11. EVIDENCE. [Insanity—Will.] Evidence of Testator's Mental Condition Subsequent to the Execution of the Will when Admissible.-In an action involving the question of the validity of a will, where insanity of a testator is alleged, and the disease causing his insanity was a progressive one, a witness may testify as to the condition of testator's mind at a period prior to the execution of the will. [Citing People v. Sanford, 43 Cal. 33; Estate of Fromes, 54 Cal. 509.] Estate of Dalrymple, S. C. Cal., Sept. 18, 1885; 7 Pac. Repr. 906.

12. JUDGMENTS. [Fraud.] When Set Aside in Equity for Fraud.-Judgments will not be set aside on the ground of fraud, unless such fraud was practiced in the very act of obtaining the judgment, without any default of the party against whom the judgment was rendered, or of his counsel. [In the opinion of the court by Myrick, J., it is said: "Where a judgment is attacked and sought to be set aside for fraud, the 'fraud must have been practiced in the very act of obtaining the judgment, or else it will be concluded by the judgment at law, where fraud is equally a defense as in equity.' 2 Story Eq. Jur. 1575. "The rule of the best considered and more recent cases upon the subject, is that the party must have failed in obtaining redress in the suit at law; by the fraud of the opposite party, or inevitable accident or mistake, without any default either of the party or his counsel.' 2 Story Eq. Jur. 1574, note; French v. Garner, 7 Port. (Ala.) 549; Ede v. Hazen, 61 Cal. 360; Weir v. Vail, 4 Pac. Rep. 422; U. S. v. Throckmorton, 98 U. S. 61.] Zellerbach v. Allenberg, S. C. Cal., Aug. 17, 1885; 7 Pac. Repr. 908.

13. JURISDICTION. [Probate Court.] Judgment of Distributing Exempt Property of Widow is Void. -A decree of the probate court distributing the estate of a deceased husband is void so far as it includes money derived from the sale of the homestead right, or personal property, owned by his widow, whose death was subsequent to that of her husband, and whose estate was unadministered; and an action cannot be sustained against the administrator and his surety on the probate bond by an heir to recover his portion of his mother's estate so included in the decree distributing his father's estate. [In the opinion of the court by Veazey, J., it is said: "The probate court does not proceed according to the course of the common law; but has a special and limited jurisdiction given by statute; and if it appear on the face of the proceedings that it has proceeded in a manner prohibited, or not authorized by law, its orders and decrees are absolutely void, and may be treated as a nullity. Hendrick v. Cleveland, 2 Vt. 329; Smith v. Rice, 11 Mass. 507; Hunt v. Hapgood, 4 id. 117; Sumner v. Parker, 7 id. 79."] Probate Court v. Winch, S. C. Vt., Oct. 1, 1884; 1 Eastern Repr. 642.

14. PARTNERSHIP. [Receiver.] When Lien not Obtainable on Funds of Insolvent Partnership after Appointment of Receiver.-It is not possible to obtain a lien on assets of insolvent partnership by taking judgment and filing creditors' bill on claim after such assets have passed into hands of a receiver for payment of debts, and the debtors have been called to go before him and prove up their claims. Quære, whether a right to priority can be acquired by taking judgment before creditors are called. But where a receiver is appointed simply to hold the property or funds pending the adjustment of equities, the creditors are not bound to

wait until such equities are adjusted, but may proceed to take judgments and fix priority of liens in case the bill should be withdrawn and the receiver dismissed. [The court examined the following cases: Waring v. Robinson, 1 Hoff. Ch. 524; Holmes v. McDowell, 15 Hun, 585; s. c., aff'd., 76 N. Y. 596; Law v. Ford, 2 Paige, 310; Van Alstyne v. Cook, 25 N. Y. 489; Manard v. Bond, 67 Mo. 315; Ross v. Titsworth, 37 N. J. Eq. 333; Ellicott v. U. S. Ins. Co., 7 Gill, 307; Adams v. Hackett, 7 Cal. 187; Adams v. Wood, 8 Cal. 152, and 9 Cal. 24.] Jackson v. Lahee, S. C. Ill., June 13, 1885; 2 N. E. Repr. 172.

