became due on February 5th, and March 12th, 1851, the defense was that they were accepted by the defendant while an infant. It was proved that the defendant came of age March 11th, 1851. Held, that the presumption was that all the bills were accepted before he attained his majority.(2)

2. It was alleged in a bill for relief that a certain agreement was in writing. The presumption is that it was signed.(3)

3. A. and B. are proved to be carrying on business in partnership. The presumption is that they are inter

ested in equal shares.(4)

In case 1 Jervis, C. J., said: "There is nothing on the face of the bill to show when it was accepted. Why then is it that this evidence is sufficient? It is because it must be presumed that the bill has been accepted during its currency, and consequently before the commencement of the action; because it is the usual course of business to present bills for acceptance before the time for the payment of them has run out, and within a usual time after the drawing of them. * ** I decide this case upon this broad ground-that we are to presume, unless the contrary is shown that a bill of exchange has been accepted, not on the day of its date, but within a reasonable time afterward. It is not to be presumed that the acceptance took place after the maturity of the bill. That view disposes of the case as to all these bills-as to five of them because they became due before the defendant attained the age of twenty-one, and as to the sixth, because a reasonable time for its acceptance had elapsed before the defendant's majority." And Maule, J., added: "Although it is not usual to accept a bill on the day on which it is drawn, it is usual to do so at some early opportunity after that day. Therefore where the drawer and acceptor are both living in the same town, the presumption is that the bill is accepted shortly-within a few days after it is drawn; it being manifestly the interest of the drawer to have a negotiable instrument made perfect as early as conveniently may be. The date of the bill therefore, though not evidence of the very date of the acceptance, is reasonable evidence of the acceptance having taken place within a short time after that day, regard being had to the distance the bill would have to travel from the one party to the other. Upon the same principle upon which that presumption rests, it may be presumed in this case that the bills were accepted before they arrived at maturity."

"Where a partnership," said Parke, B., "is found to exist between two persons, but no evidence is given to show in what proportions the parties are interested, it is to be presumed that they are interested in equal moieties."

So there is a presumption against the validity of a claim which has long lain dormant.(5) So non-user of a patent amounts to a very strong presumption as to the invention not being useful."(6)

RULE II. An agreement to pay for services rendered and accepted is presumed (a) unless the parties are members of the same family or near relatives (b).

ILLUSTRATIONS. (A.)

1. It is proved that medical services were rendered by A., a physician to B., deceased. The law presumes a promise by B. to pay for them.(7)

(2) Roberts v. Bethell, 12 C. B. 779 (1852).

(3) Rest v. Hobson, 1 Sim. & Stu. 543 (1824).

(4) Farrar v. Beswick, 1 Moo. & R. 527 (1836).

(5) D. T. v. D. L. R., 1 P. & D. 127 (1867); Sibbering v. Earl of Balcarras, 3 DeG. & Sm. 735 (1850).

(6) In re Bakewell's Patent, 15 Moore P. C. 385 (1862).

(7) In re Scott, 1 Redf. (N. Y.) 234 (1847), and see Burr v. Williams, 23 Ark. 244 (1861), as to goods furnished.

In case 1 it was said: "As regards the debt of the executor against the estate, which is for medical service and attendance, it is satisfactorily proved that he was the family physician of the testator; that he, as such, attended him for several years, for which he had not received any pay. These services being valuable, the law presumes a promise to pay. It is competent however for the opposing party to show that the services were rendered gratuitously."

(B.)

