands-Tresspass With Agent's Permission.— Persons who without power authorize others to commit trespasses will themselves be held liable in damages for the injuries suffered. Where persons in charge of State lands consent that others may go upon them and commit trespasses thereon, they will be liable in damages for injuries done to the State. State v. Smith, S. J. Ct. Me. May 25, 1886; 22 Rep. 332.

36. USURY-Executor-Illegal Bonus for Loan of Estate Funds.-Deed of Trust.-Where the executor of an estate, who was also president of a bank, loaned $16,000 of the funds of the estate, receiving therefor, a promissory note for said amount, secured by a deed of trust, and thereupon deposited in the bank to the credit of the maker of the note $15,000, taking a credit for himself of $1,000, as a bonus from the maker of the note in consideration of the loan; held, that the executor was trustee of the estate; that the contract for the bonus was illegal; and that a deduction of $1,000 must be made from the face of the note. Under Rev. St. Mo. § 1008, the tender of payment, where no deposit is made in court, will not release the security created by a deed of trust for the amount due at the time the tender was made, but only stop the running of interest thereaftet. Landis v. Saxton, S. C. Mo., June 21, 1886; 1 S. W. R. 359.

37. WILL-Contesting Probate-Testamentary Capacity-Question for Determination-Evidence"Crazy."-In an issue devisavit vel non, the precise question for determination is whether or not the testator's mind was sufficiently sound to enable him to know and to understand the business in which he was engaged at the time when he executed the will. To charge the jury that testimony that testator was not competent to make a will amounts to nothing, when the witnesses do not testify that testator was crazy, which would have been evidence, is error. Shaver v. McCarthy, S. C. Penn. 5 Atl. Rep. 614.

39.

age, to pay the whole of the estate to her, or such portions of it as in their judgment should seem most beneficial. In case the daughter should die before eighteen, he disposed of his estate by various bequests over. The daughter was never married, and died at twenty-three. The trustees had never paid over the estate to her, acting, in withholding the same, according to their best judgment, and she had never demanded it. Held, that the estate vested in the daughter when she was eighteen, at least. Weatherhead v. Stoddard, S. C. Vt., August 18, 1886; 5 Atl. R. 517.

Depositions Admissibility Proof of NonResidence of Witnesses Wills Execution of— Validity. A petition for the probate of a will need not state whether it is an olographic or other species of will, nor will any defect of form, or in the statement of the jurisdictional facts actually existing, make void the probate of a will; but the court is to admit the will to probate or not, under all the facts shown in evidence. On the contest of a will, where the tribunal found against the contestants on all the issues raised by them, the fact that it also found upon an issue not embraced in the pleadings of the contest, or that in such case there was no finding declaring the will valid as olographic, will not affect the validity of the probate of the will. Parties cannot complain on appeal of error in the court below, in the admission of depositions without the preliminary proof that the persons whose depositions were offered resided out of the county where the cause was tried, if, at the time of offering the depositions, the party, presenting them also offered to prove the fact of such non-residence, and such fact was then admitted without proof by the opposing party. A will, made and executed by a testator in accordance with section 1277 of the California Civil Code, is not invalid because made and executed by him anterior to the time when such section became operative, if the testator did not die until the statute referred to had gone into effect. In re Learned, S. C. Cal., July 13, 1886; 11 Pac. R. 589.

40. WITNESS-Cross-Examination-Limit of -Denial of Charge.--Where a party to a suit denies the principal allegation or charge made against him, in his direct examination, he thereby lays himself liable to a cross-examination upon every circumstance for transaction with which he was connected, which may tend to establish the allegation or charge. Pullen v. Pullen, N, J. Ct. Ch., Sept. 9, 1886; 5 Atl. Rep. 639.

QUERIES AND ANSWERS.*

[Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.]

QUERIES.

