does not appear in the description of the act denounced as an offense, and it is not necessary for the state to so allege. If it becomes an issue on the trial, lack of knowledge on the part of a defendant that he had injured someone would excuse him and be a defense to a prosecution under the article in question. The trial judge recognized this as the law, and submitted that issue to the jury.

Believing the article of the statute should be upheld as construed in this opinion, the judgment of the trial court is affirmed.

NOTE-Validity and Construction of Statute Requiring Motorist Striking a Person to Render Assistance.-Statutes have been held valid which require the driver or owner of an automobile, in case its operation causes injury to person or roperty, to stop and give his name and addres nd other information, to the person injured in erson or property, or to some other suitable per son, and to render assistance to the injured Woods v. State, 15 Ala. App. 251, 73 So. 129; People v. Fodera, 33 Cal. App. 8, 164 Pac. 22, rehearing denied by Supreme Court; People v. Finley, 27 Cal. App. 291, 149 Pac. 779; State v. Sterrin, 78 N. H. 220, 98 Atl. 482.

A statute which makes it a crime for the driver of a motor vehicle, or of any other vehicle, and the person, if any, therein having control over the driver, in case of a collision with any person or vehicle, to refuse to stop and render to the person struck, or to the occupants of the vehicle collided with, all necessary assistance, and to give such injured person or persons the number of his vehicle, his name and address, and the name of the owner of such vehicle, is not violative of the constitutional provision that "no person shall be compelled, in any criminal case, to be a witness against himself." Woods v. State, 15 Ala. App. 251, 73 So. 129; People v. Diller, 24 Cal. App. 799, 142 Pac. 797; Ex parte Kneedler, 243 Mo. 632, 147 S. W. 983, Ann. Cas. 1913C 923.

"In each of these cases it is pointed out that the operation of an automobile upon the public highways is not a right, but only a privilege which the state may grant or withhold at pleasure, and that what the state may withhold it may grant upon condition. One condition imposed is that the operator must, in case of accident, furnish the demanded information. This condition is binding upon all who accept the privilege. The defendant also claims that the statute is unconstitutional, in that it requires him to furnish evidence which might be used against him in a criminal proceeding. Bill of Rights, art. 15. The same question has been raised in other states, and in each the conclusion has been reached that the statute is valid." State v. Sterrin, 78 N. H. 220, 98 Atl. 482 (1916).

Further, see Berry, Automobiles (3d ed.), secs. 57, 1601.

ITEMS OF PROFESSIONAL

INTEREST.

THE PROPER PROCEDURE UNDER EQUITY RULE 29 TO TEST AUTHORITY OF ATTORNEY TO REPRESENT PLAINTIFF.

Rule 29 of the new Federal Equity Rules, promulgated by the United States Supreme Court at the October term, 1912, reads as follows:

"Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered."

This rule is almost identical with Equity Rule 32 of the Supreme Court of the District of Columbia adopted in 1909. The question which this paper will discuss is whether under the above rules the motion to dismiss is a proper proceeding to test the authority of an attorney representing the plaintiff. A brief analysis of Rule 29 will enable us to settle the question more readily. By the effect of this rule:

(1) Demurrers are abolished. abolished.

Pleas are

(2) Defense in point of law arising upon the face of the bill heretofore made by demurrer or plea shall be made by (a) Motion to dismiss, or (b) In the answer.

(3) Defenses heretofore presentable by (a) Plea in bar, (b) Plea in abatement, shall be made in the answer. (Discretion of court to hear separately.)

(4) Motions to dismiss may be set down for hearing.

From the above analysis it is clear that if it were possible before the rule was adopted, either by a plea in bar or by a plea in abatement, to raise the question of the authority of the attorney to represent his client in a suit, then that question should be raised by the

defendant in his answer. If, on the other hand, before the adoption of the rule, the question could not have been raised in a demurrer, then it now may be taken advantage of either in a motion to dismiss or in the answer. It becomes necessary, therefore, to ascertain by what method, previous to the adoption of Equity Rule 29, the authority of counsel to institute a suit might be questioned.

Since attorneys are officers of the court, there is a firmly established presumption in favor of an attorney's authority to act for any client he professes to represent, and, therefore, ordinarily it is unnecessary for an attorney to show his authority. But, on account of the relation of the court to its attorneys, who are its officers, and the power which it has over them, it can, if the facts submitted warrant it, call upon a plaintiff's attorney in any suit to show his authority.2 And so it has been held that either party to a suit may question an attorney's right to appear.3

However, as the objection to an attorney's authority to appear is of a dilatory character, such objection must be made at the first opportunity.4 It has been held that after answer had been filed and the case called for trial, it was too late for defendant to demand that the plaintiff's counsel produce his authority for appearing. Sed quaere.

When we come to ascertain the methods employed in raising the question of an attorney's authority to represent his alleged client, it has been held that such a question cannot be raised by demurrer to the complaint." Nor can it be presented in a plea, or raised collaterally or in the answer. The proper method is set out by Delaney, District Judge, de

(1)

6 C. J. 635, 4 Cyc. 928, and cases cited. (2) New York City and County Com'rs v. Purdy, 36 Bard. 266; Hollins v. St. Louis & C. R. Co., 57 Hun 139, 11 N. Y. Supp. 27, 25 Abb. N. C. 93; Vincent v. Vanderbilt, 10 How. Prac. 324, 1 bb Prac 193 Ninety-Nin Plaintiffs v. Fame, 11 N. Y. Super Ct. (4 Duer) 632.

