Central Law Journal.

ST. LOUIS, MO., AUGUST 2, 1901.

The peculiar value of oral argument is very often greatly underestimated not only by lawyers but also by judges on the bench. How often one observes an attorney carelessly "making a few remarks" to the court and wasting a most precious opportunity to incline the mind of the judge in his favor which not even the most laborious and painstaking brief could even be expected to do. The later generation of lawyers seem to rely more upon the logic of cold type than of burning words addressed to the ear of the court. This tendency of the bar is regretted by Mr. Justice Harlan of the Supreme Court, in a statement made to a correspondent of the New York Evening Post, as follows:

"It is a matter of serious regret and concern to this court that the practice of oral argument appears to be falling into disuse. The idea seems to have become general among members of the bar that we prefer arguments presented in the form of written briefs. Such is not the case. There are many times when nothing can take the place of the personal presentation. Briefs are well enough in their way, but it very often happens that the real point upon which a case turns may be overlooked in a brief, while an oral argument may serve to bring it home to the court. A special emphasis, a striking simile may throw new light on an intricate problem, and perhaps reverse a judgment in the mind of the court."

In commenting on this, the American Law Review, says:

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"The Supreme Court of the United States have always set high value upon oral argument, and difficult cases are often ordered down for reargument by that court. hours on a side are allowed for argument, and in cases of great importance, the time is extended. During the argument the judges frequently ask questions, tending to clear doubts in their minds. It is a pleasure to listen to a good argument in the supreme court. The fretfulness and impatience of argument which are discovered in some other appellate courts does not exist there at all.”

Perhaps the "fretfulness and impatience" of judges, and especially judges of nisi prius courts is the lack of preparation on the part attorneys. Oral argument in the general run of it to-day is, in most cases, exceedingly tedious and commonplace and is undoubtedly a great weariness of the flesh to even the most patient judge. How different it was with men like Choate and Webster by whose burning eloquence not only juries but the courts themselves were captivated and constrained to view the law and the facts in the light in which these great advocates saw them. The idea which prevails to a very large extent that judges cannot be moved by the eloquence which would appeal to a jury, is fallacious and ought to be exploded. Judges are human, even with all the classical coldness sometimes assumed by them, and the earnest advocate with his intellectual batteries well primed and his whole nature on fire with zeal for the cause he represents is most likely to overcome the heart and mind of either judge or jury. A revival of forensic argument and a more careful preparation therefor on the part of advocates would greatly lighten the burden of the court in understanding the real point in issue and in arriving at a decission in harmony with the justice and law of

the case.

If one question in this country ought to be definitely settled it is that the manufacture and sale of intoxicating liquors is not a natural right protected by the constitution, but is a recognized evil to be suffered or licensed to exist by the people for a consideration. It is held as a favor, which, like all favors, "must be received upon such terms and conditions, and subject to such burdens and inconveniences, as the donor thinks proper to impose and the donee elects to accept." In the recent and important case of State v. Bixman, 62 S. W. Rep. 828, the Supreme Court of Missouri was called upon to wrestle with this question in the form of a state inspection tax. Act of May 4, 1899, declared that beer and malt liquors can be manufactured or sold in the state only on condition that they shall be made from certain specified cereals and that they shall be inspected and a certain amount paid to the state on each gallon inspected. This

the court held to be a proper exercise of the power of the state, since the manufacture and sale of such beverage is detrimental to public morals, and the legislature has arbitary power to prohibit such manufacture and sale absolutely if it so desired. In answer to the objection that the fee charged for inspection purposes was largely in excess of the costs of such inspection, the court held that the doctrine that an inspection law cannot be legitimately employed to yield a revenue beyond the cost of inspection has no application to a law regulating the manufacture and sale of beer and malt liquors. To the objection that the act interfered with the rights of interstate commerce, the court held that under Act of Congress, August 8, 1890, declaring that all intoxicating liquors transported into a state, on arrival therein are subject to its laws enacted in the exercise of police powers, that part of the act prohibiting the sale of beer or malt liquors till the same are inspected, and the fee therefore paid to the state, is not in violation of the rights of congress over interstate

commerce.