24. A. sells a town lot to B. for $1,000; before the deed is given, B. sells to C. for $1,500. By an arrangement between A. and B. to which C. is not a party, the deed runs from A. to C. direct, and names the consideration as $1,500. C. is not informed of the actual amount received by A. The title fails and C. is ousted. In an action by C. against A. upon the covenants of warranty in A.'s deed, can C. collect the $1,500 actua

sum paid by him or only the $1,000, amount received by A.? H. P. R.

QUERIES ANSWERED.

Query 10. [23 Cent. L. J. 70.]-A. loses his house, which was insured, by fire. The Insurance Company believed that A. either did or procured the burning thereof, refuses payment of loss. A. sues to recover the amount claimed under the policy. The company answers, setting up as their defense A's guilt in regard to the fire. What is the quantity of proof required at the company's hands to release it from liability? Must it establish A's guilt "beyond a reasonable doubt," as would be required of the State in a criminal prosecution for the crime, or must it simply show it by "the preponderance of testimony," only, as is the rule in other civil cases?

Answer. The question has frequently arisen, and been decided by the courts. Authorities are collected in May on Insurance (2d ed.), § 583; also, 2 Greenleaf on Evidence (14th ed.), § 408, note b. See also, Monaghan v. Agricultural Fire Ins. Co. 18 N. W. Rep. (N. S.) 797. In England it was held that the presumption of innocence must be rebutted by equally strong proof in a civil as in a criminal case; but while this view has been followed here and there in this country, it is generally rejected. The so-called presumption of innocence" is not so much a presumption as a positive rule of law which prescribes that when a man is accused of crime, and his life or liberty placed in jeopardy, the charge shall be proved beyond reasonable doubt. The rule was established in favor of life and liberty, nor does it obtain when these are not involved. In a civil case there is no such presumption as in a criminal case, and if the defendant makes out his defence by a preponderance of evidence he cannot be denied his civil rights merely because it happens to be disagreeable to the plaintiff to be stigmatized as a criminal, although no legal penalty can follow. W. W. C.

RECENT PUBLICATIONS.

THE AMERICAN DECISIONS, Containing the Cases of General Value and Authority Decided in the Courts of the Several States from the Earliest Issue of the State Reports to the Year 1869. Compiled and Annotated by A. C. Freeman, Counsellor at law, and Author of "Treatise on the Law of Judgments," "Co-tenancy and Partition," "Executions in Civil Cases," etc. Vols, LXXIII and LXXIV. San Francisco: Bancroft-Whitney, Company, Law Publishers, Booksellers and Stationers 1886.

The issue of these volumes has been somewhat delayed, in consequence, as we learn of the recent misfortune by fire of the publishers. In our last number we noticed the receipt of two later volumes, 75 and 76. We can add nothing to what we then said in commendation of the series, except that these volumes in typography and otherwise are fully up to the high standard of the collection.

JETSAM AND FLOTSAM.

NOT OF THAT KIND.-"Was your husband on the stand yesterday?" asked the lawver of a woman in a case in which husband and wife were witnesses. "No," she answered with a snap, "he wasn't on the

stand. He was on the set.

That's the kind of a man he is, whenever there is anything to set on, from a satin sofy to the top rail of a worm fence."

ABOUT THE SUIT-Lawyer (to timid young woman) -"Have you ever appeared as witness in a suit before?"

Young Woman (blushing)-"Y-yes, sir, of course." Lawyer "Please state to the jury just what suit it was."

Young woman (with more confidence)"It was a nun's veiling, shirred down the front and trimmed with a lovely blue, with hat to match."

Judge (rapping violently)--"Order in the court!"

IN THE OLD ATTORNEY'S OFFICE.-"Well, what can I do for you, ladies, this morning?"

"Why, I want to see if I can get a divorce from my husband," said the sharp-nosed, thin-lipped one. "What are your grounds for a divorce?" "Well, he's been with some other woman. I reckon that's enough; and I've got this lady to prove that she heard him, as well as I did, say that at a certain time he was wrapt in the arms of Morpheus."