1. On the marriage of A. to B., the former went to live with B.'s father by invitation, without any agreement as to payment of board for himself and wife. There is no presumption that he agreed to pay board. (8)

2. A step-father assumes the parental relation toward B., an infant, the child of his wife by a former husband. On the other hand B. renders services to the step-father to a value in excess of his board and education. There is no presumption of a promise to pay for such services.(9)

3. The brother of A. after A.'s death presented a claim for services for a period of five years. During this time he was boarded and clothed by A. There was no presumption of an agreement to pay him for these services. (10)

4. A. and his wife boarded and lodged in the house of B., the brother of A., and assisted him in carrying on his business. There is no presumption that either the services on the one hand or the board and lodging on the other were to be paid for.(11)

5. L. was the mother of K.'s wife and lived with them for ten years. There is no presumption of an agreement by her to pay for board, etc., during this time.(12)

6. B. being out of employment went to live with C., and while there performed certain services for C. B.'s mother and C.'s wife were cousins. The law implied an agreement to pay the value of such services. (13)

In case 2 it was said: "Under certain circumstances where one man labors for another a presumption of fact will arise that the person for whom he labors is to pay him the value of his services. It is a conclusion to which the mind readily comes from a knowledge of the circumstances of the particular case, and the ordinary dealings between man and man. But where the services are rendered between members of the same family no such presumption will arise. We find other motives than the desire of gain which may prompt the exchange of mutual benefits between them, and hence no right of action will accrue to either party, although the services or benefits received may be very valuable." In case 5 it was said: "The law takes notice very properly of the customs of hospitality and friendly intercourse usual among mankind. This is it seems to us the basis of the distinction between cases where the parties are not related by such ties, and those where they are so related. The counsel concedes that if the deceased had been K.'s mother instead of the mother of his wife, the law of the case would have been so. We perceive nothing to warrant a distinction between the case put and the one before us." In case 6 it was said: "Ordinarily where services are rendered by one person for another without any

(8) Wilcox v. Wilcox, 48 Barb. 327 (1867).

(9) Williams v. Hutchinson, 3 N. Y. 312 (1850); Andrus v. Foster, 17 Vt. 556 (1845).

(10) Bowen v. Bowen, 2 Bradf. 336 (1853); Robinson v. Cushman, 2 Denio, 149; Fitch v. Peckham, 16 Vt. 150 (1844); Weir v. Weir, 3 B. Mon. 645 (1843).

(li) Davies v. Davies, 9 C. & P. 87 (1839).

(12) King v. Kelly, 28 Ind. 89 (1867); Cauble v. Ryan, 26 id. 207.

(13) Gallagher v. Vaught, 8 Hun, 87 (1876).

agreement in respect to compensation, the law will imply an agreement to pay what the services are fairly worth. There is however a well recognized exception to this general rule in respect to services rendered by near relatives and members of the same family, on the ground that the law regards such services as acts of gratuitous kindness and affection. * * *The defendant's wife and the plaintiff's mother are cousins. *** They were not therefore related at all, except by affinity, and we think such relationship not sufficiently near to place the parties within the exception. We have been unable to find any reported case that carries the doctrine to that extent. In fact although the elementary writers seem to lay down the exception as broadly as it is stated above, yet all the reported cases confine it to cases of claims between members of the same family, and the courts refuse to imply a promise by reason of the existence of the family relation. ✶ ✶ We do not think that the relation between the parties to this action was such as would prevent the law from implying an agreement to pay for services rendered."

*

SUB-RULE II. Negotiable paper is presumed to have been regularly negotiated, and to be or to have been regularly held (14) (a.), except where it was procured or put in circulation through fraud or duress or is illegal (b).

ILLUSTRATIONS.

(A.)

