Senator Fowler proposes an amendment to section seven of article six of the Constitution, by striking out the provision requiring the holding of the General Term in each judicial district. This is designed to limit the place of holding the General Terms to one locality in each Department.

IN

NOTES OF CASES.

and a violation of the ethics of his profession, for a physician to employ a drummer to procure patients for him, but appellee had no legal power to make such drumming a crime, and punish it as such.”

The Imperial Appellate Court of Austria decides that a promissory note executed in England can be sued upon in Austria as a bill of exchange, it being proven by the testimony of English lawyers and an English notary, and also by the certificate of the attorney-general, the Austrian legation and the consulate-general, and by the acts of Parliament, that bills of exchange and promissory notes stand on an equal footing in England. The court further decides that a married woman, a citizen of Hungary, who under the laws of Hungary is incapable of executing a binding bill of exchange, is not bound by a promissory note executed by her in England, because "a subject of a State remains tied to the laws of his country even beyond the limits of the land."

In re Smith's Will, Wisconsin Supreme Court, April 19, 1881, 8 N. W. Rep. 602, should be read in connection with Brown v. Ward, 52 Md. 376, ante, 262. It holds that a mere belief in " "spiritualism does not destroy testamentary capacity, although united with peculiar eccentricities. The court thus describe the testator: "It satisfactorily appears that the deceased was a gentleman of excellent N Thomas v. City of Hot Springs, 34 Ark. 553, a moral character, and that his intellectual powers city ordinance prohibited "drumming" or sowere of a high order. His mind was cultivated by liciting patronage for hotels, boarding-houses, bath-reading and study, and his general information was houses, physicians, quacks, and vendors of nostrums. Held, void as to competent physicians; and, so it seems, as to hotels, boarding-houses, and bathhouses. The court said: "A arummer is one who solicits custom. Webster. Drummers are, and have been for ages, a large and active class of commercial and business agents. They, it must be presumed, were as familiar to the law-makers, as brokers, hawkers, peddlers, pawnbrokers, and others mentioned in the above act; and yet they are not named, nor has our Legislature, by any act, thought proper if it might do so in the exercise of the police power-to require drummers to obtain license from any source, or undertaken to make it a criminal offense to drum for any lawful business." "No doubt a corporation may make it a penal offense for any person to drum customers to gaming-houses, g:.mbling-tables, banks, etc., strumpet-houses, and other occupations which are immoral and pernicious in their character and tendencies, such as it has power under its charter to suppress. But the keeping of hotels, boarding-houses, bath-houses, and the practice of medicine by competent persons, are ordinary, lawful, and useful occupations, and to make it a crime to solicit custom for them is an unwarranted interference with constitutional rights and privileges of citizens under our form of government. In this case appellant was charged and convicted for soliciting a patient to a physician, who was a graduate of medicine, and skilled, it must be admitted, in his profession. It may be in bad taste,

very extensive and varied. One witness says, no doubt truly, that he was a first-class mechanic and scientist; that he had a good theory of mechanics, and was a well-read man. He seemed to have some talent for invention, and did invent several articles which he sought to bring into use. He attempted other inventions, and failed. He possessed great self-reliance and firmness, and was not easily swerved from a purpose deliberately formed. Some of the witnesses say he was very conceited and self-willed." "In short, the deceased was a person of vigorous intellect and will, had unbounded faith in the accuracy and soundness of his own judgment, and was moved to action by an earnest, sanguine temperament. In such a man we should naturally expect some peculiarities or eccentricities of conduct, but we find fewer of these disclosed in the evidence than might reasonably be looked for. It appears that for a short time-perhaps two or three months, but during what year is not shown - he advertised one of his callings by wearing on the front of his hat a small paper on which were printed the words, 'Solicitor of Patents.' Also, that he was seen at different times on skates in a public street of the city. It seems, however, that he was testing a new kind of skate which he had invented. Thus far we find no evidence that the deceased was not of sound mind when he executed the instrument propounded as his last will and testament. But there was another peculiarity of the deceased which will now be considered. He was what is commonly called a

