Слике страница
PDF
ePub

Ferrell v. Maxwell, 28 Ohio St. 383, 22 Ain. Rep. 393; and others—resting on the rule applied in Apgar's Admrs. v. Hiler, 24 N. J. Law, 812. The remark of Bayley, J., in Thomas v. Cook, that a promise to indemnify was not witbin either the words or the policy of the statute, bas caused much of the confusion existing on this subject, but is more than counterbalanced by the observations of Lord Denman in Green v. Creswell, 10 Adol. & E. 453, and Pollock, C. B., in Cripps v. Hartnoll, 4 Best & S. 414, to the effect that a promise to indemnify may be also an undertaking to answer for the debt or default of another, and that when it is it comes within the operation of the statute. Another circumstance taking cases out of the simple class with wbicb we are now concerned is that mentioned in Kutzmeyer v. Ennis, 27 Y. J. Law, 371, 376, viz., the existence of a new consideration beneficial to the promisor, or, as it is sometimes expressed, moving to the promisor. Such cases are Smith v. Sayward, 5 Greenl. 504; Lucas v. Chamberlain, 8 B. Mon. 276; Mills v. Brown, 11 Iowa, 314; Reed v. Holcomb, 31 Conn. 360; Smith v. Delaney, 64 Conn. 264, 29 Atl. Rep. 496, 42 Am. St. Rep. 181; Potter v. Brown, 35 Mich. 274; Comstock v. Norton, 36 Mich. 277; Harrison v. Sawtel, 10 Jobps. 242, 6 Am. Dec. 337; Sanders v. Gillespie, 59 N. Y. 250 : Tigbe v. Morrison, 116 N. Y. 263, 22 N. E. Rep. 161. 5 L.R. A. 617. Cases of still another cbaracter are sometimes cited in support of the statement that contracts to indemnify are outside of the statute, such as Cripps v. Hartnoll, 4 Best & S. 414; Reader v. Kingham, 13 C. B. (N.S.) 344; Anderson v. Spence, 72 Ind. 315, 37 Am. Rep. 162; Keesling v. Frazier, 119 Ind. 185, 21 V. E. Rep. 552; Beaman's Admrs. v. Russell, 20 Vt. 205, 49 Am. Dec. 775. But these judgments rest on tbe same idea as Thompson v. Coleman, 4 N. J. Law, 216,—that there existed no otber liability to the promisee than that of the promisor, and so manifestly the statute was not applicable. On the otber band, there is sufficient judicial authority for the proposition that an undertaking to indempify a person for becoming surety for another is, in the absence of any modifying fact, a promise within the statute. Green v. Creswell, 10 Adol. & E. 453; Simpson v. Nance, 1 Speer, 4; Brown v. Adams, 1 Stew. 51, 18 Am. Dec. 36; Kelsey v. Hibbs. 13 Obio St. 310; Clement's Appeal, 52 Coon. 464; Bissig v. Britton, 59 Mo. 204, 21 Am. Rep. 379; Nugentv. Wolfe, 111 Pa. 471, 4 Atl. Rep. 15, 56 Am. Rep. 291; Draughan v. Bunting, 31 N. Car. 10; Hurt v. Ford (Mo.), 44 S. W. Rep. 228; and May v. Williams, 61 Miss. 126, 48 Am. Rep. 80,-- were decided on this basis. In the case last mentioned, Porier, J., stated the true rules very clearly and concisely. No doubt, there are opposing cases which cannot be explained on any distinguishing circumstances. Such seem to be Chapin v. Merritt, 4 Wend. 657; Jones v. Bacon (N. Y.) 40 N. E. Rep. 216; Dunn v. West, 5 B. Mon. 376; Vogel v. Melms, 31 Wis. 306, 11 Am. Rep. 608; and Wildes v. Dudlow, L.

R. 19 Eq. 198. But some of these cases merely follow Thomas v. Cook, ubi supra, witbout noticing the distinction which the latter decision has justified, while others appear to have been induced by the injustice of a refusal to enforce a promise on the strength of which the promisee incurred bis liability, rather than by a ready purpose to execute the will of the legislature.

