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tallization of the same idea. It is one of the neces- of preserving inviolate, the peace of society and the sary restraints upon natural rights.

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Authorities are not entirely lacking to show that this underlying principle has been recognized in cases of unilateral mistake. One of the ablest of the text-writers (Poll. on Cont., p. 400), has said, consent is essential to the creation of a contract, and if it is wanting, it matters not whether its absence is due to the error of one party only or both;" and yet, upon the same page, he says of mutual mistake itself, "it seems hardly too artificial to say that there is no real agreement." The courts have in several notable decisions shown a disposition to make unilateral mistake a ground for relief whenever it could be done with certainty of not doing injustice. Paget v. Marshall (28 Ch. Div. 255) is one of the most striking examples of the working out of this principle. This was a case where the plaintiff offered the whole of the building at a certain rental, intending to reserve a part, but failed to do so. The defendant accepted the offer as made. Here the court decreed recission of the contract for unilateral mistake, giving the defendant the option of submitting to reformation. The defendant submitted, and the court preserved inviolate the ancient rule of never reforming a contract save for mutual mistake. In its decision the court said: "A common (i. e., mutual) mistake, the court has power to rectify. The other class of cases is one of what is called unilateral mistake, and there, if the court is satisfied that the intention of one of the parties was to do one thing, and he, by mistake, signed an agreement to do another, that agreement will not be enforced against him, but will be treated as if it had never been entered into."

security of property rights. It is but one of the many instances where abstract principles must be subordinated to concrete needs. That, here, as in the case of executed contracts, the basic principles cannot be fully worked out, is because of those restrictions, which in the interests of the state, place upon the fullest development of the "natural law" in every system of jurisprudence. It is not the less necessary on this account that they should be understood.

ST. LOUIS, Mo., March 1, 1902.

HOW THE BANKRUPTCY LAW WORKS.

PARTICULARLY OF ITS PRACTICAL OPERATION IN
THE UNITED STATES DISTRICT COURT, OFFICE
OF THE CLERK FOR THE SOUTHERN DISTRICT
OF NEW YORK.

In this office all papers are filed relative to proceedings in bankruptcy, and the present clerical method of conducting such business calls for a searching and thorough investigation. Ordinarily, the newspapers, generally foremost in the criticism of official misdoings inaugurate this investigation without much prompting, but they are not always proof to the influence of utilitarianism; and where the patronage from this branch of legal machinery amounts to thousands of dollars in the course of a year self interest is paramount to the mere voice of conscience or public interest. Their clamorings are loud enough, sometimes unbidden, but a bone tossed to them will cause them to lie quiet as any lamb. It cannot fail to suggest an analogy to the diffidence of the singers mentioned by Horace, who were ever and only ready to utter melody when the same was not in demand.

Omnibus hoc vitium est, cantoribus inter amicos
Ut nunquam inducant, animum cantare rogati,
Injussi nunquam desistant.

But to the purpose and the facts:

This rule that equity courts will refuse a decree of specific performance when convinced that the contract was entered into by one of the parties through mistake, is as well established in this country as in England. Thus, in a leading decision in Maine (Mansfield v. Sherman, 81 Me. 365, 370), it was said: "The court when appealed to in an action at law, can only consider whether there was a valid contract and a breach. The mere mistake of one The bankruptcy law was primarily enacted in the party, however great, will not excuse him from interest of the entire country. The compensation making full compensation. When, however, appli- of clerks, referees and trustees is a matter merely cation is made to the court not to determine and incidental to the proper enforcement and operation enforce legal rights, but "to do equity" between of the same. In the case of a genuine bankrupt, the parties, the court will be careful to do only and the pauper, impoverished through financial misequity, and will not aid one party to take advantage fortunes, the law contemplates the absolute immuof the mistake of the other party." It is thus that nity of the bankrupt from the payment of fees. equity courts, recognizing the effect which an uni- Section 51 of the law expressly exempts the banklateral mistake exercises upon a contract, strive to rupt who begins his proceedings by an affidavit of do justice by refusing to enforce an agreement inability to pay the fees of the referee, clerk, etc., which by its very nature is void. That this is the in other words, who sues "in forma pauperis," as only in which such a mistake is recognized as a the phrase runs. Now, how does the case of a real ground of relief, is due, to the imperative necessity petitioner who begins his case "in forma pau