"Umph, Morpheus isn't any woman: it's-"

"Ye can't fool me. Ye wouldn't catch him wrapt in the arms of any man. I know him, and I'll be durned if you can't get me a divorce I'll go to a Chicago lawyer, where I know I'll get it. Good-bye."

A Tight DeclARATION.-"The following declaratioe, drawn up by an Hibernian attorney, in an action of assault, is an impressive warning against loose methods of constructing pleadings. "The plaintiff further says, that on the night of the first of June the defendant herein came to this plaintiff's house and demanded admission in a noisy and boisterous manner, which admission this plaintiff refused to grant, being in fear of bodily harm; that the defendant notwithstanding continued to demand admission and pounded heavily on the door; that this plaintiff then opened an upper window and warned the defendant to go away, whereupon the said defendant pointed a loaded blunderbuss at this plaintiff, and told him that if he (the plaintiff) did not open the door he (the defendant). would send his soul to h--, which this plaintiff verily believes he would have done if he had not opened the same."-Ex.

We do not see anything loose in this declaration. On the contrary, we regard it as particularly "tight." The plaintiff, wiser than some people are now-a-days, knew "where he was going to," and the attorney merely reproduced that knowledge in the declaration. The plaintiff's faith in his destiny is a-kin to that of the gambler in a Mississippi steamboat wreck, who, at the ultimate moment, jumped overboard with the exclamation-"Now, gallows, save your own!"

ANCIENT PROCEDURE.-The trial by ordeal was a very ancient mode of trial, and seems to have been in existence in England so early as the reign of Ina; and we may conclude these somewhat discursive remarks by stating briefly how the trial by ordeal was conducted according to the laws of Ina. The trial took place in a temple or church. A piece of iron, weighing not more than three pounds, was placed upon a fire, the fire being watched by two men, who placed themselves on either side of the iron, and who were to determine upon the degree of heat it ought to possess. As soon as they were agreed, two other men were introduced, who placed themselves at either extremity of the iron. All these witnesses passed the night fasting. At daybreak the priest who presided, after sprinkling them

with holy water and making them drink, presented them with the gospels to kiss, and then crossed them. The service of the mass was then begun,and from tha moment the fire was no more, increased, but the iron was left on the embers until the last collect. That finished, the iron was raised, and prayers were addressed to the Deity to manifest the truth. Thereupon the accused took the iron in his hand, and carried it the distance of nine feet; his hand was then bound up and the bandage sealed, and after three days it was examined to ascertain whether or not it was impure: it being accounted impure, and therefore the accused to be guilty if it should turn out to have suppurated; if, on the other hand, the sore was found to be healthy, the accused was adjudged to be innocent. The ordeal by water consisted in the accused plunging his arm up to the wrist for inferior crimes, and up to the elbow for crimes of deeper dye, in a vessel filled with boiling water. The other proceedings were similar to those in an ordeal by fire.-Canada Law Journal.

MISCARRIAGE OF JUSTICE.-The London Daily Telegraph gives an account of a case in which a very lamentable miscarriage of justice has just been brought to light. It seems that a man, named David Wilby, who was sentenced to five years' penal servitude, for a robbery with violence, last February has been set free from Chatham Convict Prison "without a stain on his character." He was employed as groom to a retired contractor, living in Ealing, and his master alleged that Wilby attacked him on a dark night and robbed him of a bag containing £180. Subsequently the prosecutor commited suicide, and at the inquest it was shown that his brain was diseased, and that he had been subject to hallucinations for several years. This fact, and the absence of any corroboration of the story of robbery, sufficed to induce the Home Secretary to send the convict back to his wife and children.

"WHAT is this man charged with?" asked the Judge. "With whisky, your Honor," replied the sententious policeman.