1. A. is the holder of a promissory note. The presumption is that he is a bona fide holder for value received. (15)

2. In an action on a promissory note by the holder

(14) The legal presumption is that every promissory note was given in the course of business and for value and that it is to be paid by the maker as the primary debtor. Bank of Orleans v. Barry, 1 Denio, 116 (1845), Miller v. McIntyre, 9 Ala. 638 (1846); Dickerson v. Burke, 25 Ga. 225 (1858). "The presumption is that a note is of the value of the sum promised thereby to be pald." Loomis v. Mowry, 8 Hun, 311 (1876); Woodworth v. Huntoon, 40 Ill. 131 (1865); Curtiss v. Martin, 20 id. 557 (1858), Kelley v Ford. 4 Ia. 140; Trustees v. Hill, 12 id. 462; Wilkinson v. Sargent, 9 id. 521; Lathrop v. Donaldson, 22 id. 235 (1867); Canal Bk. v. Templeton, 20 La. Ann. 141 (1868); Scott v. Williamson, 24 Me. 343 (1844); Burnham v. Webster, 19 id 232 (1841); Earbee v Wolfe, 9 Port. 366 (1839); Cook v. Helms, 5 Wis. 107 (1856). But where fraud or illegality or duress is shown in its inception, the burden is on the holder to show regularity. Bailey v. Bidwell, 13 M. & W 76; Harvey v. Towers, 6 Ga. 660; Fitch v. Jones, 5 El. & B. 238; Catlin v. Hansen, 1 Duer, 323; Gwin v. Lee, 1 Md. Ch. 445: Munro v. Cooper, 5 Pick. 412; Sistermans v Field, 9 Gray, 332 (1857); Tucker v. Morrill, 1 Allen, 528 (1861); Beltzhover v. Blackstock, 3 Watts 26; Vallet v. Parker, 6 Wend. 615; Bissell v. Morgan, 11 Cush. 198 (1853); Perrin v. Noyes, 39 Me. 384 (1855); Ellicott v. Martin, 6 Md. 509 (1854); Paton v. Coit, 5 Mich. 505 (1858); Clark v. Pease, 41 N. H. 414; Garland v. Lane, 46 id. 245; Perkins v. Prout, 47 'id. 389 (1867). In Alabama want of consideration like fraud casts the burden on the holder. Wallace v. Bank, 1 Ala. 567; Marston v. Forward, 5 id. 347; Thompson v. Armstrong, 7 id. 256; Boyd v. McIver, 11 id. 822 (1847); Ross v. Dunham, 35 id. 434 (1860). But the English rule is that where there is no fraud nor any suspicion of fraud, but the simple fact is that the defendant received no consideration for his acceptance, the plaintiff is not called upon to prove that he gave value for the bill." aker v. Edmunds, 1 M. & R., 1 Ad. & Ell. 638, overruling. Thomas v. Newton, 2 C. & P. 606, and Heath v. Sanson, 2 B. & Ad 201. And see Robinson v. Reynolds, 2 Q. B. 634; Bailey v. Bid well, 13 M. & W. 72; Berry v. Alderman, 14 C. B. 95; Smith v. Brame, 16 Q. B. 244. And the same rule is followed in most of the States. Holme v. Karsper, 5 Binney. 465, Knight v. Pugh, 4 W. & S. 445; Morton v. Rogers, 14 Wend. 576; Rogers v. Morton, 12 id. 484; Vather v. Zane, 6 Gratt. 246; Wilson v. Lazier, 11 Gratt. 477; Tucker v. Morrill, 1 Allen, 528 (1861).

(15) Goodman v. Simonds, 20 How. 343 (1857).

Whit

against the indorser, it was not alleged that the plaintiff was a holder for value. This is presumed.(16)

3. An action is brought on a negotiable promissory note indorsed to the payee in blank. The defense is failure of consideration. The presumption is that it was transferred to the plaintiff on the day of its date. (17)