are transactions, suppose between a merchant in England and a merchant beyond sea, and an account is transmitted here from the person who is abroad, it is not the signing which will make it a stated account, but the person to whom it is sent, keeping it by him any length of time, without making any objection, which shall bind him, and prevent his entering into an open account afterward.' Chancellor Kent, in Murray v. Toland, 3 Johns. Ch. 569, mentioned the rule in these words: 'It has been often held, that if a party receives a stated account from abroad, and keeps it by him for any length of time (one case says two years) without objection, he shall be bound by it;' citing Willis v. Jernegan, ubi supra, and Tickel v. Short, 2 Ves. 239, in which last case Lord Hardwicke said: 'If one merchant sends an account current to another in a different country, on which a balance is made due to himself, the other keeps it by about two years without objection, the rule of this court and of merchants is, that it is considered as a stated account.' The Supreme Court of the United States, in Freeland v. Heron, 7 Cr. 147, spoke of the rule as a rule of the Chancery Court and of merchants,' and defined it to be thus: When one merchant sends an account current to another residing in a different country, between whom there are mutual dealings, and he keeps it two years without making any objections, it shall be deemed a stated account, and his silence and acquiescence shall bind him, at least so far as to cast the onus probandi on him.' It is thus seen, that in its inception, the rule that the reception of an account rendered, and the keeping of it for any considerable time without objection, made it an account stated that is, an account so admitted to be just and correct that it relieved the party rendering it from the necessity of proving it, and cast the burden on the party receiving it to show by affirmative evidence that it was unjust — was a rule of the Chancery Court applied only in controversies between merchants.

piritualist. He had come to believe, that through | 251, spoke of the rule thus: 'Even where there certain mediums, he could communicate with the spirits of deceased persons. He received, through one of these mediums, what purported to be a message from his deceased wife, advising him to marry the appellant, to whom he was then paying his addresses. He doubtless believed the message was from his deceased wife. He also consulted mediums quite frequently concerning his business and proposed inventions. He once engaged in wheat speculations on advice from such sources. At first he was successful, but later operations were not so successful. It does not appear that he persisted in these speculations very long after fortune turned against him. During the French and German war he believed reports of the condition of the contest which he received from mediums, although different from the current newspaper reports. But when the evidence of the truth of the newspaper reports became strong, his confidence in the infallibility of the other reports was weakened. He received a communication purporting to be from his deceased wife after his last marriage, and after he had trouble with some of his children, approving of what he had done. This was evidently after he had executed his will. It does not appear whether or not he regarded the communication as genuine, but probably he did so regard it. But the intense faith of the deceased in the accuracy of his own judgment was a counterpoise to his belief in the possibility of obtaining direct messages from the other world. It led him to admit another element in his belief which would leave him free to follow his own judgment in a given case, no matter how strongly he might be pressed by supposed supernatural advice or entreaty to act against it. So he came to believe, as one witness states it, 'that there was more than one kind of spirits - some might try to fool him, and others might not.' It is perfectly obvious from the whole testimony that the infallible test which he applied to determine from which of these classes of spirits a given message came was this: If it accorded with his judgment it came from the reliable class; if not, then it came from the other class and was to be disregarded."

DOCTRINE OF ACCOUNT STATED — BE-
TWEEN WHOM IT APPLIES.

N Anding v. Levy, 57 Miss. S. C., 34 Am.

"The rule has been extended further in some States, so as to embrace transactions between other parties. In this State, there has as yet been no recognition of it except in cases between merchant and merchant, and when it has been referred to it has been in that way." "In Virginia, in Townes v. Birchett, 12 Leigh, 173, the opinion of the majority of the court applying rule

I Rep. 195, it was held that the doctrine of lin- sumption that both parties we proceeds on, the a

bility from retaining a stated account without objection is only applicable between merchants, but between other parties such retention is a circumstance for the consideration of the jury.

The court, by George, C. J., said: "The earliest mention we have been able to find of this rule is in Sherman v. Sherman, 2 Vern. 276, decided in the year 1692, where the rule is stated by Lord Hutchins thus: that among merchants it is looked upon as an allowance of an account current, if the merchant that receives it does not object against it in a second or a third post.' Lord Hardwicke, in Willis v. Jernegan, 2 Atk.

Judge Allen dissented upon the ground that this character of the parties was not shown. He said that he had not been able to find a single case, not between merchant and merchant, in which the rule" had been applied. And this view was sustained by the Court of Appeals of Virginia in Robertson v. Wright, 17 Gratt. 534, 541. It is stated in Cowen and Hill's Notes to Phillips on Evidence, note 191, that the rule is inapplicable except as to transactions between merchant and merchant.

"In some of the late authorities the rule that the rendition of an account, and its retention without objection, makes it a stated account, is applied to

transactions between other parties than merchants. It has been so recognized in the following cases, among others: Lockwood v. Thorne, 11 N. Y. 170; Stenton v. Jerome, 54 id. 480; Case v. Hotchkiss, 1 Abb. (N. Y.) 324; Towsley v. Denison, 45 Barb. 490; Terry v. Sickles, 13 Cal. 427; White v. Hampton, 10 Iowa, 238; Tharp v. Tharp, 15 Vt. 105; White v. Campbell, 25 Mich. 463; Phelps v. Belden, 2 Edw. Ch. 1. On consideration of the authorities, we have concluded not to extend the rule, making the rendition of an account, and its retention without objection a stated account, beyond its original limits, viz.

controversies between merchant and merchant. "On the other hand, we do not follow some of the authorities, which hold that such rendering and retention is no evidence of the correctness of the account. The rendering of an account and its retention without objection, as between other parties than merchants, is admissible to show an implied admission and acquiescence in its correctness. What weight should be given to it is for the consideration of the jury, under all the circumstances of the case."

same reasons which adopt this rule among merchants will apply it to banks and their depositors."

