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to prepare an affidavit showing a meritorious defense.

feiture, forfeiture was waived. Opinion by COOLEY, This was granted, but upon failure of defendant so to

J.-Pennsylvania Fire Ins. Co. v. Kittle. do bis plea was stricken from the files, and judgment OVER-PAYMENT_MONEY HAD AND RECEIVED rendered for plaintiff. From this defendant appeals.! PLEADING.-1. Where there has been a bargain for the The court, CRAIG, J., delivering the opinion, say: | sale of lands at a price measured by the cost, which “Had appellant desired to test the sufficiency of his the vendor falsely over-stated, the over-payment may affidavit of merits, he should, in the first instance, be recovered on a count for money had and received. when the motion was made to strike from the files his 2. A declaration which states facts that present a sufplea, have abided by the affidavit, and excepted to the ficient cause of action in assumpsit, may be considered ruling of the court. His failure to do tbis, and obtain as so grounded, although its frame shows the pleader ing leave to amend upon terms, must be regarded as a to have intended it as a count in tort. Opinion by waiver of the right to insist upon the sufficiency of the COOLEY, J.-Barnard v. Colwell. affidavit on appeal, see 84 III. 18. Where a defendant

JUDICIAL ORDER FOR PAYMENT- TIME.- A judi. files with his plea an affidavit of merits, as required by sec. 37, R. S. 1874, page 779, the court has no power to

cial order for the payment of money should require it

to be paid 'within a time fixed after the order shall be require an affidavit setting up in detail the defense; but where a defective affidavit of merits is filed, and leave

served. If it is not so drawn, but requires payment to is asked to amend, then the court may, in its discre

be made within a certain number of days, it should be tion, impose terms. Here the appellant, by asking

construed to mean so many days after service. So

held, of an order for payment of temporary alimony in leave to amend, conceded the affidavit to be defective,

a divorce suit. Opinion by COOLEY, J.-Davis v. Da. and the court did not exceed its power in requiring a meritorious defense to be disclosed as a condition to allowing the amendment.” Affirmed.-McKichan v. Follett.



July Term, 1878.

HON. HORACE GRAY, Chief Justice.
June Term, 1878.


HON. J. V. CAMPBELL, Chief Justice.

WILLIAM C. Endicott, Associate Justices. 5 T. M. COOLEY,

OTIS P. LORD, « ISAAC MARSTON, Associate Justices.


BANKRUPTCY – DEBTS NOT DISCHARGED BY. CRIMINAL LAW-PUNISHMENT — EXCESSIVE SEN- ! Where the defendant obtained possession of a check by TENCE.-1. One convicted in a court of record of an the f: audulent representation that he wished to examoffense cognizable by a justice can bave no severer ine it, made with a fraudulent purpose to cheat and sentence than a justice could impose had he tried him. defraud the plaintiff, and having thus obtained it kept 2. A sentence merely excessive is to be reversed for the and converted it to his own use, with the same fraud. excess only. Comp. L. 1871, § 7998. Opinion by ulent purpose, in an action oi tort to recover for the COOLEY, J.-Brown v. People.

conversion, it was held, that the demand was within MORTGAGE – WHAT COVERED BY. – A mortgage

the class of debts excepted from the operation of a without covenant of title or warranty was given upon

discharge in bankruptcy. Opinion by SOULE, J.certain lands. It transpired that an undivided one Burnham v. Noyes. third interest was not in the mortgagor, and his wife LEVY ON MORTGAGED ESTATE. — 1. A mortgaged afterwards acquired it: Held, that a decree foreclosing estate may be levied upon and set-off by metes and her right in the third was erroneous. Even if the hus bounds in the same manner as if it were not so incumband furnishsd the means to pay for it, the complain bered, provided the creditor is content to take it subant's interest was unaffected by the change in the title. ject to the incumbrance. 2. The fact that the creditor Opinion by COOLEY, J.-McClure v. Holbrook.