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peris" work? Simply thus: From the testimony of a good many lawyers who have learned by sad experience, and who can vouch for the truth of these facts, as soon as the unlucky petitioner files his affidavit of inability to pay court fees, his doom is sealed. All sorts of objections, real, fanciful — mostly the latter, and unsound are discovered by the clerk. "He has made a plot on his papers, somewhere, etc." He has no legal right to do what? Why come in without his pockets ready for demands from the clerk, and this in the face of the express words of the law - certainly a constitutional law and one adapted to secure honesty and straight-forward dealing on the part of bankrupts. The clerks by their methods of browbeating, and insulting both lawyers and bankrupts are directly encouraging fraud and concealment of facts. The bankrupts who pay go through, the poor devils who in their poverty and probity cry out for redress, as the law intended, are tortured and annoyed beyond the peradventure of belief. Most of them abandon the attempt, in abject humiliation, because insult has been added to misfortune. I do not mean to imply that the bankrupt who has fortunately relatives or friends to provide the fees to win back business credit is necessarily dishonest, but I do say that the meritorious bankrupt who honestly comes forward, and courts investigation under the law, standing like a true man upon his rights as a citizen, is entitled to something else beside contumely and coals of fire from disappointed clerks and appointees. In most cases, the clerk refuses to receive his papers -an act amounting under certain conditions to positive malfeasance in office. The manner in which they receive the attorney for such a petitioner is a crying disgrace, and a perpetual stigma upon the honorable profession of a member of the bar- -a title which in any other country in the world is a guarantee of respect and fair treatment. I stand ready to produce attorneys who will testify to the truth of these statements. The gross quantity of autocracy that appointees and clerks exercise in the handling of these cases would make a judge blush. The same was true in the county clerk's office, and only now is a remedy forthcoming. There are few bankrupts that could afford to stand out in a legal contest with these appointees, and the latter knowing this probably think so meanly of the legal profession as to take it for granted no attorney will fight for the mere honor and duty of exposing these practices; but the times are productive of marvelous develop ments in this twentieth century, and I for one am prepared to follow where any dare lead in the battle of justice for the poor man, and assuredly there are others prepared to stand up for the oath of loyalty to the institutions and constitution of the

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country - the preliminary "jusjurandum" of admission to the bar.

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The average court subordinate may laugh at the burning words of Cicero, the champion of the oppressed, nos ad justitiam esse natos, neque opinione, sed natura constitutum esse jus," but he may well pause upon the threshold of the twentieth century and turn back. The adage, “it is better to know the judge than the law," is being metamorphosed by bitter experience. It is better to know the clerk than the judge. The worm may turn at last. Carlyle says: "The brutallest black African cannot bear that he should be used unjustly. No man can bear it or ought to bear it. A deeper law than any parchment law whatsoever, a law written direct by the hand of God in the inmost being of man, incessantly protests against it.” Sincerely yours,

ALEXANDER LEE HIRSCHBERG. Mt. Vernon, N. Y., April 8, 1902.

JUSTICE IN THE PHILIPPINES.

most

"Law is uncertain, and politics utterly vain," was the remark of America's greatest statesman, when in old age, wearied and worn with the contests and vexations of the hustings and the courts. The latter sentiment will undoubtedly be found to abundantly apply to the Filipinos, after a few months more of civil government. With the prevailing judicial conditions in this country, however, it is proposed to treat on the present occasion.

The course of justice in the Philippines is decidedly uncertain. At the present time, as well as in the immemorial past, the greatest of crimes is to be ignorant and poor. "Forsake all hope, ye who enter here," might have been written over the door of the prison that closes on the disappearing figure of the poor man.