In Brown v. Kimmel, 67 Mo. 430, the same was approved obiter in an action for professional services. The court said: "The point discussed by the coun-. sel in this case is, whether on stated accounts or insimul computassent the rules of evidence in regard to such actions are confined to dealings between merchants. That question was decided by this court in Shepard v. Bank of Missouri, 15 Mo. 143, and that decision was recognized in the recent decision in Powell v. P. R. R. Co., 65 id. 658. The rule of evidence no doubt originated in mercantile dealings and the reported cases usually relate to such dealings, but the principle seems to have been extended to all cases where the relation of debtor and creditor exists. Wiggins v. Burkham, 10 Wall. 129. The rule at best is a very flexible one, and undoubtedly depends in its application on the circumstances of each case, to be judged by the nature of the transaction, the habits of the business in which it occurs and the course of trade. White v. Hampton, 10 Iowa, 238. In a general way an account rendered by a creditor to his debtor, and not ob

This point does not seem to have been raised or passed upon in Lockwood v. Thorne, 11 N. Y. 170.jected to within a reasonable time, is regarded as That was a case between tanners and leather merchants. The same is to be said of Stenton v. Jerome, 54 id. 480, a case between a stock broker and a customer. So of Case v. Hotchkiss, 1 Abb. Ct. App. Dec. 324, a case between attorney and client. So of Towsley v. Denison, 45 Barb. 490, a case between a vendor of stone and a canal contractor. So of Terry v. Sickles, 13 Cal. 427, where it does not appear that the parties were merchants. White v. Hampton, 10 Iowa, 238, is not at all in point. The question does not seem to have been raised in Tharp v. Tharp, 15 Vt. 105. All these cases, however, enforce the doctrine of aecount stated between others than merchants as an estoppel.

In White v. Campbell, 25 Mich. 463, the court said: "The rule itself is said to have been founded originally on the practice of merchants, and in Lord Hardwicke's time it was stated to be a rule among merchants." But the doctrine was there applied to others.

Wharton (2 Ev., § 1140) speaks of the doctrine as prevailing in regard to transactions between "business men."

In Townes v. Birchett, 12 Leigh, 173, the transactions were between a merchant and an auctioneer, the account being of auction sales.

In Shephard v. Bank of Missouri, 15 Mo. 141, this question was directly passed upon, and decided contrary to the principal case. The court said: "It is true these cases are between merchant and merchant, and are generally found in chancery proceedings; but there is no reason why the same doctrine should not prevail between any other persons with whom are accounts current or accounts of transactions in the ordinary course of business. There is a presumption of correction, of fairness and of truth, in the account thus kept, which becomes strong and forcible after the acquiescence of the party charged with it for months or years. The

evidence of an account stated that is of an account conceded by both parties to be correct. And it has been held that what is a reasonable time in which to make objections is a question of law to be determined by the court. There are cases in which this presumed acquiescence, arising from lapse of time and failure to object within a reasonable time, has been considered very slight evidence of the correctness of the account. Kellam v. Preston, 4 W. & S. 16; Spangler v. Springer, 22 Penn. St. 454; and others again where the courts have regarded it as conclusive, except where fraud or mistake is clearly shown. Lockwood v. Thorn, 11 N. Y. 170. It will readily be perceived, on an examination of the numerous cases reported on this subject, that they have been decided on the peculiar circumstances attending each case, and most generally in proceedings in equity. In no case has such implied admission been held to be an estoppel, but simply a prima facie case throwing the burden of contradiction or explanation on the adverse party. The case of Phillips v. Belden, 2 Edw. Ch. 1, and Hutchinson v. Market Bank of Troy, 48 Barb. 324, contains quite an extensive discussion of the subject. But it is unnecessary to examine the subject here, as the pleadings do not present the question. The action in this case is not on an account stated."

We do not find that the citation of Cowen and Hill's Notes, in the principal case, is supported by the reference.

REMOVAL OF CAUSE - CITIZENSHIP OF
PARTIES.

UNITED STATES SUPREME COURT, MAY 2, 1881.

BLAKE V. MCKIM.

Congress, in determining the jurisdiction of the Circuit Courts over controversies between citizens of different States, has not distinctly provided for the removal from a State court of a suit in which there is a controversy not wholly be