NOTES OF IMPORTANT DECISIONS

ATTORNEY'S FEES AS PREFERRED CLAIMS.-On first thought most attorneys would be very much inclined to take exception to the bolding of Caldwell, J., in the recent case of Latta v. Lonsdale, 107 Fed. Rep. 585, that a lawyer employed by a railroad company on a yearly salary is not a laborer or employee of the corporation entitling him to a preference over other creditors. The court sums up the question in the following words:

"A lawyer employed by a railroad company on a yearly salary, payable monthly, is not a laborer or employee, within the meaning of the sections quoted. Cent. Dict. tit. 'Wage'; Lewis v. Fisher, 80 Md. 139, 30 Atl. Rep. 608; Casualty Ins. Co.'s Case, 82 Md. 538, 566, 34 Atl. Rep. 778; Bristor v. Smith. 158 N. Y. 157, 53 N. E. Rep. 42; In re Stryker, 158 N. Y. 526, 530, 53 N. E. Rep. 525; Bristor v. Kretz, 49 N. Y. Supp. 404; Vane v. Newcombe, 132 U. S. 220, 237, 10 Sup. Ct. Rep. 60, 33 L. Ed. 310; Railroad Co. v. Wilson, 138 U. S. 501, 505, 11 Sup. Ct. Rep. 405, 34 L. Ed. 1023; 3 Thomp. Corp. § 3145. It is very generally believed that corporation lawyers have the opportunity, and are quite able and capable of taking care of themselves when their clients fail, and statutes of the character quoted are not enacted in their interest, but for the protection of wage earners proper, who are laymen, and who have neither the position nor the opportunity nor the capacity to obtain payment or security for their

services which the lawyer of the corporation has."

ADVERSE POSSESSION OF GRANTEE UNDER FORECLOSURE SALE.-The running of the statute of limitations in perfecting a title by adverse possession has always managed to come up in some changed form as a mooted question of law. In the recent case of Stout v. Rigney, 107 Fed. Rep. 545, it was held that one who enters upon land under a trustee's deed which purports to convey an absolute title, and which was executed upon a sale by the trustee in a mortgage, the purpose of which was to bar the mortgagor's equity of redemption. must be regarded as holding adversely to the mortgagors from the time his deed is recorded, and possession is taken thereunder, although the sale made by the trustee was irregular or premature; and no actual notice to the mortgagor of the adverse nature of his claim is necessary to invoke the running of the statute of limitations for its protection. The court said:

"We do not believe it to have been essential to render their possession adverse that they (the purchasers at the foreclosure sale) should have notified the complainant that they were holding the land adversely, and would dispute her right to redeem, inasmuch as the entry was made under a deed which purported to convey an absolute title, and which also professed to foreclose her right to redeem. In the case of Rogers v. Brown, 61 Mo. 187, 195, it was ruled, among other things, that the grantee under a fraudulent conveyance would be regarded as holding adversely to creditors who had challenged the validity of the conveyance from the time his deed was recorded, and we perceive no sufficient reason why one who enters upon land under a trustee's deed which purports to convey an absolute title, and to have been made with a view of barring the mortgagor's equity of redemption, should not be regarded as holding adversely to the mortgagor from the time that his deed is recorded and possession is taken, although the sale made by the trustee was irregular or premature. The precise question last suggested arose in the case of Miner v. Beekman, 50 N. Y. 337, 344, in which case it was decided that the statute of limitations began to run against the purchaser of the equity of redemption, who had not been made a party to an action of foreclosure which was brought against the mortgagor, from the time the mortgagee entered into possession as a purchaser under the defective decree of foreclosure. Our conclusion is, therefore, that the complainant's right to redeem was effectually barred by the statute of limitations long before the present bill was filed."

held liable, is within or beyond the scope of his employment; if the latter, the master is, of course, in no sense liable. No dogmatic rule can be laid down which will solve every statement of facts that may arise, but each case rests upon its own facts, and is decisive of nothing beyond an exactly similar state of facts. In the recent case of Wabash Railroad Co. v. Linton (Ind.), 60 N. E. Rep. 313, the question arose in an interesting form. It was an action against a railroad company for injury to a horse. The com. plaint alleged that, while the horse was on the railroad track, defendant's servants, riding on a hand car, willfully and intentionally frightened the horse by making loud noises, and willfully and intentionally drove him along the track between the rails at great speed, by shouting and rapidly following him with the car, to a culvert crossing the track, into which he fell, and was injured. Held, that the complaint did not state a cause of action against the railroad company, since the willful acts of its servants complained of were not shown to have been instigated by or committed for the defendant, or in the line of the servant's duty. It will be observed from the reading of the complaint that the appellee has at no place charged the appellant with the commission of any of the acts for which he seeks to hold appellant liable. The charge in either instance is that the act or acts were done by the agents and employees of the appellant, and it does not appear at any place in the complaint that such agents or employees in the commission of such acts were acting in the line of their employment, or that they were doing what they were hired to do, or were acting under the direction of the appellant. It seems to be well settled that neither a willful and tortious nor negligent act resulting in injury, if done by an agent acting without the course of his employment, can be the subject of recovery against the principal. Railway Co. v. Kendall, 138 Ind. 314, 36 N. E. Rep. 415; Railway Co. v. Palmer, 13 Ind. App. 162, 39 N. E. Rep. 881. 41 N. E. Rep. 400; Helfrich v. Williams, 84 Ind. 553; Railway Co. v. Savage, 110 Ind. 156, 9 N. E. Rep. 85; Railway Co. v. Wood. 113 Ind. 544, 14 N. E. Rep. 572. 16 N. E. Rep. 197; Wood, Mast. & S. § 205; Railway Co. v. Peterson, 144 Ind. 214, 42 N. E. Rep. 480, 43 N. E. Rep. 1; Brown v. Engineering Co., 166 Mass. 75, 43 N. E. Rep. 1118, 32 L. R. A. 605.