“The law's delays," as well as the law's injustice, have been, and to a certain extent, are still, a marked feature of the administration of the Filipino law, which has continued from the days of the earliest Spanish governor general down to the days of Governor Taft. The injustice of the law is in its aristocratic tendency. Its disregard of the rights of the great mass of the population. Reference here is made to the administration of the laws, not to the laws as written, in fact the Code of Spain, as provided for the colonies, carefully protects the rights of all classes of men. It provides that the trial judge may take into consideration the fact of the defendant being ignorant, an Indian or a Chinaman, as matter of extenuation before pronouncing sentence. The law in its essential features is humane, and if administered in the spirit of its

composition would prove a blessing to the people | the support of himself and the younger children. of the colonies.

In the Philippines, as elsewhere in the world, it is bad to be a murderer or a thief, or barn burner, but the fatal crime is to be a poor man, a common Tow as called in the Visayan provinces, or an hombre, to use the Spanish expression for the common native, all over the islands.

Such has been the status of men in these islands during the past, and to a considerable degree, such is the status of men to-day.

Recently in the American Court of First Instance in the Island of Negros, was completed the trial of a number of cases, involving many defendants, some men of position, with influence; some, and the greater number, belonging to the common class of tows. The cases all arose from the same transaction, the theft of several thousand Mexican dollars from the Chino owners. The crime was committed on the 15th of August, 190). A few of the defendants have been in the public prison of the province for sixteen or seventeen months; most of them, however, had been released on bail, among whom were included, of course, the men of influence, and who were, as charged, by all means the greatest offenders.

The chief of the Ladrone band. who committed the theft, has been killed by American soldiers. The presidente of Pueblo, where it was committed, has never been in prison; he was at once released on bail. The councellor of Pueblo, one of the defendants, is on bail. They were men of official position and influence. The presidente was accused of giving information to the chief of the Ladrones, as to the location of the silver, and inciting the theft. The councellor was accused of following up the thieves and participating in the plunder to the extent of 750 of the dollars. The testimony against both of the said officials taken in the previous examinations was very strong; both, however, were liberated on bail, and during the seventeen months since the commission of the crime have been at liberty.

One of the accused, however, had neither money or official position. Shortly after the perpetration of the crime he was arrested and remained in prison for the period of seventeen months. Last March he was permitted to work in one of the military departments, instead of working on the roads under a sentinel, and continued so working to the day of his trial, yesterday. During the seventeen months he has been a prisoner, receiving no compensation for his labor.

His wife died three months after his arrest, as he stated, from grief. His little family of four are living in the town from whence he came, supported by the eldest, a boy of twelve, who peddles fish for

His

On being asked by the judge if he received any pay for his labor, the defendant took from his pocket two rings made from the horn of the caribou, saying that after hours he made such rings, and from the sale of them, provided himself with clothes. liberation speedily followed the trial, there being no evidence connecting him with the offense. As a rule the native Visayan comes before the court with a face like a graven image, and departs with the same bronze visage, whether acquitted or condemned. A weeping Filipino is a rarity before the court. The party alluded to, however, was an exception; his voice broke, and he wiped away the tears as he answered the questions of the judge as to his family and future prospects.

On a previous occasion, of similar nature, equal sensibility was manifested by a native prisoner who had been in unjust confinement for many months. When his long, lingering imprisonment was terminated by his being brought before an American judge, who promptly inquired into the cause of his incarceration and summarily liberated him, the poor fellow shed tears as he realized that he actually was at liberty to join his wife and children.

The existing law is in a transition state, partaking both of the old Spanish and new American systems. A new civil code has been introduced which partially supersedes the former code and partially supplements it, leaving, as is unavoidable in such case, many points in doubt liable to give rise to much future litigation.

The Criminal Code has been unchanged by the commission, excepting as to procedure before justices of the peace. In the days of General Otis, however, a general order was issued modifying the existing criminal law to a certain extent, with the intent of introducing the great principles of the common law guaranteeing safety of liberty and person, providing that the accused shall be confronted by the witnesses against him, which order, while apparently making alterations easily understood, introduces principles so alien to the pre-existing laws as to confuse the native practitioner as to their application, and in instances leave the American judge or lawyer in doubt as to the procedure to be followed.