No doubt, injustice may result from the enforcement of the statutory rule; but that rule sprang from a conviction that its adoption would prevent more wrong than it would permit, and its enactment in England and perhaps every state in this union indicates the generality of this assurance. Said Mr. Justice Sterrett in Nugent v. Wolfe, ubi supra: “The object of the statute is protection against frauduient practices commonly endeavored to be upheld by perjury,' and it should be enforced according to its true intent and meaning, notwitbstanding cases of great bardship may result tberefrom." With more detail did Chief Justice Shaw, in Velson v. Boynton, 3 Metc. (Mass.) 396, 37 Am. Dec. 148, say: “The object of the statute, manifestly, was to secure the highest and most satisfactory species of evidence in a case where a party, without apparent benefit to himself, enters into stipulations of suretysbip, and where there would be great temptation on the part of a creditor, in danger of losing his debt by the insolvency of his debtor, to support a suit against the friends or relatives of the debtor, -a father, son, or brother, -by means of false evidence, by exaggerating words of recommendation, encouragement to forbearance, and requests for iudulgence into positive contracts."

Our conclusion is that the promise proved at the trial was insufficient to sustain the action, that the judgment for the plaintiff should be reversed, and that, in accordance with the reser. vation at the trial, a verdict and judgment should be entered in favor of the defendant.

NOTE.-- The Promise to Indemnify Anothér for Becoming Surety of a Third Person as Within the Statute of Frauds.- No more difficult or unsettled question of law exists to day than tbat propounded in the subject of this annotation, and on no ques. tion are the authorities in more hopeless confusion, The preponderance of authority seems to be against tbe position of the court in the principal case-not, however, so great as before this decision, which in overruling the prior New Jersey cases, transfers that state from the majority to the minority side of the question. And, as yet, in many states, the question is still unsettled, the importance of a clear understanding of the principles involved capnot be overestimated.

A promise to answer for the debt, default or mig. carriage of another is one of the familiar provisions of statutes of frauds wherever enacted. The object of requiring all such agreements to be in writing is clearly to render impossible the attempt to prove the existence of contracts of this character by perjury or by exaggerating the representations or requests of the debtor's friends. Several principles must be borne in mind. In the first place, such

promise must be collateral to another and wholly independent of the promise of the original debtor to the promisee. The promise is to answer for the debt, default or miscarriage of another. In the second place the promisee must look originally to the debtor and not to the promisor for relief or pay. ment. The promise contemplated by the statute is one “to answer for the debt," etc. of another. If credit is extended only to the promisor on his special promise and not to the debtor, that is, if the plaintiff enters into bis engagement relying solely on the promise of the defendant, the case is not within the statute, neither is there ordinarily in such a case any obligation on the nominal debtor; it is more in the nature of an original agreement between the prom isor and the promisee for the benefit of a third person, then a guaranty although it assumes the latter form.

Whether a parol promise to indemnify one who becomes surety for another at the request of the promisor is within the reason and contemplation of ihe provisions of the statute of frauds just an. nounced is certainly not free from dificulty and has battled the logical faculties of many & court for a solution. In England the courts vacillated for some years. In Thomas v. Cook, 8 B. & C. 728, a promise to indemnify was held not to be within the statute. In Green v. Cresswell, 10 Ad. & E. 453, the contrary view was announced. These are tbe two leading cases on which the authorities on both sides of the question base their respective arguments. In Thomas y. Cook, the plaintiff, upon defendant's special promise to idemnify him, joined with him as surety on the bond of a third party to secure bis debt to a fourtb. The defendant's promise of indempity was held not to be within the statute. It will be observed that in this case that tbe only obli. gation of the third party to the plaintiff was tbat which could be implied by law from the latter's being compelled to pay the debt. In Green v. Cresswell, the plaintiff, on defendant's special promise to indemnify him, became bail fur a third party who was arrested for debt. The court held the promise to be within the statutes on the ground that it was merely collateral to the tbird party's implied obligation to indemnity bis surety. In Cripps v. Hartnoll, 4 B. & S. 414, the distinction was attempted to be drawn in those cases in which the promisee was surety upon a bond by which the principal was bound to answer a criminal charge, and those in wbirh the bond was given in a civil cause, the court saying that there was no implied con. tract on the part of a principal who was bound over to answer a criminal charge to indemnify his furety, and, therefore, that the promise of the promisee did not come to aid of that of another person. We assent to the language of the court in May v. Williams, 61 Miss. 125, 132, in criticising this distinction: “We do not assent to the proposition that a principal in a bail hond is not under an implied contract to indem. nify his surety. He knows that the law requires some one to be bound for bis appearance as a condi. tion to bis discharge from custody; he executes the instrument by which the surety is bound, and by the bond he becomes bound as principal to that snrety." In Wildes v. Dudlow, L. R. 19 Eq. 198, the case of Green v. Cresswell was overruled. In that case the promise was to indemnity the plaintiff if he would sign himself as joint maker with defendant's son on a note for the latter's accommodation. The court held this promise not to be within the statute for the reason that a promise to be witbin the statute must

