regret to believe that the psychology of mind which impelled the profession to single out the recall of judges was a desire, even if sub-conscious only, to exalt the judges to the public, and thereby exalt themselves to the judges. I do not think a very courageous stand was taken in Colorado over the recall of decisions; true the statute permitting it is a dead letter so far, but it is an infernal machine which may be wound up and set to go off at any time and blow up our whole social system! We, as lawyers, confine our Initiative and our Referendum largely to matters of practice. In none of the great movements involving fundamental questions of life and liberty, which have so profoundly stirred our people for the last three-quarters of a century, have we been originators or leaders. We were as complaisant toward slavery and slave-owners as were the clergy; we saw Dred Scott sent back to servitude because it was the law, and we made no effort to change the law, and John Brown's soul went marching on without any accelerating push from the members of the legal profession. Could you get a lawyer's convention, local, state, or national, to declare whether the white slave act should be limited to professional vice or should include occasional and accidental immoralities? Will the profession, as a body, through its official organizations, take a stand against the subversion of fundamental liberties which will inevitably result from proposed engraftments on present sumptuary legislation? Will it fearlessly. proclaim that toleration of er post facto laws on one subject, will certainly lead to the enactment and upholding of the same kind of laws on other subjects? Will it boldly point out that the weakening of the guarantees against search and seizure tends to undermine one of the most sacred foundations upon which free government is builded and sets a precedent for future tyrants to use against human liberty? I regret to say that when it comes to ques tions of this kind we are often moral cowards, whether on or off the bench. The aspiration for a higher place in public confidence and public esteem must be turned into an aspiration to accomplish greater public good and render greater public service; whether what we wish for is something to be gained or regained, the accomplishment must depend on courage. Shall we lag or lead? Shall we point out the dangers as they are disclosed and apply the remedies as they are called for, or shall we devote our attention to fee-taking and the forms of writs? Shall we be guardians of the temple of Liberty, protecting it from all insidious hostile approaches, or shall we be mere alms-seekers upon the steps? Denver, Colo. T. J. O'DONNELL. "A GENTLEMANLY MENDACIOUS" nesses. WITNESS. In Robbins on American Advocacy, a very interesting and instructive work, is a classification of different kinds of witThere is the lying witness, the dogged witness and the cunning witness. There is also the stupid witness, well known to the legal profession, a person well meaning, endeavoring to be honest, but blunders for want of sense, and there are other witnesses too numerous to tabulate. Perhaps the best known division is that of a pessimistic judge, who announced that in his opinion there were only three classes of witnesses: "Liars, damn liars and expert witnesses." The Supreme Court of Washington, as will appear later, has recently added another class of witnesses, whereof the above title is descriptive. King David declared: "I said in my haste all men are liars," but there is no evidence that he changed his views after mature reflection. From time immemorial the problem of how to arrive at the truth; that is, the real unbiased facts of a controversy, has engaged jurists and philosophers; no one has yet offered a solution or devised a method by which oral testimony can reproduce to the court or jury the exact facts of a transaction; what was said or done by the parties, or of the situation and surroundings of the subject matter involved. Much depends upon the inflection of the voice and the facial expressions of a person. In a case where a barrister sued for slander because the defendant had said of and concerning the plaintiff: "He is an honest lawyer," the judge remarked that such an expression appeared to be highly complimentary and not slanderous. The plaintiff rejoined: "Your lordship should have heard the emphasis put upon the word 'honest,' and you would think differently." Many a snapshot from a camera has prevented endless bickerings in court and established definitely what otherwise would have been left in obscurity. The ingenuity of man to distort the truth may, however, apply to a photograph and instead of representing a true picture it may be an artificial deception, as was said in Cunningham v. Fairhaven Ry. Co.,1 "through intentional and skillful manipulations, a photograph may not only be inaccurate, but dangerously misleading." In Geer v. Missouri Lumber Co. it was held that a "photolithographic" copy of a signature could not be received in evidence as an exact reproduction of the original because "the perfection of the photograph depends upon many circumstances and conditions, such as the skill of the operator, the correctness of the lenses, the purity of the chemicals, the accuracy of the focussing and the angle at which the original to be copied was inclined to the sensitive plate." It, therefore, follows that a photograph may show the exact condition of things or give an ac (1) 43 Atl. 1049, Conn. (2) 34 S. W. 1099, Mo. curate picture of a person, object or location, if the work is skillfully and honestly done. Paraphrasing a well-known expression about figures, one may say that photographs will not lie, but liars will make photographs. The courts are in conflict as to photographs being used to determine the genuineness of a signature by comparison. Of course, if the original writing is produced photographic enlargements may be offered in evidence. When photography was first introduced as a means of evidence in court does not appear from the reports, but J. G. Holland, in his novel "Seven Oaks," page 404, published in 1875, described a sensational method of illustrating a forgery case by the use of lantern slides upon the walls of a court house, which appears to have occurred in a trial. The older books refer to ambrotypes