CORPORATIONS-LIMITATION ON THE RIGHT TO AMEND BY-LAWS.-An interesting point of law is discussed in the recent case of Wooten v. Interstate Building & Loan Association, 38 S. E. Rep. 738, involving the right of a corporation to amend or repeal a by-law, when such repeal or amendment would impair the obligation of any contract between the corporation and its stockholders. In this case an advance was made to a borrowing member of a building and loan association in accordance with the terms of existing by-laws, under one of which he was accorded the privilege of discharging his indebtedness to

the association on the basis of the payment by him of 84 monthly installments of dues and interest. It was held that the vested rights of the stockholder, under his contract of loan, to avail himself of this privilege, could not be defeated by any subsequent change in the internal law of the association whether effected by an alteration in its by-laws or through an amendment to its charter. The opinion of the court is an exceedingly valuable annotation on this very close question. The court said:

“Unquestionably, it is within the power of a corporation to pass such by-laws as are no: inconsistent with its charter and the purposes for which it was created; and, as an incident to this power, a corporation may be said to have the right to alter, amend, or repeal its by-laws from time to time as the exigencies of the occasion may render necessary and proper. But even an express grant of authority thus to effect changes in its by-laws does not carry with it any right to exercise such authority in violation of the fundamental law of the land. It is to be remembered that our federal constitution in terms provides that no state shall have power to pass any 'law impairing the obligation of contracts' (Const. art. 1, § 10); and it follows, of course, that a statute which provides generally that a corporation shall have authority to alter its by-laws from time to time is not to be understood as contemplating that the authority thus conferred may be exercised in such manner as injuriously to affect the vested rights of any person between whom and the corporation there exists a contractual relation. To otherwise construe such a statute would be to necessarily pronounce it unconstitutional, and therefore wholly inoperative. Clearly, a corporation cannot assume to exercise any right which it was not within the power of its creator to bestow upon it. So it is that ‘a bylaw cannot disturb a vested right any more than a statute; indeed, they are, in this respect, on the same plane. And, although a corporation has the power of amending its by-laws, yet, inasmuch as they enter into and form a part of the contracts it makes with its members, they cannot, under the guise of amending its by-laws, impair the obligation of such contracts. Thus, a resolution of the board of directors, or an amendment to the constitution of a building association, which modifies the rights of borrowing members, is ultra vires.' See Thornt. & Bl. Bldg. & Loan Assns., § 131, and cases cited. 'If a bylaw permit withdrawals when a member joins a society, he cannot be deprived of that privilege thereafter without his consent.' Association v. Lewis, 1 Colo. App. 127, 27 Pac. Rep. 872; Auld v. Society, 12 App. Cas. 197. Though amendments 'which do not increase his obligations, but provide a different method of withdrawing, are valid' (Hekeln kaemper v. Association, 22 Kan. 549) further say the authors of the text-book just cited. See, also, in this connection, 7 Thomp. Corp. § 8729, and End. Bldg. Assns., § 272.