A YOUNG lawyer in this city, who boasted that he had been engaged in the trial of an interesting liquor case, neglected to state that it was a case of cham◄ pagne, which he and some companions had been trying the night before.

THE money value of a wife's services above the food, clothing, and medicine, to which she is legally entitled from her husband, has just had a curious illustration in Rhode Island. During the civil war, William R. Cripps, of Newport, married Mrs. Elizabeth H. Thurston, whose husband was supposed to have been killed while serving in a Rhode Island regiment; but after the lapse of years the first husband re-appeared, and upon learning the state of things, married another woman. Cripps, a few months ago, turned his wife out of doors, refused to support her, and applied for a divorce, which the judge granted, as the marriage was illegal. The woman was destitute. A lawyer, J. P. Galvin, took her case in hand, and brought suit against Cripps for services rendered by his supposed wife as his housekeeper, and secured judgment in the sum of two thousand dollars.

ST. LOUIS, OCTOBER 8, 1886.

CURRENT EVENTS.

THE OBLIGATION OF CONTRACTS. In October last Mr. Aldace F. Walker, President of the Vermont Bar Association, delivered before that body an address upon the Dartmouth College Case,1 and subsequent adjudications on the same clause of the Constitution. That address, re-printed in a pamphlet bearing the rather fantastic title, "A Legal Mummy," is now before us. Toward the close of his address he says of this celebrated case: "In fact this historic cause has been embalmed in spices, and laid carefully away upon a shelf, like the corpse of an Egyptian king." It may, however, be questioned whether the rulings of that case are so very dead, as Mr. Walker supposes, but it is certainly true that the constitutional provision has been shorn by judicial construction of very much of its efficiency. The provision is short, and apparently very simple. "No State shall pass any law impairing the Obligation of Contracts." No ten words in the language have occasioned so much controversy. If the matter were res integra there would seem to be no difficulty. There are but two questions latent in the provision. What is a contract, and what is its obligation? The answer to the first would be, that a contract is an agreement of two or more competent persons, for a consideration, reciprocally, to do, or abstain from doing, stipulated things. The obligation of a contract is the duty of the parties to it, to perform or fulfil it according to its terms. In the first case involving this clause of the Constitution, in 1810, the Supreme Court held, in effect, that the clause in question meant precisely what it said, and included all contracts, executed and executory.2 In 1819, in the Dartmouth College Case, the fons et origo of the subsequent stream of adjudications, the court made two concessions; that the Constitution only

3

1 Trustees of Dartmouth College v. Woodward, 4 Wheat. 518.

2 Fletcher v. Peck, 6 Cranch. 87. 3 Supra.

Vol. 23.-No. 15.

and

did not restrain the States in the regulation of their civil institutions. This latter concession was as the "letting out of water;" under it all manner of licenses, State and municipal, and the vast, indefinite, indefinable "Police Power" of the States were emancipated from the operation of the constitutional restriction. Mr. Justice Bradley said: "Legislative discretion as to the exercise of the police power can no more be bargained away than the power itself." 4 Mr. Walker enumerates in detail the successive adjudications by which this great, general, pervasive, and beneficent constitutional provision has been shorn of its power and restricted in its operation. Upon its face, and in its terms, it included all contracts, but the Supreme Court has decided that it does not include implied contracts, or contracts which do not "respect property or some object of value, and confer rights which may be asserted in a court of justice." It must succumb to the Police Power of the States, and affords no protection against demands made in the name of Eminent Domain. We have not the space to follow Mr. Walker through his long list of adjudications, each of which clips off something from the efficacy of the provision, and but for three recent cases in which its vitality is asserted, we would be ready to believe, with Mr. Walker, that the constitutional provision, and the "great historic cause" in which it is expounded, are as dead as Ptolemy Philadelphus. All these modifications of our organic law have, no doubt, been rendered necessary or expedient by the changes wrought by time and progress, but we are of the opinion that they are of too radical a nature to have been appropriately accomplished by judicial construction, but should have been effected by constitutional amendment. We fully recognize the fact that the wisdom of one generation may well become utter folly in the next-that all human institutions should be made to conform to the progressive spirit of the age-we only insist that all changes should be made in the proper man