and daguerreotypes. In later days the Roentgen or X-Ray has certainly been of the greatest service in determining facts not visible to the eye, as the fracture or decay of a bone; the defective structure of steel, or the condition of the body in cases of malpractice in dentistry or surgery. tistry or surgery. Evidence obtained by this invention was at first considered unreliable, but the law, as usual, caught up slowly with the progress of science, and now approves of "X-ray photographs, sciagraphs or radiographs" and they are admissible in evidence as photographs of the interior of things.5 As the purpose of a trial is to determine what the actual facts in issue may be, courts have quite readily availed themselves of every new invention, process or discovery. in their quest for truth. Even the photograph has done duty in court. The first case appears to have been Boyne City Ry. Co. v. Anderson, where there was a controversy over the amount of damages to be allowed in the condemnation of property. A phonograph was used to reproduce to the jury the noise caused by the moving of trains near a hotel. The dictagraph is the most modern invention to reproduce actual conversations. In State v. Minneapolis Milk Co. a detective was a stenographer and made shorthand notes of things heard over the dictagraph. These notes were received in evidence, the court holding it was for the jury to pass upon their value as proof. This case was decided December 12, 1913. Since then People v. Eng Hings was reported where "two stenographers were stationed in a room with the receiving end of the dictagraph," and such testimony held admissible. In Commonwealth v. Wakelin, stenographic notes of conversations heard by means of a dictagraph were admitted as evidence. The jury were instructed to determine what weight should be given such testimony. Other rulings on the dictagraph are found in 91 Misc. Reports (N. Y.) 107 and Andrews v. State.10 The latter appears to be the first case on record where the dictagraph is referred to as a means of securing evidence. In fact, K. M. Turner, who claimed to be the inventor, testified in court as to its construction and "an autoptic profference of the scientific principle involved in the dictagraph was explained to the jury," according to the report. These decisions comprise all there is to be found on the subject in the reported jury in determining disputed facts in litigation.12 Of course, before they can be admitted preliminary evidence should be given to show the correctness of the representation or instrument, which is for the determination of the trial judge and not subject to review. 13 We have thus enumerated modern instrumentalities recognized by law for the ascertainment of truth. All these, however, may be circumvented if witnesses really plan to deceive. No doubt, most witnesses endeavor to testify honestly and correctly, but at times a statement may be literally true and yet dishonest. Recently there was a cartoon in the daily papers of Mutt and Jeff. As usual these jolly vagabonds were playing their pranks. So Jeff sent a message to Mutt that he, Jeff, had just fallen from a sixty-foot ladder. Mutt was greatly shocked by the sad news expecting to find his pal crushed and bleeding, when it developed that Jeff had only fallen off the lowest rung of the ladder. Another celebrated instance may be cited from Don Quixote, chap. XLV. Sancho Panza became a judge before whom a man complained that he had loaned a friend "ten gold crowns" that had not been repaid. The creditor asked that the debtor be sworn and if he on oath stated that he repaid it the lender would be satisfied. The borrower then consented to be sworn and requested that the plaintiff hold the defendant's cane. He admitted that "the other had lent him ten crowns, but that he had really returned the same sum into his own hands." This satisfied the claimant, but not Sancho for he "studied awhile with his head leaning over his stomach, and his forefinger on his nose," and decided that the cane should be given the plaintiff in discharge of the debt. This surprised everybody, but when the cane was broken there dropped out the ten crowns. (12) (13) Mass. The Jones on Evidence, Section 411. Commonwealth v. Morgan, 34 N. E. 458, 1891.14 The Prince of Wales, later Edward VII, was called as a witness. His statements might have reflected seriously upon the character of a titled lady. At the conclusion of his testimony his Lordship remarked to a friend by his side: "The Prince testified like a gentleman." There may be persons who would state the literal truth, if under oath, no matter who might be concerned, or whom it might affect, but, after all, there is a limit beyond which the community would not justify a witness to go; it may be better that a cause be lost than to debauch public morals or outrage a sentiment of common decency. oath was literally true, yet false in fact, instance in modern times occurred in a trial as such testimony would be generally un-known as The Tranby Croft baccarat case derstood. When this was demonstrated before Lord Chief Justice Coleridge in Sancho shrewdly observed "that he has a headpiece fit to govern a whole kingdom." | Nor is it always safe for counsel to be too truthful of his own views about his case, or client. It is related that Charles Phillips, an eminent Irish lawyer, defended an elderly lady of great wealth, in a breach of promise case. She had agreed to marry a much younger man than herself, but as she was extremely homely, Phillips argued to the jury that plaintiff entered into the marriage contract for purely mercenary purposes. He, therefore, stated that as his client was such a very homely old woman, the young man after her money, and cared otherwise nothing about her. The jury found for the defendant. This appeared to be a great triumph for counsel, but not to his client. As soon as Phillips emerged from the court room she beat him with her umbrella and berated him fiercely; for, said she: "I would much rather have lost the case than to have you tell the public that I am an ugly looking old woman." was Witnesses, however, may honestly believe that they are telling the truth, but by reason of bias, defective observation or inability to express themselves clearly, or for lack of judgment as to distance or faulty vision, may be