in such a case was mistaken in his assumption that the STATUTE OF LIMITATIONS – FRAUDULENT CON..

mortgage bad been paid off, and, therefore, failed in CEALMENT.-Where it was alleged that a clerk in de

his attempt to contest its validity, would have no effendant's office fraudulently concealed from the claim

fect to defeat the levy on land not included in the ant the fact that her claim had been collected; Held,

mortgage. Opinion by AMES, J.-Pettu v. Peppard. that such fraudulent concealment did not take the case FORGED BONDS – ACTION TO RECOVER MONEY out of the statute of limitations, as the concealments PAID FOR.-In an action of contract to recover the which, under the statute, would prevent a bar are not amount paid by plaintiffs to defendant's firm for cersuch as are made by persons other than those sought tain United States bonds, purporting to be, and sold to to be charged in the action. Opinion by MARSTON, J. the plaintiffs as genuine bonds, which bonds were - Stevenson v. Robinson.

afterwards discovered to be forged and counterfeit, it SECOND INSURANCE- FORFEITURE WAIVED. – 1.

was: Held, 1. That, under the special facts and cir. In an action on a policy containing a clause of forfeit

cumstances of the case, the action might be maintainure for second insurance, evidence that the insured ob

ed without returning the counterfeit bonds to the de. tained such second insurance because she had been ad

fendan!; and, 2, that it was not a prerequisite to the vised that the first insurance was invalid, is irrelevant

plaintiff's right to sue that they should first repay In breach of contract the motive is immaterial.

to the United States the money which they had re2. Where the agent, knowing of the additional insur

ceived upon the redemption of the bonds. Opinion by ance, called upon the insured to go on and make out

ENDICOTT, J.-Brewster v. Burnett. her proofs, and required her to be at the trouble and TORT-RISKS ASSUMED BY EMPLOYER.-In an :C. expense of correcting them without giving her to un tion of tort to recover for personal injuries received ly derstand that the company would rely upon the for. | plaintiff, a railroad engineer, by striking against a sig. nal post while leaning out over the edge of his locomotive, in order to see a signal given by the conductor, it appeared that the posts were placed three feet and eight inches from the track, and were two feet and a halt from the outside of a passing locomotive; that the abutments of numerous bridges, buildings and other structures on the line of the defendant's road were the same distance from the track; that these facts were known to plaintiff, though he testified that he had not, previously to his alleged injury, noticed this particular post, though it was visible for nearly half a mile in either direction: Held, that the injury was a risk which the plaintiff assumed by entering into defendant's employment. Opinion by ENDICOTT, J.Lovejoy v. Boston & Lowell R. R.

preme court will, in the absence of other irregularities, treat the case as valid. 2. A finding made and entered in the case made by the judge while settling and signing such case, showing that such notice had been given, is sufficient evidence, prima facie, to prove the fact that such notice was given. Haynes v. Cowen, 15 Kas. 637, second syllabus, and opinion of Brewer, J., pp. 645, 646. 3. The defense of usury can not be set up against a negotiable promissory note while in the hands of an innocent indorsee who purchased the same before maturity. Day y. Walker, 16 Kas. 326, 332; Holden v. Clark, 16 Kas. 326; authorities cited in brief of counsel for plaintiff in error in this case. The judgment of the court below will be reversed and canse remanded for further proceedings. Opinion by VALENTINE, J. Reversed. All the justices concurring.-Gross v. Funk.




July Term, 1878.


istered by courts of countries where the common

law prevails. By GEORGE W. BRANDT, of the Chi. HON. ALBERT H. HORTON, Chief Justice.

cago bar. Chicago: Callaghan & Co., 1878. " D. M. VALENTINE, } Associate Justices.