be made to the promisee to pay a debt due by anotber to bim. Such is the bistory of the law on this subject in England.

In America any attempt to reconcile the authori ties would be fruitless. The following authorities follow the rule laid down in Thomas v. Cook: Tigbe v. Morrison, 116 N. Y. 263; Anderson v. Spence, 72 Ind. 315; Aldrich v. Ames, 75 Mass. 76; Potter y. Brown, 35 Mich. 274; Smith v. Sayward, 6 Me. 504; Smith v. Delaney, 64 Conn. 264; Demeritt v. Bick: ford, 58 N. H. 523; Minick v. Huff, 41 Neb. 516; Jones v. Letcher, 13 B. Mon. 363; Mills v. Brown, 11 Iowa, 314; Goetz v. Foos, 14 Minp. 265. The follow. ing authorities follow the rule laid down in Green v. Cresswell: Nugent v. Wolfe, 111 Pa. St. 471; Brand v. Whelan, 18 11). App. 186; Simpson v. Nance, 1 Speer (S. Car.), 4; May v. Williams, 61 Miss. 126; Bissig v. Britton, 69 Mo. 206; Kelsey v. Hibbs, 18 Obio St. 340; Draughan v. Bupung, 31 N. Car. 10. In the case of Tighe v. Morrison, 116 N. Y. 263, defendant and one D, having been appointed adminstrators on condition tbat tbey tile the usual bond with two sureties, agree between themselves that eacb should furnish a surety. Defendant applied to plaintiff to sign the bond, stating that he had an interest in the estate as it was indebted to bim, and upon bis oral guaranty to save plaintiff from all loss, plaintiff consented and executed the bond. On being compelled to pay for a default of D, as administrator, plaintiff brought suit upon the guaranty. Held, that the agreement was not within the statute for the reason that the promise was an original one, not severable in its nature, and legally beneficial to the defend. ant only. In Anderson v. Spence, 72 Ind. 315, A verbally agreed to indemnify B against all loss, it he would enter into a recogpizance for the appear. ance of C, who was under indictment for a felony. The court held that such an agreement is an original promise, and not within the statute of frauds, and tbat B migbt recover from A upon such verbal agreement wbatever loss be might have sustained by C's forfeiture of the recognizance. The court said: “There is, in principle, an obvious and important difference between a contract of guaranty and one of indemnity. The former is a collateral undertaking and presupposes some contract or transaction to which it is collateral. A contract of indemnity is essentially an original one. Between the promisor and promisee there is a direct privity. Between the person to whom the promise of indemnity is given, and the person for who the latter undertakes as surety or bail, there is no privity. The contract is an original and independent one, in wbich there is no debt or default toward the promisee to which there are no collateral contracts, and in which there is no remedy against the third party. A contract of tbis character bas long been beld not to be within the statute." In Smith v. Delaney, 60 Conn. 264, the de. fendant D requested plaintiff to become surety for M, promising to indemnify him, and also stating that be, D, intended to go into the liquor business with M. The court held the special promise of D to be not within tbe statute. In tbis case the court makes a peculiar effort to reconcile the previous seemingly contradictory decisions of the court-Reed v. Hol. comb, 81 Conn. 360, and Clement's Appeal, 52 Conn. 464. The court said: "In Reed y. Holcomb, where the plaintiff indorsed a note of a third party, in which defendant was interested, and on bis promise to see it paid, it was held that the statute of frauds did not apply. In Clement's Appeal, B indorsed notes for G at the request of bis father, and on the father'

