citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society, and can take no active resolution whatever. It may be truly said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficiency of its judgments. * Though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the Legislature and the executive. For I agree that "there is no liberty, if the power of judging be not separated from the legislative and executive

*

powers.

"With this view of the judiciary, and for the purpose of stimulating the spirit of independence, the State of New York has tried many experiments; it has increased the length of terms, has made constitutional provisions to prevent legislative interference with the compensation of judges, and has sought all means to preserve to the people the power of selecting and controlling, without a too immediate responsibility to the electorate, but all of these expedients must prove futile unless we continue to have a sustaining public sentiment; unless we continue to rear an edifice to justice in the hearts of the people, and to develop men who have the courage of their convictions and a conscientious desire to discharge all public trusts in a spirit of fidelity and honor. Constitutions, statutes, judicial opinions are worthless unless we have men back of them, men who are ready and willing to make sacrifices, if need be, to the cause of justice and right as formulated and promulgated in the law. The judiciary is helpless; it is, to quote the language of Judge Story, only set in motion when applied to, but, when thus brought into action, must proceed with competent power, if required to correct the error or subdue the oppression of the other branches of the government.' But to exercise this power it must be supported by a sound public sentiment, not in reference to the particular question, but in relation to the judiciary in general, and this can be maintained only by the integrity of the men who are chosen to preside in our courts, and the healthful education which you, gentlemen of the bar, are peculiarly in a position to disseminate throughout the community. The judiciary must come from the bar, and your conduct as well as that of the court, is helping to form the popular estimate upon which must depend the continued confidence in the judiciary, and that moral support, without which there can be little requirement nor much use for judicial independence."

SERVING THE WRIT.

She was a widow, graceful, young,
And oh, so very neat,
With swan-like neck and rosy lips,
And dainty little feet.

An attachment issued from the court -
She'd failed to pay her rent

And to her lodgings, with the writ,
The constable was sent.

The constable-like all his ilk -
Was a man of tender heart;
Who strove as gently as he could
His business to impart.

He bowed and stammered: “Madam, dear,
An attachment I've for you;

It grieves me sore to tell you so,

You do not understand;

You must proceed to court forthwith, For such is the command."

"But, my dear sir, I much prefer

That you would take the lead, For women are so very shy,

Oh, yes, they are, indeed.

I will be frank; I'll not refuse
If you the courting do,
But, pray, do not exact from me
The part which falls to you."

Amazement sat upon his brow,

He gasped to catch his breath; And never will he paler grow,

E'en in the hour of death. "Dear madam, you mistake my words, This paper will explain.

You must, forthwith, accompany me
To Squire David Blaine."

She threw her arms about his neck,
And seemed almost to faint,
And on the collar of his coat

Left copious streaks of paint;
And clinging there, like ivy vine
About the sturdy oak,
'Twas full a moment ere again

Her voice the silence broke.

"How could you be so very lold
As to engage the Squire,
And even get the license, too,

Without knowing my desire."
With giant strength, he tore away
And ran like a gazelle,

And swore he'd never serve that writ,
No matter what befell.

-Beecher W. Waltermeier, in Ohio Weekly Bulletin.

through that period of the dominance of railway wreckers. The Western States regained their charter of freedom from the new tyranny in the socalled "granger" decisions and analogous victories; and the full right of public regulation, extending to the fixing of passenger and freight rates, as well as the control of methods of railway operation, has long ago been settled beyond dispute. Under the State railroad commissions and the Interstate Commerce Commission, a large measure of publicity has been secured as respects railway finance and the carrying on of the railway business, and the methods through which the public interest can assert itself and protect itself have come to be tolerably well worked out. Moreover, there is a growing and effective pressure exerted by the investing public, without whose aid great feats of financial organization cannot be accomplished, in its demand for frankness as to the facts of corporate administration.-From "The Progress of the World," in the American Monthly Review of Reviews for April.

HOW THE CASE WAS LOST.

Oh, he was a deep young witness man
All in this case of ours,

And what an able liar can

He did with all his powers.

That black was white, that wrong was right
He swore with might and main;
He saw what happened out of sight,
And told it o'er again.

-Robert Truslow.

Notes of Cases.

Attorney and Client Settlement for Services Undue Influence. In the case of Kidd v. Williams, decided by the Supreme Court of Alabama in December, 1901 (10 So., 458), it was held that a settlement made between an attorney and client for services of the former is not invalid because the client did not have independent competent advice, he being a capable and wealthy business man of unimpaired mind, and the settlement being after the performance of the services, and on terms suggested by him, with full understanding of the matters. In this decision some stress was laid upon the fact, as such fact actually existed, that the settlement was "in respect to services of the attorney already performed, and not as to business then being prosecuted or attended to by the attorney for his client." The court, however, used the following language:

"The rule, even when the relation exists, is well expressed sustained, apparently, by numerous

cases in 3 Am. & Eng. Enc. Law, 2d ed., 334, as follows: An attorney is under no actual incapacity, however, to deal with or purchase from his client; all that can be required is that there shall be no abuse of the confidence reposed in him, no imposition or undue influence practiced, nor any unconscionable advantage taken by him of the client. As has been stated, in a transaction of this character the burden is upon the attorney to show its perfect fairness; but if the court is satisfied that the party sustaining the relation of client performed the act or entered into the transaction voluntarily, deliberately and advisedly, knowing its nature and effect, and that no concealment or undue means were used to secure his consent to what was done, the transaction will be upheld.' If the client is competent and capable, and with full knowledge of the transaction he proposes to settle with his attorney, acts deliberately and voluntarily settles his account for services with his attorney, there would seem to be no indispensable necessity for independent advice on the subject. This would certainly be true, when shown that there had been no fraud, deceit or unconscionable advantage practiced by the attorney on the client, which would rebut the presumption of a violation of the confidence reposed, as much so as independent advice would do. All that is necessary is for the client to be placed in such a position as would enable him to form an entirely free and unfettered judgment, independent altogether of any sort of control.' If this does not appear, it would be necessary to show that the client had independent advice, in order to remove the presumption of unfairness. But when this presumption is otherwise removed, a rule that would, in addition, require independent advice, would seem to be arbitrary and unnecessary. It is only when confidence is abused that courts of conscience interfere,' and this essential fact in such cases may be shown by any competent evidence. Independent advice is simply a means of proof to establish the fairness of the settlement, and that it was voluntarily entered into, free from undue influence. This is made clear under the decisions of this court (Moses v. Noble, 86 Ala. 408, 5 South. 181; Noble's Adm'r v. Moses, 81 Ala. 530, 1 South. 217, 60 Am. Rep. 175)."

In contrast with this very sound and just decision was one by the same court in McQueen v. Wilson (31 So. 94), in which it seems to have been held that the mere fact that a rector being a beneficiary of the will of one of his parishioners, participated in its preparation by making suggestions, raised a presumption of law that the will was made under undue influence. This decision seems not upheld, but in reality opposed by the cited earlier decision of the Supreme Court of Alabama, in Bancroft v. Otis (91 Ala. 279).

The general course of recent decisions on the question of undue influence illustrates simply the application of principles of common sense to varying conditions of fact. With regard to alleged undue influence by laymen upon laymen, the weight of modern authority is strongly against indulging in technical presumptions and in favor of sifting the facts and determining each case on its peculiar merits. In the case of an attorney the attitude of the courts is necessarily somewhat different. There the relation itself, very properly, raises something of a presumption of unfair influence which the attorney is required to rebut. But, as shown by the recent decision of the Supreme Court of Alabama in Kidd v. Williams (supra) and the above extract from the American and English Encyclopedia of Law, the attorney may support his burden by any evidence that is intrinsically satisfactory. The necessity of showing that a client took independent advice is not absolute, although in cases as to which doubt may arise the practice of insisting upon independent advice has much to commend it.- New York Law Journal.

Correspondence.

"THE TRUSTEE'S RIGHT TO PURCHASE THE TRUST ESTATE."

To the Editor of the Albany Law Journal:

There is a marked distinction between the cases of Scholle v. Scholle (101 N. Y. 167) and Corbin v. Baker (167 N. Y. 128), which is not noted by Mr. Cutting in his consideration of the two cases in your February number.

The Scholle suit was one in partition. William was a tenant in common with Jacob and Abraham, who died, leaving a will, appointing William a trustee and executor. He did not qualify, Jacob did, and the action was to compel them to complete their purchases, which they sought to be relieved from, on the ground that, as they were trustees, they could not acquire a good title, and the cestuis united in compelling them to take.

Corbin v. Baker was a collateral attack on the right of trustees to acquire trust property by purchase under judgment of partition. Bennett, Sr., died in 1872, leaving will two children each taking one-half, one share held in trust by owner of other half under will. In 1881 he brought partition, and in 1888 he purchased, giving back a mortgage for the half interest of the trust estate; he then conveyed to Corbin, who held until 1896, when he died. Corbin's executors sought to sell in 1900, and as regards all except the cestuis, he certainly had a good title. The objection is made

that the vendor to Corbin acquired no title, but that involved an attack upon the judgment rendered in 1888 by the Supreme Court, which certainly had jurisdiction of the persons and the estate of Bennett, Sr., and which judgment was not void on its face, and in which no fraud was shown. (See Black on Judgments, sec. 245 et seq.)

"If after the rendition of a judgment of a court of competent jurisdiction (judgment of partition and sale in Bennett v. Bell), and after the period has elapsed when it becomes irreversible for error, and that court may in another suit (Corbin v. Baker) inquire into the irregularities or errors in such judgment, there would be no end to litigation and no fixed established rights."

NEW YORK, April 10, 1902.

ANDERSON PRICE,

25 Broad Street.

New Books and New Editions.

Cyclopedia of Law and Procedure. Edited by William Mack and Howard P. Nash. American Law Book Company, 76 William street, New York city. Vol. 3, "Appeal and Error," "Assignee." We are in receipt of the third volume of the Cyclopedia of Law and Procedure, and, in view of certain strictures of a rival publishing house, have given it a more than cursory examination. We are pleased that a careful analysis of its contents confirms us in the view, heretofore expressed, that this Cyclopedia is a carefully compiled and ably edited compendium of the law.

The volume before us contains the concluding sections of the well-considered article upon "Appeal and Error," edited by Walter Clark, of the Supreme bench of North Carolina. In view of the fact that there has not heretofore been an attempt to cover fully the law upon this all-important subject, we have devoted more time to a critical examination of this article than to others in the volume; and we feel no hesitancy in recommending the work, stamped as it is with the approval of so eminent a jurist, to the profession at large. One highly commendatory feature of this publication is the reference to the different sections of the Century Digest, pointing out where a parallel treatment of different sections of the law may be found and treated from the digest point of view. The Century Digest purports to give an elaborate abstract of every reported decision in the United States, and it often happens that lawyers have access to these abstracts of cases, where the fully reported decisions are not accessible.

Of the other subjects treated in this volume, "Arbitration and Award" is probably the most