A book which is sure to become popular, and is likely " D. J. BREWER,

to have a large sale; which will be found of practical

value, aud is certain of being one of the first volumes ALIMONY-INCREASE OF ALLOWANCE. — Alimony turned to whenever a question on the law of suretyship made to a wife on a decree for divorce from the bonds and guaranty presents itself to the judge or practiof matrimony by reason of the fault or aggression of tioner for solution, the work before us can hardly claim the husband, under the statute of this state, is to be for itself the name of treatise, nor for its compiler the based upon the circumstances of the parties at the title of author. Yet, as a compilation of the law on time of the divorce, and is not to be modified by sub this subject, it is really excellent. The work of collectsequent changes in these circumstances. The court

ing the cases has been thoroughly and systematically has no power, on subsequent application stating cir performed. The arrangement of the chapters and seccumstances thereafter arising, to increase or diminish

tions has been made with a distinct appreciation of the the allowance given in the original judgment. Opinion valuable time so often consumed in the search for a by HORTON, C. J. Reversed. Valentine, J., concur subject in a badly arranged digest. No less than 5,000 ring: Brewer, J., not sitting.-Mitchell v. Mitchell. cases are cited, and the points decided in them clearly

stated. Whoever has occasion to turn to the law of MORTGAGED PROPERTY-REPLEVIN-PRACTICE.

suretyship and guaranty will find in this book every 1. R mortgaged to s certain lands on which was a grist

decided case on the particular question he wishes to mill and in which mill were certain fixtures. After

have answered, and will find them easily. wards R, for the purpose of defrauding S, severed said

The work is divided into twenty-three chapters, and mill fixtures from the mill and sold and delivered them

sub-divided into numerous sections. In the chapters to K, who purchased and received the same for a like

are discussed, in the order given, the contract of guarpurpose. Held, that said mill fixtures belonged to R

anty; the statute of frauds; the liability of the surety until he sold them to K, and that they never became

or guarantor generally, and when the principal is disthe property of S, and that neither s nor any person

charged or not originally bound; continuing guaranclaiming under him can maintain replevin against R

ties; cases where the surety on a general obligation is for them. 2. A mortgagor of real estate has the right

liable only for limited time or act; the liability of acto the possession of the mortgaged property, and a

commodation parties to negotiable instruments, and of right to remove timber, wood, sand, earth, coal, stone

the blank indorser of another's obligation; the notice or anything else therefrom, and to sell the same, un

and demand necessary to charge a guarantor; the less it unreasonably impairs the mortgage security.

rights of the surety or guarantor against the principal, When it impairs the mortgage security, the remedy of

and against the creditor and third persons, and between the mortgagee is not at law, but in equity, not replevin

each other; contribution; subrogation; the discharge to recover the property severed from the realty, but

of the surety or guarantor by payment, by the giving generally injunction to restrain the commission of the

of time, by alteration of the contract, by misrepresenwaste upon the realty. Opinion by VALENTINE, J.

tation, concealment, fraud and non-compliance with Affirmed. All the justices concurring.–Vanderslice

the terms upon which he became bound; the discharge v. Knapp.

of the surety or guarantor by the creditor relinquishCASE MADE, PRACTICE - USURY – NEGOTIABLE | ing security for the debt, and negligently losing securety Note.-1. Where due notice of the time and place of for the debt; obligations given in the course of the settling and signing a case made for the supreme court administration of justice; bail; sureties on official has been given to the adverse party, such party can bonds: statutes relating to sureties and guarantors; not ignore such notice, or treat it as a nullity, al evidence. This, it will be readily seen, covers the though the time fixed in such notice for settling and whole ground, and collects the law on this subject in sigping such case may be earlier than the case could | a broader way than has been attempted by any properly be settled and signed. Nelson v. Becker, 14 | previous writer. There is nothing original in Kas. 509, 510, and cases there cited. And where the the work; nothing that the reports have not been judge of the court, in the absence of the adverse | preserving within their covers for months or years, party, and without any objection from any other per- | according to the age of the decisions, has been able son, seltles and signs the case upon such a notice, and to find its way into these pages. Nowhere, so far as nothing further is done concerning the same, the su- we haye been able to discover, is a single opinion ex


pressed, which, it anyone cared to search, could not be viding that attorneys shall not be received as bail in crimfound in the previous judgment of some English or

inal case, merely directory, and if an attorney is received

as bail. he is bound, notwithstanding, Sherman 1. State. American judge. In short, the work, except in form,