*

"We find in the second edition of 4 Am. & Eng. Enc. Law, p. 1047, the following statement: 'As to the question whether a by-law granting a right of withdrawal can be altered so as to take away or modify that right, the courts are at variance. It has been held, on the one hand, that such a by-law creates a vested right, and that any attempt to change it will be ineffectual. On the other hand, it has been held that an association having power to change its by-laws may make the alteration in question, as the member holds his membership rights subject to having them modified by the body of which he forms a part.' It is worthy of note that in support of the doctrine that such a by-law creates a vested right' American cases are cited, while English decisions alone are referred to as authority for the counter proposition. In the case of Pepe v. Society (1893), 2 Ch. Div. 311, it appeared that: By one of the rules of the society, a member, on giving one month's notice in writing, might withdraw his shares. The rules also provided that they might be altered by a majority of threefourths of the members. The plaintiff gave the requisite notice of withdrawal; but after such notice, and before he was repaid, the above rule was altered by giving the directors power to pay off in priority members holding less than £50 in the society."Under these facts the court reached the somewhat remarkable conclusion that, although the plaintiff had, at the date of his notice of withdrawal, under the rule then in force, a vested right to be paid the amount due on his shares, he, being still a member of the society, was liable to have this right devested by a subsequent alteration in the rule duly made, and that he was therefore bound by the altered rule.' This decision, and others of like import, seem to have been predicated upon the idea that under the 'Building Societies Act of 1874' 37 & 38 Vict. c. 42, an association chartered thereunder had authority to change its by-laws at any time, even after its members had acquired vested rights in the premises. See Davies v. Society, 61 Law T. (N. S.) 680; Bradbury v. Wild (1893) 1 Ch. Div. 377; Barnard v. Tomson (1894), 1 Ch. Div. 374; Kemp v. Wright (1894), 2 Ch. Div. 462; Botten v. Society (1895), 2 Ch. Div. 441. Tested by our fundamental law, a statute of that character would be clearly unconstitutional. Fisher v. Patton, 134 Mo. 32, 52, 33 S. W. Rẹp. 451, 34 S. W. Rep. 1096. It is undoubtedly true that a corporation may, if it so desires, expressly reserve to itself the right to prescribe from time to time how its business shall be conducted; and one subscribing to stock upon the understanding that such right may be exercised in a legitimate manner cannot be heard to assert that by-laws of force at the time he became a shareholder set forth the terms of his contract with the corporation, and therefore cannot be amended or repealed without his consent. Thornt. & Bl. Bldg. & Loan Assns., § 131, pp. 129, 130; Bogards v. Insurance Co., 79 Mich. 440, 44 N. W. Rep. 856; Supreme Lodge v.

Knight, 117 Ind. 489, 20 N. E. Rep. 479, 3 L. R. A. 409; Supreme Commandery v. Ainsworth, 71 Ala. 437; Bearden v. Association (Tenn. Ch. App.), 49 S. W. Rep. 64. That is to say, an agreement of this nature will be effectual, provided, of course, it does not militate with some special enactment on the subject; such, for example, as a statute which, in effect, declares, as matter of public policy, that the right of a member of a mutual association to withdraw therefrom upon specified terms and conditions is one which cannot legally be waived. 7 Thomp. Corp. § 8729; Latimer v. Investment Co. (C. C.), 81 Fed. Rep. 776."

After discussing these general principles applicable to all corporations, the court proceeds to prove their special application to building and loan associations: It is to be borne in mind that one of the distinguishing characteristics of a mutual building and loan association, as compared with private corporations in general, is that in duly transacting its legitimate business, such an association ordinarily deals exclusively with its members. If, after joining an association of this kind under a contract of membership such as that above indicated, a shareholder desires to procure a loan, the terms and conditions upon which the same shall be made to him must necessarily become the subject-matter of another and distinct contract between him and the association. As a general rule, it is agreed that the loan be made in accordance with then existing by-laws prescribing the terms upon which advances may be made to members upon shares of stock held by them. Accordingly such by-laws are to be regarded as setting forth the terms of this special, contract (Barbot v. Association, 100 Ga. 681, 694, 695, 28 S. E. Rep. 498), a contract which the association would have no right to repudiate at will, or, by a change in its by-laws, subsequently made, to impair or totally destroy. Becker v. Insurance Co., 48 Mich. 610, 12 N. W. Rep. 874. And, if provision be made in the bylaws then of force that the borrower shall be permitted to thereafter withdraw from the association upon compliance with certain specified conditions respecting the repayment of the loan made to him, it is clear that the privilege thus accorded to him by the express terms of his contract immediately becomes one of which he has a vested right to avail himself at his election. We do not mean to say the association would not be at liberty to stipulate with the borrower, as a condition precedent to making him a loan, that, as to the privilege of withdrawal, or as to like privileges then being recorded to its members, it reserved the right to subsequently effect changes in its by-laws. In the absence of any statutory restrictions in regard to the matter, such a stipulation, if assented to by the borrower, would certainly be binding upon him. In any given case the inquiry should be, what was the contract between the parties? That contract, whatever may be its terms, should, if enforced at all, be given

the effect it was intended to have. This doctrine is in accord with good law, good morals, and common justice."

