Another prejudicial distinction was discarded next year:

"The calendar is law of which we as judges must take notice. Such a fault may be assigned for error ore tenus at the Bar. ''15

Time, however, was given to Serjeant Hall to argue the second point, but the result was the same.

By the end of the first quarter of this century the second point became strongly established, but as to the first some doubt still continued to exist. As late as 1720 Pratt, C. J., said this:

"to affirm a judgment we will look into the almanack, but I think we are not bound to do it to reverse one. 16

But a hundred years later the doctrine under review was upheld even at nisi prius. In R. v. Brown, Littledale, J., remarked:

"Even at this stage I am bound to take judicial notice that the day averred in the indictment is in fact within the period mentioned in the statute. ''17

The last English case where the point. was raised is Hanson v. Shackelton, where the following statement was made by Coleridge, J.:

"I have consulted the other judges of the court and they are of opinion that I ought to take judicial notice of what

(14) (1703) 6 Mod. 81 and see Brough v. Parkings (1703), 2 Lord Raymond 992.

(15) (1704) Harvey v. Broad, 6 Mod. 196 and at p. 160; 2 Salk. 626.

(16) Hoyle v. Lord Cornwallis, 1 Strange 387. (17) (1828) 1 Mood. & Malk, 163.

the day was on which the day of the month fell." 18

Thus far we have dealt with one branch of our survey, and now let us pass to the consideration of the second, namely, judicial recognition ex officio of the days of the court's term. We commence here with a case dating from the end of the sixteenth century. In Bishop v. Harecourt,19 three justices said that where plaintiff expressly alleges that the term began on June 7 and defendant does not deny it, the justices are not constrained to search the rolls of the court. And Anderson, J., who opposed this view of the law gave judgment for the plaintiff against his own opinion.

Thirty years barely elapsed when Justice Anderson's opinion was fully vindicated in the case of Austen v. Bewley,20 where it was said that the Court takes ex officio notice of the commencement of the term.

It will be noticed that the two last cases merely established the rule that the Court takes judicial notice only of the commencement of the term. It is only gradually that the rule was extended to cover the whole term of the court. Only six years later, in Mitchel v. Ramsay, Jones and Doderidge, JJ., said:

"Les termes de Pasche et Trinite commence sur moveable feasts et guide pur le change del lune. Et pur ceo si il ne alleadge de facto que le terme finie devant le 21 Julii nous ne interdomus, mes fuit issint averre en essignment d'error. ''21

This doctrine that the Court takes judical notice of immoveable feasts, but not of moveable seems to have been upheld in another case closely following the one just cited:

"Oncore le Court nest lie a prendre notice de ceo sans avernment de ceo, nec a inspecter Almanack pur ceo. Mes fuit

dit per Justice Jones que ils sont lie a prendre notice de immoveable feasts nesmy de moveable feasts come ceo est. 22

The year 1666 was especially rich in decisions upon the point now under consideration. In Courtney v. Phelps it was held that the Court is not obliged to take notice of the day of the month on which the return of the moveable term falls The judges expressed divergent opinions as to how such a fact is to be tried. Windham J., said that:

"had an issue been joined upon it, it were triable by the almanacks as well as words by dictionaries, which are proofs." But Twisden, J., declared:

"the Court is to take notice that Hilary term begins eight days after the feast, but not on what day of the month that feast is, and though a day were put as a fact in issue it must be tried by jury and not by almanacks. '

In Champion v. Skipweth:

1125

"le Court doubt si il doent prender notice del jour del mois del commencement et fine des termes de Trinite et Pasche quia sont moveable. Finally, in re Sterling the Court took judical notice of the end of the term. The reporter's note adds: "coment ne voent ceo faire in le primer cas, devant."26

By the end of this century the judges seem to have adopted a compromise between the two extreme views. In Kelsey v. Greene decided in 1674 it was said:

"per Curiam: the Court at discretion may by almanacks examine whether the day be after the term.

and

days of the terms or at least its indiscretion. ''28

Another step forward was made in Ball v. Rowe. The report s'ates that:

"The Court will take notice of the end of term. ''29

In the next case of Pullein v. Benson, doubt was cast upon the hitherto prevailing opinion in regard to the non-recognition of the days on which moveable terms fall,

e. g.:

"for they (the Court) will take notice of the beginning and end of the fixed terms, if they will not of the moveable terms. '30

And only the eighteenth century brought about complete recognition of the doctrine. Thus, in Thompson v. Southwell it was said:

"The Court would judicially take notice of the first day of that term. viz, what day of the month it was. ''31 And, finally, in Estwick v. Cooke it was affirmed that:

"The Court will take notice of the beginning and end of a moveable term." We have now completed the tracing of the origin of the modern legal doctrine that the Court takes judicial notice of the time. We have seen that it had developed from the ancient mode of proof known as the trial by almanacs. It remains for us to test the modern rule by proving, if pos sible, that the almanac still governs the application of the present day law on this point.

In Collier v. Nokes, the Court was asked to take judicial notice of a certain hour, and Wilde, C. J., said:

"The Court took judicial notice of the days of the calendar, but not of the hours. In case like this if the time was material it must be proved. And in Tutton v. Darke34 the Court did

1933

(31) (1701) 12 Mod. 647.

(32) (1729) 2 Lord Raymond, 1557.

(33) (1849) 2 C. & Kir. 1011.

(34) (1859) 29 L. J. Ex. 271.

not know without the proof whether a certain hour was after sunset and another hour before sunset. Such decisions are difficult to reconcile or explain, granted that we know that the Court does take judicial notice of the divisions of time. The answer to the riddle is supplied by Chief Baron Pollock in the last mentioned case: the old almanac does not give the time of sunrise and sunset or the hours, for the smallest division of time contained in it is the day. So that, we may justly paraphrase the late Professor Maitland, that the trial by almanacs is dead, but its spirit still rules us from its grave.

There are two American cases which seem to accept the view that the Court takes judicial notice of the hours-such, at least, is the opinion of some of the text writers on the law of evidence.35

In Safford v. Douglas the opening words of M'Coun, V. C., are:

"It seems that courts are bound to look to the fractional parts of a day in order to determine the priority of liens by judgment and executions where several have been obtained on the same day.36

"The revised statutes, vol. 2, p. 359, par. 3, speak of 'the time' of docketing a judgment (not of the day) as giving a lien on lands; and executions take effect, as to personal property, from the hour and minute they are received by the sheriff; and they are to be paid in the order in which they are received-the exact time being noted upon them by the officer. The case of Lemon v. Staats (1823); 1 Cowen 592, is a direct and explicit authority for the rule; and see 2 R. S. 365, par. 13. And the same rule is applicable here, in respect to the filing of creditor's bills which create an equitable lien, as at law with respect to judgment and execution."

This case was, therefore, clearly decided. on statutory grounds.

The second authority, which is the case of Hedderich v. The State37 is still less in point. It was held there that the Court takes judicial notice of the usual method of reckoning time, for this is a matter of common knowledge. Such common knowledge was applied there by the Court in interpreting a sentence in a statute which mentioned a period of time "between the hours of eleven p. m. and five o'clock a. m." This decison, therefore, in no way may be cited as an authority for a proposition that the Court takes notice ex officio of the hours, minutes and seconds.

In Finney v. Callendar, Emmett, Chief Justice of Minnesota, said:

"As to the other question3s the plaintiff claims that such an answer is deceptive as indicating only that the time of making the note was misstated without advising nim of the defense relied upon. On the other hand the defendant urges that the allegation is sufficient the Court being bound as they allege to take judicial notice of the calendar time.

"The almanac has long been regarded and held as a part of the law of the land. It cannot be said to be a special law, therefore it must belong to the general law; and being so it is governed by the ordinary rule applicable to all general laws and need not be specially pleaded. At least the necessity of making this exception has not been demonstrated to

INSURANCE-MISREPRESENTATION OF MODEL OF AUTOMOBILE

FELAKOS v. AETNA INS. CO.