4 Kas. 570; Jack v. People. 19 IU. 57; Holandsworth v. Com. is a digest, though an excellent one at that. This will be

11 Bush. 617. readily seen by selecting a section at random from the

So as to non-resident when statute provides that bail first few pages. In the work, for example, we have

shall be a resident. Com. v. Ramsey, 2 Duvall, (Ky.) 386. the following:

So as to single surety when statute requires two. Reynolds $4, WHEN MARRIED WOMAN MAY BECOME SURETY BY

v. Dechaums, 24 Ter. 174. VIRTUE OF STATUTE.-When statute says party shall not be

It was one of Dr. Johnson's sayings that as the law received as suret y, he is nevertheless bound if he is received as

became older and decisions multiplied, there would such. A married woman can not, unless enabled by stat

exist fewer reasons for investigating the principles ute, become surety for her husband or a stranger. (1.) She can not bind herself nor her separate property, either at

upon which the precedents rested. Mr. Brandt might law or in equity, by such a contract. The contract is ab

very happly have placed this dictum of the old literary solutely void at law, and equity will not charge her separate autocrat upon the title page of bis book, as he no estate where she has received no benefit. (2) In many states doubt had it in mind when examining and arrangby statute a married woman may hold, manage and contracting his subject. Of its truth no one who is familiar with reference to her separate property, the same as it she

with the decisions of our courts can have much doubt. were unmarried. She can not, however, by virtue of such

And it is probable that this will continue to be true a statute become a surely. The intention was, by such statutes, to remove her disabilities for her interest, and not

until the precedents shall have so increased in number to enable her to contract onerous obligations from which

and shall have become so conflicting and irreconcilable she derived no benefit. (3.) But where a statute provided that to follow them will be impossible, and to go back that a married woman might contract the same as a feme again to that reason which is said to be the foundation sole, it was held that she might lawfully mortgage her

of all law shall be the only escape from chaos. In the homestead for an existing debt of her son.. (4.) So where

present state of things, then, the book before us de. a statute provided that the "contract of any married woman made for any lawful purpose * * (should) be valid

serves to be greeted with approval, and its compiler is and binding and * * (might) be enforced in the same

entitled to the thanks of the profession for his labors manner as if she were sole," it was held that a married wo.

in the field he has chosen. His book will be little read man might become a surety, the contract of suretyship but it will be often referred to. It will be found in being a lawful contract and, in that case, for a lawful almost every library, as are Bouvier's Law Dictionary, purpose. (5) A statute providing that attorneys shall not be and the United States Digest, which, though never received as bail in a criminal case is constitutioval, (6) but

purchased on account of the literary style or legal such a statute is only directory, and if an attorney signs as

opinions of their compilers, are yet a necessity to ev. bail he is bound, notwithstanding the prohibition of the

ery lawyer. statute. (7) Where a statute provided that bail should be a resident of the state, a non-resident who was accepted as bail was held bound, (8) A statute provided that an administrator should take notes with two sureties for cer

NOTES. tain debts due estates. A note in such case was taken with only one surety, and he was held liable, it not appearing that any fraud or imposition had be practiced on him. (9)

BENJAMIN T. THOMAS, some time a jaslice of the (1) Fireman's Ins. Co. v. Cross, 4 Rob. (La.) 508;

Supreme Judicial Court of Massachusetts, died at his Gosman v. Cruger, 7 Hun, 60.

home in Beverly, on the 27th ult., aged sixty-five years. (2) Yale v. Dederer, 18 N. Y, 265; Perkins v. Elliott, 8 C.