15. PRIVATE INTERNATIONAL LAW. [Foreign Chattel Mortgage.]-Follows the Property when Removed to Another State.-A chattel mortgage executed in New York, and valid there, is valid here, when the owner comes into Vermont with the property. [In giving the opinion of the court, Powers, J., said: "In New York, as here, a chattel mortgage duly executed and registered vests the title in the mortgagee, subject to the mortgagor's right of redemption at the time fixed in the condition. Failing to redeem, the mortgagor's right is lost at law,and the mortgagee gets an absolute title. If the creditors of the mortgagor attach the chattel mortgaged, or subsequent mortgages of it be executed, such creditors and mortgagees take only the interest of the mortgagor in the chattel and hold it exposed to forfeiture for breach of condition by the mortgagor. After breach of condition the mortgagor has no attachable interest in the chattel. Champlain v. Johnson, 39 Barb. 608; Judson v. Easton, 58 N. Y. 664. This court held in Jones v. Taylor, 30 Vt. 42, that a chattel mortgage executed in New York and valid there, without a change of possession, would protect the property here against attachment, though found here in the possession of the mortgagor; and the court overruled the earlier case of Skiff v. Solace, 23 Vt. 279, holding a contrary doctrine. The same doctrine was reaffirmed in Cobb v. Buswell, 37 Vt. 337, where the property mortgaged was brought to Vermont from New Hampshire by the consent of the mortgagee. In some States a different rule prevails, but the law in this State is firmly established by the cases cited." Norris v. Sowles, S. C. Vt., Jan., 1885; 1 Eastern Repr. 666.

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 ANSWERED.

Query No. 25. [21 C. L. J. 370.]-Under the laws of Alabama, stock in an incorporated company is liable to levy and sale under execution. The execution is a lien from the levy. A., having recovered judgment against B., caused an execution to be levied on certain stock owned by B. in an incorporated company, pursuant to the statute, on the day of February, 1885. On the day of -, 1885, the company declared a dividend on the stock. On the day of May, 1885, the sheriff sold the stock, and the same was duly transferred on the books of the company to the purchaser. Who is entitled to the dividend declared after the execution became a lien, and before the sale-the defendant, or the purchaser?

Answer.-The service of an attachment is the seizure of the thing by the officer of the law, so that the judgment and sale relate back to the levy, and the purchaser's title takes effect from the date of the levy. Loughridge v. Bowland, 52 Miss. 558; Taylor v. Lowenstein, 50 Miss. 281. Where an enrolled judgment is by law a lien on the defendant's property, the title to the execution purchaser relates back to the date of the judgment. Gould v. Luckett, 47 Miss. 114; Adams v. Harris, 47 Miss. 156; Walton v. Hargroves, 42 Miss. 26. As an execution becomes a lien on personal property at the date of its levy, where the judgment is not a lien by statute (see Freeman on Executions, secs. 195, et seq.), the title of the execution purchaser must relate back to the time of the levy. Hence, a dividend declared on stock in a corporation after the levy of an execution on the shares and before the sale, should go to the execution purchaser. J. D. G.

Vicksburg, Miss.

Query No. 26. [21 C. L. J. 371.]—LETTING PUBLIC CONTRACT TO OTHER THAN LOWEST BIDDER.-The town of - advertise for sealed proposals for building a school-house “according to plans and specifications which may be seen at town hall upon application to janitor. All proposals to be addressed to Hchairman of Committee on Buildings," etc." This committee were elected at a town meeting, and authority conferred on them to make a contract for the erection of a school-house. This committee in their advertisement did not reserve the right to reject any and all bids. Three bids were made in conformity to the advertisement. The contract was awarded to the highest bidder, who also was a member of the committee, but resigned for the purpose of bidding on the contract. The lowest bidder is responsible and capable. Can the lowest bidder maintain an action for damage against the town?

Answer. The lowest bidder cannot maintain an action against the town. The functions of the committee were in large measure judicial, involving the exercise of discretion not subject to control by the courts. In the absence of some legislative requirement the contract need not be let to the lowest bidder. His bid vests no enforceable right in him, until award is made to him. Read text and cases cited. High on Extraordinary Remedies, secs. 91 to 94, inclusive (2nd edition). Even if the charter of the town required contracts to be awarded to the lowest bidder, the town would not be liable for a violation of the provision, but could plead the illegality of the action of the committee in defense. Dillon on Municipal Corporations, 3d edition, sec. 466. Whether, in an aggravated case, the committee could be controlled by mandamus, see authority first cited. H. M. WILTSE.