The confusion is worse confounded by the composition of the courts. The prosecuting attorneys of the highest trial courts are all native lawyers. These provincial fiscals, as they are called, are ignorant of our laws of evidence, of pleading, and especially of the inherent spirit of the laws of the United States. The judges of the Supreme Court are partly native, partly American. The chief justice being a Filipino. Several of the judges of the Courts of First Instance, as the highest trial courts

as his

are called, are Filipinos. All justices of the peace | plaintiff, and to make assurance doubly sure, the law are natives. Such is the constitution of the courts further provided that from the decision of his before which practice both American and native brother professionals there should be no appeal. lawyers. On the Supreme Court, where time is However unjust the demand originally, the referees taken for reflection, and where is considered the might augment it and there was no relief for the construction and interpretation of Spanish as well client who had the hardihood to dispute his lawyer's as American laws, native as well as American law- fee. yers may prove competent judges. On the bench of the trial court, however, conditions are very different, and it is patent to every one that it must be very difficult, if not impossible, for a judge trained under the Spanish system of judicature, to sit and decide points of evidence as they arise in the progress of the trial of a case, without time for deliberation. In the courts of the States a very large proportion of the cases reversed in the Supreme Courts are sent back for a new trial on erroneous rulings on the part of the trial judge as to the admission of evidence. If this be so in courts presided over by men whose life has been passed in the practice of a system of law of which the rules of evidence constitute a most essential principle, how much greater would be the number of reversal of cases tried by judges trained in a system of law to which our law of evidence is unknown?

Under the American Criminal Code, with a native judge on the bench and a native lawyer as prosecuting attorney, it will be well nigh impossible to avoid a complete failure of justice when the defense is conducted by a competent American attorney. The same remark applies to even where the presiding judge is an American, unless the court turns public prosecutor. The native lawyer, trained in the past system of Filipino-Spanish law fails to comprehend the essential spirit of our laws; whether the present generation of practicing lawyers will ever comprehend it is a matter of extreme doubt. The political system of the past, as well as the written law, is antagonistic to the essential spirit of the laws of the United States. So unlike, that our laws cannot be administered in the spirit of our institutions by judges and fiscals brought up under the political and legal institutions of Spain, as preexisting in the Philippines.

Such a system bears its natural fruit. The lawyers look upon the non-professional man natural prey. Some time since a disputed lawyer's fee was submitted to two lawyers as provided by law. The American judge selected as arbiters the fiscal of the province and the single American lawyer practicing at the bar. The native was in favor of allowing the total sum, the American considered it exorbitant, and so reported, recommending an amount materially less. A prominent member of the local bar made the remark, during the discussion of the question, that there was an understanding among the lawyers to the effect that the amount claimed should never be diminished when a disputed attorney's fee was submitted, but that the lawyer arbiters would either allow the full sum or increase it.

In this country, among the common people, human life is held in slight esteem. In a case which came recently under my observation, one man killed another by stabbing him with a wooden spear in the breast. The cause of the murder was a dispute over a gambling wager of ten cents, Mexican, or half a dime of our money. The clerk of the court tells me that a man has been killed here for two duckles, or about one cent American in value. In the great majority of cases coming before the court, life is taken in a quarrel, generally in a reckless manner. while the perpetrator of the offense is in a rage, or his head is bad. Occasionally, however, the act is one of extreme wantonness, showing an utter disregard of human life as well as diabolical wickedness. A case of the latter character is now pending sentence in the Court of First Instance for the Western Province of this Island, in which the evidence shows that the defendant killed a child of tender years for the purpose of wreaking revenge on the boy's father, whom he claims refused to deliver his A brief reference to the provisions of the previous axe, or pay for the same the sum of one peso and Filipino law illustrates this point. The law was a half.

made for the classes and not the people, es- A case of somewhat similar nature, decided in pecially was the law made for the lawyers, who the court of oriental Negros yesterday, manifests were not subject to the ordinary operations of the courts in collecting their fees. In case a client objected to paying the fee demanded by his attorney, the matter in dispute was referred to two of the practicing lawyers of the local bar. No matter how exorbitant the sum demanded, there was no recourse for the client but to submit to the decision of a board composed of two fellow-attorneys of the

the Malay spirit of revenge in a manner worthy of the old-time pirates who cut the throats of our grandfathers when navigating the Sulu seas a century ago. In the instance alluded to, the accused had served a term in the public prison, or while serving sentence for killing a man, had been released at the prison delivery following the uprising against the Spanish government. After his release

come. The party is an Igorote, an infidel, as termed here, or unbaptized person, or half-civilized man of the mountains. Whether his imprisonment will be for life, or whether he will live to be set free is as yet uncertain.