He was appointed to the supreme bench in 1853, upon E. Green (N. J.), 526. (3) Athol Machine Co. v. Fuller, 107 Mass. 437; West v.

the resignation of Mr. Justice Fletcher, but held the Laraway, 28 Mich. 164.

office only six years— Cornelius L. Allen, a judge of (4) Low v. Anderson, 41 Ia. 475.

the Supreme Court of New York for the fourth district, (5) Mayo v. Hutchinson, 57 Me. 546.

from 1851 to 1859, died at Salem, in that state, on the (6) Johnson v, Com., 2 Duvall (Ky.)' 413.

30th ult., in his seventy-eighth year— A correspond(7) Sherman v. State, 4 Kas. 570: Jack v. People, 19 Ill. ent of the Albany Law Journal calls attention to the 57; Holandsworth v. Com., 11 Bush. 617.

enterprise of the Chicago Legal News, in publishing (8) Com. v. Ramsey, 2 Duvall (Ky.), 386.

in its issue of September 14, 1878, the case of Insurance (9) Reynolds y. Dechaums, 24 Tex. 174.

Co. v. Brame-(see CENT. L. J., February 15, 1878, p. Now, in a digest, this section would appear in a

122)—a case which, among those in the last volume of somewhat different form, but with scarcely any alter

Otto's Reports, has been in the hands of the profession ation in diction. There it would be presented thus:

for several months. “Now let us have republished,"

says the writer, “sume of the good old cases, Mar. MARKIED WOMAN can not, unless enabled by statute, be bury v. Madison; In re Dred Scott, etc., etc.”— The come surety for husband or stranger. Firemans Ins. Co. v.

New York correspondent of the Cincinnati Gazette, Cross, 4 Rob. (La.) 508; Gosman v. Cruger, 7 Hun, 60. Can.

speaking of J. Fenimore Cooper's notorious libel not bind herself nor her separate property by such a con.

saits, says that James Watson Webb and Thurlow tract; at law it is void, and equity will not charge her sep

Weed are the only editors now living whom he sued, arate estate where she has received no benefit. Yale v. Dederer, 18 N. Y 265; Perkinsv. Elliott, 8 C. E. Green, (N Y.)

and adds: “ Cooper sued each of them for criticising 526. Statutes permitting, to contract as if sole do not

his books, and obtained a small amount of damages. allow her to become a surety. Such statutes remove her Even Greeley was also mulcted for a similar critique. disabilities for her interest, but do not enable her to con Cooper, however, was the greatest sufferer. He lost tract onerous obligations not for her benefit. Athol Ma the respect which his genius might have commanded, chine Co. v. Fuller, 107 Mass. 437; West v. Laraway, 28 Mich,

and his life was evidently shortened by the vexation 464. Though she may mortgage her homestead for debts of

which he had inflicted on himself. He always summed her son. Low v. Anderson, 41 Ia. 476. Statute providing that the contract of any married wo

up his cases, which he did in so masterly a manner that man for any lawful purpose “shall be valid, and be en

it commanded general admiration. In fact, Cooper was forced as if she were sole," gives her power to become a

the finest speaker in the record of American authorsurety. Mayo v. Hutchinson, 57 Me. 546.

ship, and I shall never forget one of his pleas which it CONSTITUTIONAL LAW-ATTORNEYS.-Statute providing was my privilege to bear. He died poor, for his books that attorneys shall not be received as bail in a criminal became unpopular, and every suit he gained impaired case, constitutional. Johnson v. Com., 2 Duvall, (Ky.) 410. bis literary capital. This was his weakness, and he had

SURETYSHIP-STATUTORY DISABILITIES.-Statute pro. I to suffer its consequences.”

engagedit of game, ting, and chi

The Central Law Journal.

jury the law on any subject brought before them for determination. But the court is

under no such duty, uncalled upon, to explain SAINT LOUIS, OCTOBER 18, 1878.