Chattanooga, Tenn.

Query No. 27. [21 C. L. J. 371.] EFFECT OF WITHDRAWAL OF ATTORNEY.-Will the withdrawal of an attorney from a pending cause, by leave of the court obtained at his request, but in the absence and without the knowledge of his client, have the effect also to withdraw the appearance and pleadings of his client, on file, and subject him to a judgment by default?

Answer. A citation of cases is not necessary in answering this query. Perspicua vera non sunt probanda. A consideration of the relation of attorney and clientagent and principal-solves the question. The acts of an attorney are the acts of his client, when performed within the scope of his employment. Where an attorney has filed or served an appearance and pleading, the client and not the attorney has appeared and plead. He is in the action by virtue of his own act

done through the medium of an agent-the attorney. The application of the attorney, to the court, to be relieved of his trust is purely a personal matter, and he but seeks to change his relation to his principal, and not that of his principal to third parties. Reasoning from the principle of the law of agency, before stated, the withdrawal of an attorney from an action pending, would no more subject his client to a judgment by default, than would that of an agent, in a commercial transaction, rescind the contract or overtures for one, or give either party an advantage over the other. The status of the client will not be affected by the withdrawal. He can substitute another attorney and proceed in the action. J. T. WALSH. New York.

JETSAM AND FLOTSAM.

THE ART OF QUESTIONING.-Not a few lawyers, who have the ear of the court and jury, fail in the examination of witnesses. A lawyer who abuses a stupid witness, or browbeats an obstinate one, is not doing that which he is paid to do—that is, to draw out the truth.

In a trial for murder, the result of a broil, the principal witness for the prosecution swore strongly against the prisoner. O'Connell, who defended the prisoner, cross-examined the witness in this persuasive style:

"Were you not after taking a drop when this happened?"

"Sartainly, I took a drop that day."

"How much might the drop have been-a glass?" "Yes, I drank a glass of spirits, surely."

The jury discredited the witness's testimony and acquitted the prisoner, whose life was saved because O'Connell was a master of the art of questioning.

Lord Chief-Justice Coleridge, of England, when at the bar, was noted for his skill as a cross-examiner. He never bullied or flustered his witness, and he got out of even the most reticent what he wanted.

The witness, if a rough woman, was addressed as if she were a lady; if a rough man, as though he were a gentleman. The lawyer's suavity was so fascinating that in a few minutes the witness felt that he, as the counsel's friend, was giving him just the information he needed to extricate himself from a difficulty. Coleridge's manner said,

"My good friend, won't you help me? I really am perplexed as to the facts in this case, and I want your assistance to get at the truth. Let me ask you a few questions."

When these questions had been answered in the exact way in which the questioner had designed they should be, the case was won. The high art of the lawyer's questions had won it, before he had uttered a word to the jury.-Youth's Companion.

"On this subject we print elsewhere the letter of a valued correspondent, which arrives most opportunely with regard both to Mr. Hunter's paper and to our observations on this subject last week. It appears that, in the State of Iowa, there is a complete system of registration of titles to real estate, and our correspondent had recently to carry through a purchase of land in that State. He tells us that he found no difficulty in getting a conveyance of the legal estate, but, before completion, there came a process poetically described as the removal of the clouds"-that is to say, the getting in of incumbrances and outstanding estates. The process of "waiting till the clouds rolled by" involved most vexatious delay, and the costs of conveyance ultimately exceeded the scale fee in England. It is true that most of these costs fell on the vendor, but what both Mr. Holt and other writers on the subject forget is that, to accomplish the object of promoting the transfer of land, you must make such transfer cheap both to the vendor and to the purchaser. Simple shifting of costs from the purchaser to the vendor would be a ridiculous result of land transfer reform. We do not say that the difficulty to which we have above referred is insuperable, but we do say that it is the one point to which the advocates of any system of registration of title would do well to direct their careful attention."

question that those who advertize for this species of litigation ought not to be allowed to remain members of the profession; but whether they can be expelled from it under existing laws may be doubtful.