W. F. NORRIS,

Judge Special Court First Instance for Island of Negros, P. I.

BACOLOD, P. I., March, 1902.

he asked a man named Pedro for his bolo, whom it would appear had had possession of it before, or during the imprisonment of the accused. Pedro replied that the bolo was in possession of the authorities, which answer enraged the defendant, but who refrained from assaulting Pedro at the time, as there were too many people present. He bided his time, however, and about a week later proceeded to Pedro's house, taking his spear with him. The houses of the common people are raised some six or eight feet above the ground, the floor is composed of strips of bamboo, so that one can walk THE WIT AND HUMOR OF LORD NORBURY. under the house and look up into the living room of the family. It was dusk when the defendant arrived; walking under the house, he saw the family at supper, gathered around the common dish, seated on the floor or sitting on their haunches after the manner of the natives. Inserting his spear under the one he supposed to be Pedro, the defendant gave a thrust into the body of his victim and fled. The man wounded was the father of Pedro, who died within two hours. The above statement is substantially as given by the murderer, who said that he intended to kill, and not to wound, when he gave the thrust of the spear into the body of the man whom he supposed had refused to return his bolo. The above statement is related substantially as confessed by the defendant, who apparently failed to realize the enormity of his crime as judged by American standards. In fact, he sent to the judge a request that he might be released, as had been numerous minor offenders against whom there was no adequate cause of detention in the prison.

In November, 1898, at the date of the revolt against Spain, the prisoners were freed. Previous to that time Spanish judges presided over the Courts of First Instance. For several months after Filipino judges, appointed under the authority of the United States, were supposed to administer justice, till the appointment of the present judges under the prevailing system inaugurated by the Filipino commission. During the Spanish sway the administration was said to be corrupt. During the interval between Spanish and the present judiciary the administration of justice was decidedly erratic. I am informed by a present court official that the judge left the matter of imposing sentences in criminal cases to the clerks or minor court officials. That the minor cases would be left unattended to and sentences imposed without notification being given to the defendant. One particular defendant liberated to-day was sentenced last March to four months' confinement in the provincial prison. His sentence expired seven months since, during which time he has been suffering unjust imprisonment. When sent for to appear before the court it was ascertained that he was so sick as to be unable to

The superiority of Irish wit is universally admitted. Men renowned for wit have credit given them for many funny sayings which they never uttered. John Toler, Lord Norbury, was brimming over with sparkling wit and pleasing humor. Many a man has been immortalized as a wit on half the capital he possessed. His wit was of the refined and cultured kind, and never at any time coarse or vulgar. It was ready wit, capable of quick understanding, and unaccompanied by long introductions or explanations. No judge or lawyer in the history of English jurisprudence ever surpassed him in repartee. His levity never forsook him, and with the black cap on his head he joked as freely as though he were the chief wit at a banquet. His jests and puns were known and appreciated by the shop keepers of Dublin. His powers of invective were startling, and his sarcasm frequently led to challenges and participation in duels. He often remarked that he would not seek shelter behind the bench, or merge the gentleman in the chief justice.

Some of the newspapers kept the heading, "Lord Norbury's Last" in type, and under its shade issued pleasantries he never dreamed of. When told one day that other judges were stealing his puns, Lord Norbury remarked rather dryly, "They are welcome to my weeds."

His relish for a capital conviction was undisguised; a reliable document before us mentions the almost incredible fact that at a single assize he passed sentence of death on 198 individuals, of whom 197 passed through the hands of Galvin, the hangman.

It was this bloody assize that the patriot Robert Emmet referred to in his dying speech when he said: "By you, too, although if it were possible to collect all the innocent blood that you have shed in your unhallowed ministry in one great reservoir, your lordship might swim in it."

But I fear I'm digressing. A few illustrations of his wit are herewith presented for the entertainment of the reader. A wretched culprit brought before him for sentence after a capital conviction,

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