119 Atl. 277

(Sup. Court of New Jersey, Nov. 8, 1922)

The warranty that the automobile insured against theft was a model 1916, when in fact it was a model 1913, was of a material nature, defeating recovery on the policy.

William Huck, Jr., of Jersey City, for appellant.

Feinberg & Feinberg, of Bayonne, for appellee.

PER CURIAM. This was a suit based on a theft policy covering an automobile. On the trial it appeared that the automobile was described in the portion of the policy entitled "Warranties" as model of 1916 when in fact it was of model 1913.

(1) The trial judge was asked, and refused, to find for defendant on the ground that this was a breach of warranty, which was expressed by the terms of the policy as to "the description of the automobile insured" and other matters. The ground of this refusal seems to have been that the plaintiff believed the year was correctly given, relying on Dimick v. Metropolitan Life Ins. Co., 69 N. J. Law, 384, 393, 55 Atl. 291, 62 L. R. A. 774. But that case is not in point, for the statement before us was not of an opinion or belief, but of a fact warranted as such, and is not a matter which the insurer must know is not within the personal knowledge of the applicant; on the contrary, the natural assumption would be that an owner would know the year's model of his car.

(2) The warranty was of a material matter within the plain implication of Rabinowitz v. Vulcan Ins. Co., 90 N. J. Law, 332, 100 Atl. 175.

The judgment will be reversed. We take the liberty of suggesting to counsel for respondent that, to incorporate into a brief part of the opinion of the court below, apparently as original matter, is not calculated to impress the court with the industry of counsel.

NOTE-Misrepresentation as to Year of Manufacture as Avoiding Automobile Insurance Policy. Representation by insured that the automobile intended to be covered was a 1910 model, when in fact it was a model of 1906, was held to avoid the policy and defeat recovery thereunder for loss of the machine. Reed v. St. Paul F. & M. Ins. Co., 165 App. Div. 660, 151 N. Y. Supp. 274.

Likewise held where a 1907 car was represented to be a 1910 model. Smith v. American Auto. Ins. Co., 188 Mo. App. 297, 175 S. W. 113. And where a car represented to be a 1909 model was in fact a model of 1906. Solomon v. Federal Ins. Co., 176 Cal. 133, 167 Pac. 859.

And where a 1906 model was said to be that of 1907. Harris v. St. Paul F. & M. Ins. Co., 126 N. Y. Supp. 118.

In Felakos v. Aetna Ins. Co., N. J. L., 119 Atl. 277, it is held that a statement that the automobile insured against theft was a model 1916, when in fact it was a model 1913, was a breach of warranty as to the description of the automobile insured, and not a statement of opinion or belief or of a matter which the insurer knew was not within the personal knowledge of the applicant, and defeats recovery under the policy.

A representation that the automobile insured against theft and fire was a 1918 model, when in fact it was a 1917 model, the list price of which was less than the list price for the 1918 model, was material to the risk and would avoid the policy as matter of law, even though the representation was innocently made, if it was relied on by the insurer and formed the basis of the insurance. Kenney v. Franklin

Fire Ins. Co, Mo. App. 247 S. W. 249.

Where, however, the company knows, or has means at hand to ascertain the year in which the car was made, a misrepresentation as to that fact will not necessarily prove fatal to recovery. British & F. M. Ins. Co. v. Cummings, 113 Md. 350, 76 Atl. 571; Berryman v. Maryland Motorcar Ins. Co., Mo. App., 204 S. W. 738.

In Locke v. Royal Ins. Co., 220 Mass. 202, 107 N. E. 911, it was held that the question whether such misrepresentation was material was for the jury, the other information supplied being correct.

ITEMS OF PROFESSIONAL INTEREST

LAWMAKING.

Nearly every man thinks that he is naturally fitted to govern his fellow man and generally he has some pet theory he would put to the test of some hobby he would enforce all others to obey. Read what they are proposing in some of the state legislatures over the country:

A measure prohibiting smoking in public places is now pending in the Minnesota Legis lature. Another in the New York Assembly would limit the amount of damages collectible for broken hearts in breach of promise suits to 6 cents.