oral promise to save him harmless. It was held that this promise was void under the statute of frauds, because not in writing. In Clement's App.al the promisor had no legal or pecuniary interest whatever in the transaction. In Reed v. Holcomb the transaction was for the benefit of the defendant. The two cases are therefore in harmony, for the rea. son that Reed v. Holcomb is not, as bas sometimes been supposed, an authority for the unqualified doc tripe of Thomas v. Cook, tbat a contract of surety. sbip is, but a contract of indemnity is not, within the statute; but only for the more limited doctrine recognized elsewhere, in most jurisdictions tbat Thomas v. Cook is not followed, and consistent with even Green v. Creswell, that where the inducement is a benetit to tbe promisor wbich he did not before or would not otherwise enjoy, and the act is done upon bis request and credit, such promise is an original undertaking and not within the statute.” Such was also the case of Smith v. Sayward, 5 Me. 504, where the principals of a certain agent requested plaintiff to go surety for the latter. It was held ihat the prin. cipal's promise was an original undertaking, and not within the statute, and tbat the benefit accruing to the principal was a sufficient consideration to sup port the promise. Such also was the case of Potter v. Brown, 35 Mich. 274. In Demerit v. Beckford, 58 N. H. 523, it was held that if A agrees with B that it B will become surety of C on a note to D, A will see the note paid and indemnify B, and B be. comes surety, relying solely upon the promise of A, the agreement is not within the statute. So also in Goetz v. Foos, 14 Minn. 266, the court saying: “Tbe debt in this case was owing by the plaintiff to Sauer. brey (a third person), and the promise to pay it was made not to Sauerbrey, but to the plaintiff. A prom. ise of this character is not witbin the provisions of the statute of frauds relating to promises to answer for the debt, default, or doings of another.' This provision applies only to promises made to persons to whom another is liable.” So also in Minick v. Hufi, 41 Neb. 516.

The leading case in tbis country, following tbe doctrine announced in Green v. Cresswell, is that of Nugent v. Wolfe, 111 Pa. St. 471, where it was squarely and unequivocally held that a parol promise to indemnity one, if he will go security for a third per son, is within the statute of frauds. The court said: “The reasoning by wbich a contract such as this is held to be witbin the statute is, that as soon as the surety signs the bond, the legal implication arises that if he is obliged to pay it, the principal will be bound to pay him. The principal being bound to re. imburse the surety, the engagement of the party who has promised to indemnity the surety is collateral to that obligation, and is simply an engagement that if the principal does not repay the surety be will do so. This, it is contended, is clearly a promise to pay the debt of another.” So also to same effect, Brand v. Whelan, 18 Ill. App. 186. In this case the court makes this exception to tbe rule: “An exception is generally recognized, however, when tbe indemnitor is himself primarily liable for the debt guaranteed, because, in that case, be only promises to pay his own debt.” So also in the case of May v. Williams, 61 Miss. 125, where the court held that an oral promise to indemnity a person for becoming surety on an. otber's bail bond is within tbe statute. In this case the court strongly argues as follows: "It cannot be said that tbe promise to indemnily the surety is made to bim as debtor and not as creditor. It is true that both the principal and surety are bound to the fourth

person, the State; but the contract of the promisor is not to discharge that obligation. He assumes no duty or debt to the State, nor does he agree with tbe promisee to pay to the State the debt wbich may become due to it it default shall be made by the prin. cipal in the bond. It is only when the promisee bas changed bis relationship of debtor to the state and assumed that of creditor to bis principal by paying to the state the penalty for wbich both he and his principal were bound, that a right arises to go against the guarantor on bis contract. It is to one wbo is under a conditional and contingent liability that the promise is made; but it is to him as creditor and not as debtor, that a rigbt of action arises on it. Nor do we think it sufficient to take the case from the operation of the statute that tbe liability of the prin: cipal arises by implication rather than by express contract. The statute makes no distinction between a debt due on ano implied and ope due by express contract. It is the existence of the debt against the principal, and not the manner in which it originater, tbat makes voidable a parol promise by anotber to become responsible for its payment.” So also in Bissig v. Britton, 59 Mo. 204.