RIGHT OF PRISONER TO HAVE HIS CHAINS REMOVED DURING HIS TRIAL.-The rule laid down in several courts that the defendant in a criminal case may, of right, require to have his chaims removed during his trial, illustrates how rules of the common law, absurd and inconvenient, remain after the reason which originally led to their adoption has long ceased to exist. The rule was originally founded in necessity. The prisoner was not allowed to appear by counsel. He was obliged to write his own challenges to the jury, to examine his own witness, and to cross-examine the witness of the crown. It was therefore essential to his defense that he should have the use of his hands for writing; and that, and that alone, was the origin of the rule that the prisoner should have his shackles removed during the trial. But when he came, in the progress of enlightenment, to be allowed the privilege of counsel, the reason of the rule ceased. On every legal analogy, it then became a matter of sound discretion with the judge presiding at the trial, whether he would order the shackles of the prisoner to be removed or not. If the prisoner was a dangerous person, liable to assault the opposing counsel or witnesses, or to attempt to escape, the exercise of a sound discretion would require that he should remain shackled. Nevertheless, an American court, adhering to the rule adopted by the English judges, overlooking the reason upon which it was founded, held that to try a prisoner in shackles, was a violation of his rights, for which the conviction would be reversed. This decision was inadvertently followed by two courts in Missouri, in a case in which the prisoner, who had committed a most atrocious murder, made a murderous assault upon a person in the court room during a former trial, and was accordingly ordered by the judge to be kept in shackles

1 People v. Harrington, 42 Cal. 165.

during the subsequent trial.2 The rule has been inadvertently followed by the Supreme Court of Oregon in a late case. There, a prisoner in the penitentiary was indicted for assaulting with a deadly weapon, and wounding an officer of the penitentiary having him in custody. He was brought into court in his prison fetters. His counsel moved the court to have his fetters removed, but the court overruled the motion, on the ground that the irons were "put on the defendant at the penitentiary and could not be removed without much delay, aud it would require the work of a blacksmith to remove them," to which ruling the prisoner's counsel excepted. It was held that this was error for which the judgment must be reversed. In giving the opinion of the court, Mr. Justice Waldo merely said: "On the second point, that it was error to keep the prisoner in fetters during the trial, the opinion in the case of State v. Kring, 1 Mo. App. 438, leaves nothing further to be said. The case was affirmed on appeal. 64 Mo. 591. The point was ruled the same way in People v. Harrington, 42 Cal. 165, which seems to have been the first case in this country where this ancient rule of the common law was considered and enforced."

2 State v. Kring, 1 Mo. App. 438; s. c. Affirmed, 64 Mo. 591.

3 State v. Smith, 5 Pac. Repr. 343.

NOTES OF RECENT DECISIONS.

WARRANTY WARRANTED SATISFACTORY IN EVERY RESPECT."-In Singerly v. Thayer1 the Supreme Court of Pennsylvania had occasion to consider the meaning of the words in a proposition to construct a machine, warranted satisfactory in every respect." 'The court hold that these words, without other qualifying words or circumstances, mean satisfactory to the promisee,-not merely that the machine should be such as would satisfy a reasonable man, or as reasonably ought to satisfy the promisee; but that such a warranty constitutes the purchaser the sole judge of the fitness of the thing for his purposes.

1 Centr. Repr. 52.

At

the same time the court admit that his right of rejection is so far limited that it must be exercised in good faith, and not out of mere caprice. This will appear from the following extract from the opinion of the court, given by Mercur, J: "When the agreement is to

ue.

make and furnish an article to the satisfaction of the person for whom it is to be made, numerous authorities declare it is not a compliance with the contract to prove he ought to have been satisfied. It was so held in Gray v. R. R. 'Co., where the contract was for the purchase of a steamboat; in Brown v. Foster, where the agreement was to make a suit of clothes; in Zaleski v. Clark, on a contract for a plaster bust of the deceased husband of the defendant; in Gibson v. Cranage, where a portrait was to be satisfactory to the defendant; and in Hoffman v. Gallaher, where a portrait of defendant was to be satisfactory to his friends. So where a person got a set of teeth from a dentist under an agreement that they were to be satisfactory, it was held, in Hartmen v. Blackburn, that he was made the exclusive judge of their valTo justify a refusal to accept the elevator on the ground that it is not satisfactory, the objection should be made in good faith. It must not be merely capricious. It is declared in 1 Pars. Cont. 542, if A. agrees to make something for B. to meet the approval of B., or with any similar language, B, may reject it for any objection which is made in good faith and is not merely capricious. That case arose on a written agreement to build a carriage in a manner which should meet the approval of the person for whom it was to be made, not only on the score of workmanship, but also that of convenience and taste. It was held that his rejection, made in good faith, was conclusive." We submit that the proposition that the promisee is to be the sole judge of the fitness of the article, coupled with the qualification that he must act in good faith and not capriciously, is equivalent to the proposition that such a warranty means satisfactory to a reasonable

2 11 Hun 70.