4 Boston Beer Company v. Massachusetts, 97 U.S. 25. 5 New Orleans etc. Co v. Louisiana etc. Co., 115 U. S. 650; New Orleans Water Works v. Rivers, 115 U. S. 674; Louisville Gas Co. v. Citizens Gas Co. 115 U. S. 683.

ner and by the prescribed authority. With this proviso, we fully concur with Sydney Smith, who said, doubtless in view of the omnipotence of Parliament: "Whenever a man talks to me about an unalterable law, the only impression he makes upon me is that he is an unalterable fool."

FEES AND PRACTICE.-The following excellent article was written by Mr. Donovan, at the request, made through this office, by one of our subscribers, a Minnesota lawyer, who desired to know how one should fix his fees and yet retain his clients. ED. C. L. J.

A learned and able advocate, lately sent on a foreign mission after a fine career in practice, in which he acquired a fortune, once told me that he began by low fees and guaged his charges in proportion to the ability of the client to pay and the benefit derived from his services. His method of stating his bill was quite taking. To the question of "How much will that be?" he would say; "It will depend very much on the work required, say $50 a day, with one day in advance for looking up the facts before trial." "I will give you a receipt for a part of it now if convenient." Thus he decided for the halting client and settled the whole matter; striking while the iron was hot and pleasing his customer. Ten dollars for justice cases, and $30 per day for the Circuit and $50 for Supreme Court, with extra for outside cases, were his first fees in a city practice-a fair rate for young lawyers.

In fixing counsel fees he was equally skillfull. "We'll make it $10-if that will be about right!" or "You may write me a check for a hundred," or "You may leave me $5, if you have it handy," in such a mild form his money would be cheerfully paid over and he never failed to treat the subject with delicate courtesy-leaving room to revise his charges if required by a stubborn client, but generally saying to such, "O, yes, certainly, you can hire such lawyers, but I am too busy at present to take very low priced practice." This is an instance of a wise man's course. Law practice opens many doors of paying business outside of court rooms-he took advantage of them and bought and sold prop

erty. "I have never realized," said Judge Shipman, "what a help it is to have a good counsel in matters of deeds and settlement of business matters until yesterday. Such men are valuable partners in a firm's business. I have just settled an estate or found it all settled by a joint deed which left a fine property to the wife without any court proceedings-simply by looking ahead in sea

son."

These two men have grown eminent and well-off by kind, fair, and ingenious treatment of clients-many others drive away custom by overcharging and carelessness. If the example of the first named is a lesson, it is certainly a wise one. But every one must use his own weapons. One may be small,

like Spurgeon-then let him be as earnest and he will approach this wonderful speaker. Another may be plain and practical, with few gifts of oratory or eloquence-such men are more useful as judges or corporation counsel. Still another may be poor and just struggling for a foot-hold-let him use the ladder of in

tegrity, for it will soon bear him higher, while the quality of his work, the extent of his acIt quaintance, must influence his business. may be he can form in the procession by joining a firm and watching for an opening. If ingenious and determined that will help him. Let him make an honest measure of his ability and go forward on the right road in confidence.

Practice is always precarious, for a few years at least, and never afterwards if one is prepared for it. It is the beginning that counts in law, letters, or farming. As a tree grows larger from all branches, so law business increases by the good name given you by your clients. Live and labor for a good name and you will find it a fee, a retainer, and a fortune. Don't give up too easily. In your section in the great Northwest, are firms forming contracts to make, wills to draw, men to defend, money to handle. Mingle with the world with frankness-the friendly will have friends everywhere-and success depends on how many you can grapple to you with hooks of steel. Every man that gives you a good name is a client.

J. W. DONOVAN.