This great cortlict of authority cannot be recon. ciled. The question itself is a most vexatious one, and susceptible to such tine distinctions and metaphysical reasoning as to practically preclude a settle ment by mere logic. Practical justice would certainly seem to favor tbe holding that a promise to indemnity one for going surety for a tbird person is not within the statute. And yet, on principle, it is bard to see why such a promise is not one "to answer for tbe debt, default or miscarriage of another.A liability arising by implication is as binding as one expressed in more definite terms, and the opportunity to foist the liability on the frier ds of the debtor by perjury or exaggeration, is just as available as in cases of more direct guaranty. The mere fact tbat it is made in the form of indemnity is i material. Every cortract of guaranty could assume that form if neces. sary. Taking the plain words of the statute and giving them tbeir plain meaning such agreements are clearly witbin its terms. The mere fact that such con. struction will often work injustice in particular cases sbould not be permitted to defeat the plain and beneficient purpose of the statute itself.

JETSAM AND FLOT8AM.

THE GRAND JURY. The origin of the grand jury, as we know it to-day, is very difficult to trace to its exact source. Like many otber institutions of modern civilization, it has been an evolution, and the germ of tt is claimed by some writers, to be found in certain customs which obtained amongst the Anglo Saxons, while others as stoutly maintain that it was brougbt in by the Nor. man. It bas been contended that trial by jury orig. inated in the time of King Alfred and owes its origin to him. Hallam in bis "Middle Ages," discusses the question and presents the evidence upon which some writers have come to the conclusion that trial by jury was derived from the Anglo Saxons and in summing up, he says: “In comparing the various passages wbich I have quoted, it is impossible not to be struck with the preference given to twelve, or some multiple of it, in tixing the number either of judges or compurgators. This was not peculiar to England. Spelman has produced several instances of it in the early German laws. And that number

seems to have been regarded with equal veneration in Scandinavia. It is very immaterial from what caprice or superstition this predilection arose. But its general prevalence shows that, in searching for the original trial by jury, we cannot rely for a mo. ment upon any analogy which the mere number affords. I am induced to make this observation, because some of the passages which bave been alleged by eminent men for the purpose of establish ing the existence of that institution, before the Conquest, seem to have little else to support them." "It is not surprising that the great services of Alfred to his people in peace and in war should have led posterity to asoribe every institution, of which the beginning was obscure to his contrivance, till bis fame has became almost as fabulous in legislation as that of Arthur in arms."

Whether we accept the opinion of those who claim, that the accusatory tribunale which existed in the reign of the Saxon King Ethelred III.,sufficiently resembled the grand jury, as we know it, or not, certain it is, that we come to sure ground in the matter in the reign of King Henry II.-1154.1189. In his reign the royal justices went their rounds, and the shires were required to present to them the local offenders witb tbe evidence of the crime. Twelve knights, or freeholders, made tbe present. ment on their own sworo evidence, and if they accused any person before the king's justices of murder, theft, or robbery, or of barboring men committing these offenses, or of forgery, or arson, then the accused was subjected to the trial by boiling water, and if he failed therein, he was to suffer tbe loss of one foot. These twelve men were the accusing jury, and practically performed similar functions to our grand jury, and as the trial by ordeal bad not yet been abandoned in the reign of Henry II., when the accusing jury put a person upon his trial, or in other words, found a true bill, the trial was by combat, by fire, or by boiling water, as the offense called for. Even in his reign, however, the trial by ordeal was falling into disfavor, and we find that in the third year of the reign of Henry III., the justices in eyre, for the northern counties were ordered not to try persons charged with crime by the judgment of fire or water.

In the reign of Edward I., the bailiffs of each bailiwick, in order to be ready for the periodical circuits of the justices in eyre, were required to choose four knights, who again were to choose twelve of the better men of the bailiwick, and it was the duty, of the latter, to present all those who were suspected of having committed crimes. Each of them took the following oatb: "Heartbis, ye justices! that I will speak the truth of that wbich ye shall ask me on the part of the king, and I will do faithfully to the best of my endeavor. So help me God and the holy apostles.” In consequence of the oats which they took they were called the jurata patrice, and for a long time seem to have united the two functions of a grand jury to accuse, and a petit jury to try the accused.