3 113 Mass. 136.

4 44 Conn. 218.

5 39 Mich. 49.

66 Daly, 42.

77 Pittsb. Leg. J. 140.

8 Andrews v. Belfield, 2 C. B. (N. S.) 89 Eng. Com. L. 779, is cited to support this view.

8

man in the situation of the promisee, or that the article will be such as ought to satisfy the promisee. In a late case the agreement was to erect a furnace "in a good and workmanlike manner, and to guarantee the said furnace to work satisfactorily in melting iron." In an action by the promisee for a breach of this contract, it was held that the court properly rejected evidence that the furnace did not work to the plaintiff's satisfaction, and that the court properly gave an instruction to the effect that the contract was satisfied provided the furnace worked reasonably well.9

TRIALS. [NEW TRIALS.] IMPROPER REMARKS OF COUNSEL TO THE JURY.—Apropos of our remarks upon this subject in our last issue we may cite a recent decision, of the Texas Court of Appeals, 10 where in the opinion of the court by White, P. J., the following appears: "The seventh and eighth bills of exceptions are complaints of remarks indulged in by the District Attorney, the most objectionable of which perhaps was that 'the State of Texas might be raked over with a fine tooth comb, and a more notorious character than the defendant, John House, could nowhere be found.' The objection to this The objection to this remark, as stated in the bill, is that defendant's character had not been put in issue. True, his character had not been put in issue directly by himself, still, the charge against him, and the evidence which had been adduced to support it, were in their nature likely to reflect somewhat unfavorably upon his character, even if they did not put its notoriety thoughout the State, in issue. We construe the remark to be not so much evidence of a desire to make use of foreign matter to the injury and prejudice of the defendant as an impassioned expression, highly exaggerated it may be, but inadvertantly springing from the heat of debate. If all such remarks were held reversible error, but few convictions would stand the test where the case had

11

the evidence than mere opinions, or independent statements by the District Attorney. We cannot say they were entirely unwarranted by the evidence. With regard to this subject it was said in Pierson v. State: 'In view of the frequency of exceptions of this character we will take occasion here to say that before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us-1. That the remarks were improper. 2. That they were of a material character, and such as under the circumstances were calculated to injuriously affect the defendant's rights." 12

COUNTIES. [NEGLIGENCE.] COUNTY NOT LIABLE FOR NEGLIGENCE OF PHYSICIAN.-In Summers v. Board of Commissioners, 13 it is held by the Supreme Court of Indiana that counties cannot be held liable for misfeasance or negligence of their officers; hence they are not liable in damages for the want of skill of a physician employed by the Board of County Commissioners to attend the poor of the county. In giving the opinion of the court Mr. Justice Elliott uses the following language, in which, it will be observed, he pays an encouraging compliment to this JOURNAL: "The commissioners are public officers. charged with the performance of public duties, and in the performance of public dutiesthey are not mere agents. It is true that officers occupying positions similar to those held by county commissioners, are often spoken of as agents, and, in some cases, it is perhaps proper to treat them as agents. But even where such officers are regarded as agents, a broad and important difference is noted between public and private agents, and essentially different rules govern the twoclasses.14 Where the duties delegated to officers elected by public corporations are political or governmental, the relation of principal and agent does not exist and the maxim

counsel in the court below. The remarks set out specifically in the ninth bill of exceptions are rather deductions and arguments upon

Pope Iron and Metal Co. v. Best, 14 Mo. App. 502. 10 House v. State, 5 Tex. Law Rev. 675.

11 18 Tex. App. 525.

12 See further on this subject 18 C. L. J. 363. 13 1 Western Repr. 217.

14 Newman v. Sylvester, 42 Ind. 106; Axt v. Jackson School Tp., 90 Ind. 101; Reeve School Tp. v. Dodson, 98 Ind. 497; Union School Tp. v. First Nat. Bank (Nov. Term, 84); Platter v. Board, (this Term.).