the meaning of ordinary words ; neither is it

necessarily error for the jury to inform themCURRENT TOPICS.

selves of the meaning of such words from the dictionary, when they have occasion to use

them in writing special verdicts.In Wright v. Clark, 50 Vt. 130, the defendant who was sued for killing the plaintiff's dog attempted to justify the killing under a The case of Waters v. Stevenson, recently statute of that state (G. L. 627, § 3), which decided by the Supreme Court of Nevada, makes it the duty of the owner or keeper of a contains an exhaustive discussion of the subdog to cause a collar, with his name plainly ject of damages in an action of trespass for unwritten thereon, to be worn on the neck of lawful conversion. The plaintiff, upon whose the dog, and then provides : “And it shall be lands the defendant had entered, under a mislawful for any person to kill any dog running take as to their extent, and had extractat large off the premises of the owner or ed ore from his mines, was held to be enkeeper, not having on such collar; and titled to damages, but these damages were the owner or keeper of such dog shall restricted, reversing the ruling of the recover no damage for such killing.” It court below, to the value of the ore as it lay in appeared that the dog in question was a the mine before it was extracted. In Pierce hound, kept for hunting, and chained when not v. Benjamin, 14 Pick. 361, the court say: in pursuit of game, and that it was shot while - The general rule of damages in actions of engaged in a hunt, though some distance from trover is, unquestionably, the value of the its master. The court held that the dog was property taken at the time of its conversion. not “ running at large,” within the meaning But there are exceptions and qualifications of of the statute. See Russell v. Cone, 46 Vt. this rule as plain and well established as the 600.-Another question raised in this case was rule itself. Wherever the property is returned this: The judge having charged that the and received by the plaintiff, the rule does not jury might give exemplary damages if they apply. And when the property itself has been found that the defendant shot the dog “in sold, and the proceeds applied to the payment tentionally and wantonly,” it appeared that of the plaintiff's debt, or otherwise to his use, after the jury retired, they expressed their the reason of the rule ceases and justice foropinion that the act of the defendant was un- bids its application. In all such cases, the intentional, but somewhat careless; that a dis facts may be shown in mitigation of damcussion then arose as to the proper word to ex- | ages.” And in Baldwin v. Porter, 12 Conn. press that idea in their verdict, and as they were 484, it is said: “Both the rule and the exunable to agree, the officer in charge, by their ceptions proceeded upon the principle that the direction, brought them a copy of Webster's plaintiff ought to recover as much, and no Unabridged Dictionary, which they consulted in more, damages than he has actually sustained, making up their verdict, and from which they which, commonly, is the value of the property; took the word “wanton,''which they used in the and hence the general rule. No good reason, verdict. The court held that there was no error consistently, can be suggested why greater in this. ““There is no analogy,” said the court, damages should ever be recovered than have, in “between the jurors obtaining a dictionary to truth, been sustained, except in those cases ascertain the meaning of the language which where the law permits, by way of primitive they use in a special verdict, and giving | justice, the recovery of damages.” The Suthem the general statutes by direction of the preme Court, in the case at bar, entered into court, to hunt out for themselves the law re

| a lengthy review of the cases on the point, viz; lating to manslaughter. The jurors are to re- | Kier v. Peterson, 41 Penn. St. 357; Martin v. ceive the law from the court. It is the duty | Porter, 5 M. & W. 353; Morgan v. Powell. 3 and prerogative of the court to explain to the Ad. & El., N. S. 281; Cushing v. Longfellow,

Vol. 7–No. 16.