To prevent persons being put upon their trial owing to false and malicious accusations, or to gratify private revenge, it was enacted in the reign of Edward III. tbat “no man be put to answer without presentment before justices or matter of record or by due process and writ original according to the old law of the land. It was in this reign that the separa. tion of grand and petit jury became an established factor in England criminal jurisprudence, it having been provided by 25 Edward III., ch. 3, tbat "No

indictor shall be put in inquests upon deliverance of the indictees of felonies or trespass if he be cbal. lenged for such cause by him who is indicted.” In other words, no grand juror could also act as trial juror, in the same case, if objected by the aceused. When the enactments referred to with reference to the grand jury bad reached this stage, it was only a question of time to dispense with the service of the four knights who were commissioned to cboose the jury, and by a precept of the court directly to authorize the sheriff of each county to return the name of twenty four or more persons, from whom the grand jury is chosen, which number gradually settled to twenty-three, a majority of whom must consent in order to frame a valid indictment. Whence it became the custom that however many attend, or actually officiate, twelve at least must concur in pre. senting an offender.

It seems clear, then, that the origin of the grand jury can be traced back to the reign of Henry II. It was in his reigo that the race distinctions so long preserved in England disappeared. In bis reign the English language became the language of the people, although Norman French was still spoken by the ruling class. Is it not reasonable to suppose, then, tbat if the language of the Saxons survived as the language of the united people that some of their customs may have also survived, and that the accusa. tory tribunal, or grand jury, gradually grew out of forms previously in use, and was composed of ele. ments long familiar to the people of this country.

It may be interesting to potice that in France tbere is no grand jury, or jury of accusation. It did exist there from 1791 until 1808, when it was abolished by Napoleon. The place of the grand jury is supplied by two government officials, the procureur du roi, and the juge d'instruction. It is the duty of all magistrates to inform the procureur of any crime which may be committed witbin their districts of which they have information. In cases of heinous crimes it is the duty of the procureur to repair to the spot and collect tbe evidence. He may examine witnesses, and reduce their depositions to writing. He may order the arrest of the accused and interro. vate bim as to bis guilt. The evidence tbus obtained is all written down and forms, wben duly signed, the process verbal, wbich is then transmitted, with all the papers and documents in the case, to the juge d'instruction. The juge d'instruction from time to time reports his proceedings to a chambre du conseil composed of three magistrates, and if they are of opinion, wben the whole case is before them, that the accused ought not to be prsecuted,'bey order bim to be discharged; if they think he ought to be put upon his trial before a jury, the whole of the proceedings are transmitted to a higher court, koown as the cour royal, who finally determine wbether the accused ought or ought not to be put upon bis trial before a jury. Some of tbe ablest of the French jurists deplore the absence in their country of a tribunal corre. sponding to our grand jury, and point out that tbe chief advantage to be derived from it would be the abolition of secret investigations, which are the disgrace of criminal trials in France.

To trace out carefully through the records of our criminal courts, from the earliest times, the benefi. cent influence exercised by the grand jury would be an interesting and useful undertaking. The iconoclast is abroad in the land, and forgetting in times of peace the lessons of history is ready to lay the axe to the root of every tree, but let us hope that this ancient and venerable oak, whose friendly branches have

afforded shelter and safety to many a storm-beaten traveler in the dark days that bave gone by, may be spared. The millendium has not yet arrived, and we cannot spare a single institution which in the past in any measure safeguarded the liberties of the people. -Neil Mc Crimmon, in Canadian Lar Review.

Bias of a Witness," p. 25; “Liability of Notaries," p. 381; "What Covenavts Run With Land,” p. 664; "Judicial Notice of Localities and Boundaries," p. 439. Bound in one volume of 1,059 pages and pub. lished by the Bancroft Whitney Company, San Francisco, Cal.

BOOKS RECEIVED. A Treatise on the Law of Attachments, Garnish

ments, Judgments and Executions. To which is appended a Collection of Leading and Illustrative Cases with Notes. For Lawyers and Students. By John R. Hood, an Instructor in Law at the Uni. versity of Michigan, Author of "Rood on Garnish. ment," "Common Remedial Processes," etc. Geo. Wahr, Publisher and Bookseller, Ann Arbor, Mich. Buckram, p. 546, price, $3.00.

HUMORS OF THE LAW.

а

BOOK REVIEWS, ROOD ON ATTACHMENTS, GARNISHMENTS, JUDG.