4. A note is indorsed without date. The presumption is that the indorsement was made before the note became due.(18)

"The law was thus framed and has been so administered," it was said in case 1, "in order to encourage the free circulation of negotiable paper by giving confidence and security to those who receive it for value; and this principle is so comprehensive in respect to bills of exchange and promissory notes which pass by delivery, that the title and possession are considered as one and inseparable, and in absence of any explanation, the law presumes that a party in possession holds the instrument for value until the contrary is made to appear, and the burden of proof is on the party attempting to impeach the title. These principles are certainly in accordance with the general current of authorities and are believed to correspond with the general understanding of those engaged in mercantile pursuits." In case 2 it was said: "It does not expressly appear in the declaration that the indorsees are holders for value. Value is implied in every acceptance and indorsement of a bill or note. The burden of proof rests upon he other party to rebut the presumption of validity and value which the law raises for the protection and support of negotiable paper." In case 3 it was said: "In Park in v. Moore, 7 C. & P. 408, it was held by Baron Alderson that the burden of proving that the note was indorsed after it was overdue was upon the defendant, where he sought to defend by showing such facts as would constitute a good defense to a dishonored note, and this ruling, being submitted to the other judges, was confirmed by them. It may be that under the more precisely accurate use of the term "burden of proof" as now held by the court, it would have been more correct to say that upon the production by the holder of a negotiable promissory note, indorsed in blank, the legal presumption is that it was indorsed at its date, and it is incumbent on the defendants to overcome that presumption by evidence. This must have been so understood in the present case, as the plaintiff had already produced a note thus indorsed, and the question was upon the effect of the testimony offered to show that it was indorsed after overdue. Upon such a state of the case, it was the duty of the defendants to offer sufficient evidence to control the legal presumption arising from the indorsement of the note. In this sense the burden was upon the defendants."

(B.)

1. In an action on a bill of exchange by an indorsee against the acceptor, there was evidence that the bill had been procured by a fraud on the defendant. This (16) Clark v. Schneider, 17 Mo. 295 (1852).

(17) Noxon v. De Wolf, 10 Gray, 343 (1858). In Ranger v. Cary, 1 Metc. 369, it was said. "A negotiable note being offered in evidence duly indorsed, the legal presumption is that such indorsement was made at the date of the note or at least antecedently to its becoming due; and if the defendant would avail himself of any defense that would be open to him only in case the note was negotiated after it was dishonored. it is incumbent on him to show that the indorsement was in fact made after the note was overdue." Stevens v. Bruce, 21 Pick. 193; Webster v. Lee, 5 Mass. 534; Hendricks v. Judah, 1 Johns. 319.

(18) Mobley v. Ryan, 14 Ill. 51 (1852); Pettis v. Westlake, 3 Scam. 535; Walker v. Davis, 33 Me. 516 (1851); McDowell v. Goldsmith, 6 Md. [319 (1854); Hopkins v. Kent, 17 id. 117 (1860).

cast the burden of proving that he paid value for it on the plaintiff. (19)

2. In answer to an action on a promissory note the defendant pleads that it was illegal in its inception and that the plaintiff took it without value. The illegality is proved. The burden is cast on the plaintiff to show value.(20)

3. A check on a bank was given by S. to C., for a gaming debt. It was transferred to F., who brought suit on it against S. The burden was upon F. to prove that he took it bona fide and for value.(21)

"When," it was said in case 1, "the drawer or acceptor of a bill of exchange has proved that it was procured by fraud * * * the presumption that the indorsee paid value is overcome, and it is incumbent upon him to prove that fact before he can claim the protection which is vouchsafed by the law to a purchaser for value without notice." In case 2 Baron Parke said: It certainly has been the universal understanding that if the note were proved to have been obtained by fraud or affected by illegality, that afforded a presumption that the person who had been guilty of the illegality would dispose of it, and would place it in the hands of another person to sue upon it; and that such proof casts upon the plaintiff the burden of showing that he was a bona fide indorsee for value." "With clerks," it was said in case 3, “as with promissory notes, the presumption is that they are given upon a valid consideration, but this presumption being rebutted, the necessity is thrown upon the holder of proving that he received it in good faith, without notice of the illegality of the consideration."

A note payable one day after date, it is held in Georgia, is not entitled to this presumption." The presumption "it was said' assumes that the onus lies on the defendant to show that the plaintiff took the note after its maturity. Ordinarily, that is when the note has some time to run from execution to maturity, this is true; but we do not think that principle applies to notes like this due one day after date; for the time run is so short that it is not probable that it should be put in circulation before maturity, at least not sufficiently so to raise such a presumption of the holder. Notes given due and payable at the time of their execution or at one day after date, do not belong to that class of paper intended for registration and circulation for commercial purposes, in which all the presumptions are in favor of the holder in order to protect innocent purchasers and to encourage and foster their circulation; but they are given more as an evidence of indebtedness by the maker to the pavee." Beall v. Leaverett, 32 Ga. 105 (1861).