mistaken or their testimony may be misleading and unreliable. Absolute verity cannot be expected and it is unattainable when witnesses testify from memory or observation. Pope's lines are in point: "To observation which ourselves we make, 'We grow more partial for the observer's sake." There is one class of testimony that seems to be an exception. Whenever the character or reputation of a woman is involved, men instinctively try to shield her, and this meets, generally speaking, with public approval. Perhaps the most noted It was no doubt with a view to public policy that the Supreme Court of Washington, in Bundy v. Dickinson,15 sustained a verdict for $30,000.00 damages for breach of promise to marry, scoring the defendant, thus: "He denied that love impelled them to seek the society of each other, and instead of being gentlemanly mendacious or discreetly silent when a woman's reputation. was at stake, he, with surprising effrontery, testified that they were incited solely by his concupiscence and mutually agreed that marriage was not to be considered by them." Here is a judicial declaration that a man should regard the good name of womankind as sacred, and that he is not justified, for the sake of adhering to the literal truth as a witness, to degrade womanhood. From the foregoing we may draw this conclusion: that truth is a relative term: all that can be expected of a witness is that he be candid in his statements, and that he testify in good faith, based upon common INFANCY-DISAFFIRMANCE OF CON TRACT. MCGUCKIAN v. CARPENTER. Supreme Court of Rhode Island. June 24, 1920. 110 Atl. 402. When an executed contract is not one for his necessaries, an infant should be permitted to disaffirm it and recover the consideration moving from him, and should be required to return the consideration that remains in his hands; but, if he has dissipated the consideration and cannot restore it, he should nevertheless be permitted to disaffirm and recover the consideration. SWEETLAND, C. J. The first of the aboveentitled cases is an action in assumpsit to recover the amount due upon certain promissory notes given by the defendant, a minor, to the plaintiff in part payment upon the sale by the plaintiff to the defendant of a horse, wagon, and harness. The second of the above-entitled cases is an action in assumpsit to recover the sum paid in cash by the infant plaintiff in part payment for said horse, wagon, and harness. The cases were tried together before a justice of the superior court, sitting with a jury, and resulted in each case in a verdict for said minor, Arthur H. Carpenter. Hugh McGuckian filed his motion for a new trial in each case, and each motion was denied by said justice. Each case is before us upon the exception of McGuckian to the decision of the justice denying the motion for new trial, and also upon certain exceptions take by said McGuckian to rulings of said justice made in the course of the trial. At the trial McGuckian did not question the infancy of Carpenter at the time of the sale of said horse, wagon, and harness, but claimed that in the circumstances of the case said chattels were necessaries for said infant. It appeared in evidence that Carpenter at the time of the purchase by him of the horse, wagon, and harness was 18 years of age, married, with one child; that he maintained a home and was dependent upon his weekly wages for the support of himself and family; that he used said chattels for the sole purpose of pleasure driving. The question of whether said chattels were necessaries in the plaintiff's condition and station in life was submitted by said justice to the jury with instructions that, if they found that said chattels were not neces saries they should find their verdict in favor of said infant in the action against him upon the promissory notes given by him in part payment for said chattels. The jury's verdict for the defendant in that case indicates that they found that said horse, wagon, and harness were not necessaries in the circumstances of the defendant's life. The verdict has been approved by said justice, and we find no ground for disturb ing his decision in that regard. The purchase was manifestly an unwise and indiscreet transaction on the part of the defendant quite in accord with the thoughtlessness and improvidence ascribed to youth. At the time of the avoidance of the contract of sale by the minor and the commencement of the action to recover the amount of cash given by him in part payment, he did not return said chattels nor any part of them to McGuckian, nor has he done so subsequently. Prior to said disaffirmance Carpenter had sold the wagon and harness, and the horse had become so emaciated and disabled either by disease or neglect that in the judgment of the agent of the Society for Prevention of Cruelty to Animals it ought to be shot. From the evidence it is not entirely clear what has become of the horse, but it is manifest that it had become worthless and had passed out of the possession of Carpenter be fore the commencement of these actions. In the suit against McGuckian to recover the cash paid on the purchase price the defendant takes the position that, as Carpenter has not returned the property, he ought not to be permitted to disaffirm the sale and obtain a return of the money paid. This claim was the basis of a motion, made at the close of the evidence in the case against McGuckian, that said justice should direct a verdict for the defendant. That motion was denied by said justice, and the defendant excepted. He also excepted to that portion of the charge of said justice in which he instructed the jury "that, if Carpenter had disposed of the chattels which came to him or if they were not in his possession or control, it would not be necessary for him to restore them to McGuckian before he could maintain the action." In support of these exceptions before us counsel for McGuckian has called to our attention the opinion of courts in some jurisdictions that in all cases an infant, on his avoidance of an executed contract, must return the property or consideration received before he can maintain his action for the money or property which he gave in the transaction, and, if he has disposed of the money or goods or has so misused them that he cannot restore them, then he cannot be permitted to disaffirm his con |