26 Me. 310; Wild v. Holt, 9 M. & W. 671; pardons. Services were also rendered at Bennett v. Thompson, 13 Ired. 148 ; Smith v. plaintiff's request in the trial of another perGondor, 22 Ga. 353; Chicago S. B. Dock Co. son, where a nolle prosequi was entered. For v. Dunlap, 32 Ill_210; Forsyth v. Wells. 41 these services plaintiff and Minor each de Penn. St. 291; Maye v. Tappan, 23 Cal. 306 ; ! manded $5,000. Defendant paid plaintiff Galler v. Fett, 30 Cal. 485; Barton Coal Co. $1,300 and Minor $1,000, and refused to pay v. Fox, 39 Md. 3,; Robertson v. Jones, 71 more. Hence the action. On the trial the Ill. 405; McLean County Coal Co. v. Long, court refused to allow one Kaine, a witness 81 Ill. 359; Hilton v. Woods, 4 Eq. 438; and a member of the bar, to answer the folBarnsley Canal Nav. Co. v. Twibill, 3 Eng. lowing questions: 1. What was the usual comRailway Cases, 356 ; Chipman v. Hibbard, 6 pensation charged at the Fayette county bar Cal. 162; Stockbridge Iron Co. v. Cone Iron for defending a prisoner charged in the quarter Co., 102 Mass. 86; U. S. v. Magoon, 3 Mc sessions with felony, where the time consumed Lean, 171; Weymouth v. C. N. R. Co., 17 in the trial was one day, and where a motion Wis. 551; Single v. Schneider, 24 Wis. 300, for a new trial and a motion in arrest of judg30 Wis. 570; Winchester v. Craig, 33 Mich, ment were made? 2. What would the ser207; Folsom v. Apple River Log Driving Co., vices of an attorney be worth to go before the 41 Wis. 608; Herdic v. Young, 55 Penn. St. board of pardons at Harrisburg, where the 177; Lykens Valley Coal Co. v. Dock, 62 time consumed did not exceed three days in Penn, St. 232, and Coleman's Appeal, Id. going and returning? The Supreme Court 278. After reviewing these cases, the court, held that these questions were properly put; in the principal case, say: “A careful ex that the value of the services of a lawyer in a amination of the authorities has convinced us given case may be shown by the testimony of that there is a growing inclination among all lawyers as to the value of services of counsel, courts, where it can be done, to apply the only under circumstances of general similarity to safe. and just rule in actions for damages, those under which the services in question whether ex contractu or ex delicto, and that is, were rendered. “It is true," said the court, to give the injured party as near compensa- " that no two cases are identical, and the tion as the imperfections of human tribunals | amount of labor in the preparation and trial of will permit. This is the aim, the ideal, of the | one will never be precisely the same that may law, and it is the duty of courts to come as be required in the preparation and trial of any near it as possible in practice; and although other. And it may be assumed to be equally courts differ as to the method of ascertaining true that the defendant derived all the advanthe actual loss, as well as to what constitutes tage from the efforts of his counsel which the actual loss, still there is a refreshing unanim highest legal ability and skill could give. And ity of opinion that such loss only, when ascer yet, the fact remains that the case presented tained, ought to be compensated in the ab here is a demand of five thousand dollars by gence of fraud, malice, or culpable negli one of two counsel of a defendant charged

with a felony, for services rendered upon his

trial and in his application for a pardon. The A DECISION of some personal interest to the same fee demanded by Mr. Minor would swell profession has been made by the Supreme the amount to ten thousand dollars. The acCourt of Pennsylvania, in the late case of tion was not upon any special undertaking by Thompson v. Boyle, the question being the

which the defendant had become bound. It measure of value of legal services. The ac was on a quantum meruit. If the fee demandtion was brought by Boyle for professional ed was such as any usage warrants, it is very services. He and one Minor were employed clear that poor men charged with crime must by the plaintiff in error to conduct his defense defend themselves without professional aid. on an indictment for abortion. Thompson Whether or not the proceedings were so exwas found guilty, and an application was made ceptional as to justify a charge transcending for a writ of error by defendant's counsel and any known usage, would depend on facts to denied. An application was made for a par- be found by a jury on evidence submitted to don, and plaintiff attended before the board of them. But professional employment in one


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