ST. LOUIS, Mo.

WE

JOHN D. LAWSON.

CRIMINAL LAW REFORM.

HEN in old and settled communities, where people are generally quiet and law-abiding, resort is had to lynch law to secure the punishment of criminals, as has been the case in several instances in the States of Iowa, Illinois, Indiana and Ohio in the last year or so, such may be taken as an indication that 66 something is rotten in the State of Denmark." The crimes committed by the persons who were thus suinmarily disposed of by "the country' were of such a flagrant and atrocious character, the certainty of their commissiou by the men who fell victims to the popular wrath so absolute, the proof so abundant, that if (19) Ross v. Drinkard, 35 Ala. 434 (1860); Boyd v. McIver, 11 id. 822 (1847).

(20) Bailey v. Bidwell, 13 M. & W. 74 (1844). (21) Fuller v. Hutchins, 10 Cal. 523 (1858).

our laws and courts enjoyed the confidence of the people, the citizens who took the law into their own hands would have refrained from doing so, though incensed at the crimes and criminals, knowing that the offenders would soon get their deserts in the due course of the administration of justice. The fact that they did not await the ordinary course of law, indicates that the confidence in proper results was absent.

Let us inquire whether the condition of our laws is really such as to justify such popular distrust, and if so, then what the possible remedies are.

As the heart of every good and honest man revolts against the commission of crime, so there seems to be a general disinclination to believe another has committed a crime. From this arises not only the presumption of innocence, with which the law surrounds every person charged with an offense during the investigation into the same, but also an inclination in the mind of the average jury man to rather believe in the innocence of a man than in his guilt, frequently even in disregard of the evidence offered, or even if convinced of guilt, then at least to make the punishment light. It is a kind of sentimentalism, which of course the counsel for the defense try their utmost to kindle and turn to the advantage of their client.

A most importaut point in favor of the defendant, and which has "let out" many a criminal, is the necessity of "proof beyond a reasonable doubt" upon all the material issues in the case to convict, which is urged upon the jury by the court, and harped upon by the prisoner's counsel.

Then there is the case with which changes of venue can be obtained from the county where the offense was committed to another one, necessarily incident to which is delay of the trial, and vexation and discouragement of the parties interested in the prosecution and their witnesses. In Indiana for ininstance, such change of venue can be had, where it is shown that the citizens of even a part of the county are excited or prejudiced against the defendant (§ 1769 Rev. Stat.), although it might be possible to obtain a hundred jurymen from other portions of the county who knew nothing of parties or subject-matter of the prosecution.

Again there are continuances which the defendant can obtain on many grounds, principal of which is the absence of witnesses, who may exist only in the prisoner's imagination.

Then there is the further circumstance that the inquiry must be confined to the one case at issue, that the prisoner's antecedents cannot be shown in evidence, that even if he has led a life of crime, when he enters the court to be tried for the last one of the series, the law throws around him a cloak of angelio purity and innocence, covering even "a multitude of sins."

Then there is the case with which the prisoner can procure the testimony of his associates in crime in his behalf, which will manufacture circumstances of selfdefense, e. g., in murder cases, and which if sufficient to raise a reasonable doubt in behalf of the accused, is sufficient to acquit him.

Then we have that "very present help in time of trouble," the handy last resort for the prisoner, the "insanity dodge," which might be called the "safe cure "of the doctors of the criminal law, applied in all close cases, and which actually effects what it is advertised for, it being sufficient to acquit, under the decisions of many of our highest courts, if the evidence raises a reasonable doubt of the sanity of the defendant.

Last but not least, we have reversals by the Appellate Courts of convictions for some technical defect in pleading a practice.

All these are matters permitted under the present