MENTS AND EXECUTIONS. The impression tbat strikes the reader on his first introduction to Mr. Rood's new work on Attach ments, Garnishments, Judgments and Executions, finds expression in the familiar proverb that “a jack of all trades is usually master of none." A closer acquaintance, however, will reveal one particular ex: cellence, which is too much underestimated by the lawyer of to-day,-a thorough discussion of the principles of the law applicable to the particular ques. tions treated. In tbis connection the words of the editor are interesting: “While this text states only the most elementary rules, it is believed that the man who has thoroughly mastered them can mcre than cope with one who is burdened with a weight of ball-digested matter." There is a world of truth in this statement for the lawyer who desires the practice of his profession to be a pleasure ratber than a drudgery, and to enjoy the confidence of the bar and the public. It would seem that in the group of subjects selected for tbis treatise would be found little that could be founded on principle and much less that could be interestingly discussed. An agreeable disappointment in this regard awaits the reader of these carefully written pages. Printed in one volume of 549 pages and bound in buckram. Published by George Wabr, Ann Arbor, Mich.

AMERICAN STATE REPORTS, VOL. 82. The advent of every successive volume of the American State Reports constantly reminds us of the fact that the courts are still grinding out the law,"lest we forget-lest we forget." It is, indeed, necessary, for where is the lawyer anywhere that would not like to "forget it.” The pile of it is as. saming bewildering and ridiculous proportions. In fact, one half of the reported cases are nothing but cumulative reiterations of legal truisms and, in some instances, evidence a most criminal lack of legal per: ception on the part of counsel who encourage the expense of such "will of the wisp" and unfounded litigation. Only three reasons suggest themselves,either lawyers are too sanguine and unduly ex bilerated with the chance of success, or else they do not know the law or the principles applicable to the facts of the case, or, a most unlikely alternative we trust, are too easily enamored of the opportunity to earn a fee. We believe tbe second suggestion covers the great majority of these cascs. The young at. torney is too eager for the fray to perfect a thorough knowledge of tbe principles of the law, and, in alter years, finds neither the time nor inclination to regain the lost ground. Probably the best substitute and supplement to a proper acquaintance with the principles of the laws is to be found in a close study of current annotations now so abundant and accessille, such as appear regularly in the columns of the CENTRAL LAW JOURNAL, or in the frequent issues of the different appotated reports, such as the volume before us at this time,-the 82 American State Reports. Among the interesting annotations in this volume, which will repay careful study, we note the following: “Evi. dence Admissible as Bearing on the Credibility or

Edward L. Perkins, an able and brilliant member of the Pbiladelphia bar, launched the following story some years ago:

He was a new judge on the circuit, and when the counsel for the plaintiff called the counsel for the de. fendant a liar almost at the opening of the case, bis bonor promptly exclaimed:

"Gentlemen! Gentlemen! There must be no fuss. ing in this court!"

The lawyers cooled off, but ten minutes later the counsel for the defendant took an exception and added:

"And I now brand the so called attorney who stands there as a robber and villain!"

"Order! Order!" shouted bis honor, as he turned pale at the prospects of a tragedy. "If the gentle. men do not moderate their language I shall bave to impose a fine."

The gentlemen moderated, but the counsel for the plaintiff had been burt in bis feelings and wanted to get even. The opportunity came, and, standing erect, with eyes flashing, he shouted:

"That man tbere-tbat being wbich calls itself a man-is not stating the truth and he knows it way down in his black heart!"

"This language must stop!” declared the judge, as he made ready to dodge bullets. “I have warned tbe gentlemen several times, and on the next occa. sion I shall impose a heavy tine."

The “gentlemen” subsided, and the case continued for ten or fifteen minutes. Then counsel for the plaintiff got hot and sprang to his feet and exclaimed:

"No one but a cur would say that, and I bave a bullet here for a cur!"

“And it is my day for shooting skunks!" howled the counsel for the defendant, as be also placed his band on bis pistol pocket.

"Gentlemen-gentlemen!"
"I defy bim!"
“And I defy you!"

“Gentlemen," said the judge, as be slipped out of bis chair to get the shelter of his desk, "I said I would impose a tine, but I've changed my mind. Go ahead and boot to kill!"

Each lawser simply let bis hand fall, smiled at his opponent, then sat down in his cbair, and the drinks were on the judge.-Philadelphia Item.

WEEKLY DIGEST. ALABAMA, 2, 11, 23, 27, 29, 32, 46, 47, 54, 56, 57, 58, 65, 68, 69,

82, 116, 133, 135, 149, 159, 169, 177, 183, 185 ARKANSA8...

103, 126

« ПретходнаНастави »