REMARKS OF COUNSEL AS REVER

SIBLE ERROR IN CIVIL CASES.

Introductory.-Success in the trial of a cause is not always measured by the size of the verdict. Frequently counsel whose remarks to the jury have been within the limits of proper argument have greater reason to congratulate their clients and themselves than have they who obtained larger verdicts at the expense of reversible error in speech or conduct. Impropriety of counsel's remarks is one of the common points on which courts of review are asked to reverse judgments. Term after term the question arises, in numerous instances a single volume of reports containing several decisions dealing more or less extensively with the subject. Lawyers and trial judges have been instructed, lectured, reprimanded and rebuked by the appellate court justices who have at times written patiently in this connection on professional ethics, constitutional privileges, Magna Cartar rights and the benefits of jury trials, and again at times disposed of the case with a terse and stern censure. After all these years of admonition and instruction the question still regularly comes to the front. One reason for this is that exact and definite rules cannot be framed relative to trial arguments. The important and valuable privileges of proper rgument cannot legally be denied counsel or his clients, and on the other hand, an abuse of the privileges denies the same or equal rights to others. Many factors, like the character of the suit, the conduct of counsel and witBesses on both sides, and the rulings of the trial court, enter into each case, and must be considered with all its other circumstances, and while, therefore, so long as law its, lawyers and judges differ, no definite rules can be stated by which to determine when counsels' remarks constitute reversible error, and when they do not; still numerous valuable hints and suggestions are to be derived from a careful consideration of the recent decisions on the subject.

What Remarks are Improper.-In a general way it may be stated that the following

remarks in argument are objectionable and improper; statements of facts pertinent to the issue which have not been legally elicited upon the trial of the cause; assumptions arguendo that certain facts are in 'evidence in the case when they are not; comments upon papers that have not been put in evidence, upon the facts of newspaper articles, upon excluded testimony, upon former trial or trials of the case, upon the failure of a certain party to testify or to call a certain witness, and upon facts within the knowledge of counsel, and not sworn to in the case; appeals to sympathy or prejudice foreign to the case, like local or religious prejudice, or prejudice against corporations or trusts; reflections upon the character of parties or witnesses and their conduct and credibility when the same are not in issue, and invective and abuse not justified by the evidence.1 This statement is of necessity not invariably applicable in each particular to every case. What is proper argument in one case might not be in another. For instance, counsel could certainly with propriety use language in a suit for malicious prosecution or libel that would not be proper in an assumpsit suit. It follows that whether or not counsels' remarks are ground for reversal is to be determined ordinarily not so much from the language used as from its occasion, the attendant proceedings and the effect. The controlling considerations in recent cases decided by courts of review are therefore not so much the mere words used, except in flagrant and persistent abuses of privileges, as the conduct of opposing counsel relative to

1 Thompson on Trials, sec. 955, et seq.; Weeks on Attorneys (2d Ed.), p. 248; Hilliard on New Trials (2d Ed.), p. 225; 2 Ency. of Plead. & Prac., p. 741, et seq.; Tucker v. Henniker, 41 N. H. 317; citing Mitchum v. State, 11 Ga. 634; Berry v. State, 10 Ga. 522; Hodgson v. Scarlet, 1 Holt, N. P. C. 621; Cutler v. Dixon, 4 Coke, 146, note a; Waterer v. Freeman, Hobart, 266; Weston v. Dobriet, Cro. Jac. 432; Astley v. Cooper, 2 Burr. 807, 3 Black, Com. 29, 1 Saund. 130; Elliott v. Luengene, 44 N. Y. Supp. 775, and cases cited. Brown v. Swineford, 44 Wis. 292, citing among other cases, State v. Smith, 75 N. Car. 306; Ferguson v. State, 49 Ind. 33; Pringle v. Miller, 111 Mich. 663; citing Rutler v. Collins. 96 Mich. 510; Hitchcock v. Moore, 70 Mich. 112; Hollywood v. Reed, 57 Mich. 234; Donovan v. Richmond, 61 Mich. 467; Blaisdell v. Davis, 72 Vt. 295, 48 Atl. Rep. 14; Wood v. Agostines, 72 Vt. 51, 47 Atl. Rep. 108; Steen v. Friend, 20 Obio Cir. Ct. Rep. 459. These citations could be extended to limits not practicable. The decisions upon the general subject of the article are so numerous that usually only those of recent date have been cited.