The Arkansas and Oklahoma Houses of Representatives have passed bills which would prohibit the teaching of the theory of evolution in public schools.

A bill to abolish all athletics in schools maintained by the state, including the univer

sities, has been introduced in the Kansas House of Representatives.

Pensioning of farmers is asked in a joint resolution now before the Kansas Legislature. The plan proposes a pension of $10 a month for every farmer who has actually farmed for ten years, $20 a month for one who has farmed twenty years and $30 a month for thirty years.

In Minnesota, too, any person who willfully furnishes a newspaper with a false statement is guilty of a misdemeanor, under the terms of a law enacted by the present Legislature. The law is aimed at practical jokers and malicious persons who send in false notices of weddings, engagements or other "events." Any person who gives such misinformation to a newspaper "willfully, knowingly and maliciously" comes under the provisions.-Saturday Blade.

SELLING DEADLY LIQUOR MADE MURDER BY BILL.

A bill has been introduced in the New York legislature proposing to add to the legal definition of murder, in this state, the following: "Any person who sells, gives away, or otherwise furnishes intoxicating liquor which causes the death of a human being is guilty of murder in the first degree and punishable accordingly." -Chicago Legal News.

NONAGENARIANS IN THE LEGAL PROFESSION

The Law Times, in an interesting article on the legal changes of 1922, notes the passing away of a large number of distinguished or well-known figures in the courts whose average age it estimates at eighty-five years and several of whom had lived nine decades. This is certainly a remarkable testimony to the longevity of successful lawyers. Our contemporary explains this longevity by the possession of "regular daily habits of mind and body," plus the attribute of "character" in men who do well in the legal profession. No doubt, this has its effect. But among artisans and farmers and men of business similar regularity of habit and possession of character by no means necessarily seem to have the same effect. We rather think the correct explanation is different. What is true is that the Bar, essentially a "wearing" profession involving strenuous labor, requires as a rule exceptional robustness of constitution in those who succeed in it; even temporary illness often destroys a young man's practice for years, if not forever. Those who

succeed have usually a vigor of body and mind, which of itself accounts for their longevity.Solicitors' Journal (Eng.), Jan. 6, 1923.

BOOK REVIEWS

BRIEF DRAWING.

This

Judges, especially of appellate courts, would no doubt commend this volume to all practicing lawyers. Lack of scientific preparation of briefs is a common cause of complaint. lack imposes upon the judges great additional labor as well as annoyance. The subject of brief drawing is apparently but little considered by lawyers generally, when the fact is that it is one of very great importance.

The author of Brief Drawing is Mr. Ralph Curtis Ringwalt, A.B., LL.B., of the New York Bar. He is also the author of Briefs on Public Questions, Modern American Oratory, Etc. The publishers are Longmans, Green & Co., New York. The book contains 214 pages.

Mr. Ringwalt treats his subject in a logical and systematic manner. Part I, being introductory, treats of, to use the chapter titles, The Brief and Its Importance; Library Research; Reading and Note Taking. Part II is headed The Elements of Argumentation, and covers The Topic; The Audience; What Must Be Proved; Method of Proof; Proof-Reasoning and Proof-Evidence. Part III, entitled Brief Drawing, contains chapters on, The Elements of the Brief Form; The Explanatory Paragraph; The Argumentative Paragraph; The Introduction; The Argument; The Conclusion; The Brief as a Whole.

The book is well and interestingly written, and fully meets the stated purpose, which is: "To tell: (1) how to collect facts, (2) how to reason about them logically, and (3) how to organize them systematically.

The work is recommended for its practical value to the practicing lawyer. In these days of high prices and profiteering, the price, $1.50 net, has a strong appeal.

CASES ON BUSINESS LAW

Acknowledgment is to be made to the West Publishing Company for "Cases on Business Law," by Prof. Britton of Indiana University, and Bauer of the University of Illinois, recently come to hand. This comprehensive collection of cases, although expressed to be intended for the use of students in schools of commerce and business administration, will please the professional law student as well. A particularly happy arrangement is that an explanatory