(3) People v. Mariposa Co., 39 Cai. 683; In re Gillespie, 11 Tenn. (3 Yerg.) 325.

(4) Miss v. People, 116 Ill. 265, 4 N. E. 783; Rogers v. Co..melin, Fed. Cas. No. 12,00J.

(5) Roland v. Gardner, 69 N. C. 5. (6) State v. Baxter, 38 Ark. 462; Gibson v. State, 59 Miss. 341. Mix v. People, supra.

(7) North Brunswick v. Booream, 10 N. J. L. (5 Halst.) 257.

(8) Bonnifield v. Thorp, 71 Fed. 924; Indianapolis, B. & W. R. Co. v. Maddy, 103 Ind. 200, 2 N. E. 574; Louisville, St. L. & T. R. Co. v. Newsome, 13 Ky. Law Rep. 174; People v. Lamb, 85 Hun 171, 32 N. Y. Supp. 584.

livering the opinion of the court in Bonnifield v. Thorp:9

"The practice is also well settled that the authority for an attorney to appear cannot be called into question except by a motion directly for that purpose, based upon affidavits, showing in the first instance prima facie a want of authority; and, upon the hearing, such want must be established by clear and positive proofs. The proceeding may be by motion to vacate the appearance, to dismiss the action, or for an order requiring authority to be shown; and in cases where the validity of an order, judgment or decree depends upon the jurisdiction of a court over the person of a party, acquired solely by an appearance of attorneys, the authority of such attorneys may be attacked upon a motion to vacate the order, judgment or decree. In the absence of some such proceeding, directly challenging the authority, the court will not hear or inquire into the question of the authority of the attorney for his appearance."10

The rule is thus stated in Cyc.:11

"The question of an attorney's authority to represent an alleged client cannot, it has been held, be raised collaterally, or on a demurrer, nor should it be set up in a pleading, but must be raised on motion directly for that purpose, and supported by affidavits."

And in Story's Equity Pleading it is stated as follows:12

"When the plaintiff in a suit at law is a fictitious person, the defendant may plead it in abatement. In equity a different and more summary course is adopted, and upon motion the court will direct a stay of the proceedings, or that the bill be taken off the files, and will order the solicitor to pay the costs for his contempt in instituting the suit. If the name of a complainant should be used without his authority, a similar course would be pursued."

Thus it will appear that, independently of the above rules, it is improper to raise the question of an attorney's authority to represent his client by demurrer, plea or answer. The reason for this seems clear, especially in the case of an attorney representing the plaintiff. It is in the nature of a dilatory question which, under the civil law, would be raised

(9) 71 Fed. 824 (appeal dismissed, 83 Fed. 1022).

(10) Citing Hollins v. St. Louis & C. R. Co., supra; Insurance Co. v. Pinner, 43 N. J. Eq. 52, 10 Atl. 184; Hill v. Mendenhall, 21 Wall. 453; McKiernon v. Patrick, 4 How. (Miss.) 336; Howe v. Anderson (Ky.), 14 S. W. 216; Reynolds v. Fleming, 30 Kan. 106, 1 Pac. 61; Williams v. Canal Co., 13 Colo. 469, 22 Pac. 806; affirmed in Dillon v. Rand, 15 Colo. 372, 25 Pac. 185; Winters v. Means, 25 Neb. 241, 41 N. W. 157: Turner v. Caruthers, 17 Cal. 432; People v. Mariposa Co., supra. See also 6 C. J. 635, and cases cited 4 Cyc. 930. § 498.

(11)

(12)

before the praetor in order that he might decide whether the case should go before the judge, like a question which must be raised ante litem contestam. In other words, it is not a question of pleading, but a question that goes to the good faith of a sworn officer of the law in his relations to the court, and on this account, the courts have uniformly held that it is such a question as must be taken up independently of the pleadings and by a motion directly for the purpose.

The point which we are called upon, therefore, to determine is whether the above rules reverse this well established doctrine. As their titles show, they are directed to the subject of defenses and the methods of presenting them. Prior to their adoption, defenses might be presented by demurrers, pleas and answers. Demurrers and pleas are abolished by the rule, and, as a substitute for the dethe motion to dismiss is adopted. murrer, The question of the authority of an attorney to represent a plaintiff, therefore, does not present a defense to a suit. Since, before these rules were adopted, it was not proper to raise the question either by demurrer, plea or answer, it seems clear that the rules were not intended to contract the sphere of the motion to dismiss, but rather to enlarge it and to require that such motions should be used in the future where formerly it was not customary to do so. And since, before the adoption of the rules, it was proper to raise the question of an attorney's authority to represent his alleged client by a motion to dismiss and improper to do so by the pleadings, it would seem that it is still proper to raise this question by a motion to dismiss, and not by the answer. CHRISTOPHER B. GARNETT, in the Virginia Law Review.

HUMOR OF THE LAW.

She. You ought to be ashamed of stealing a kiss.

He. You are equally guilty. You received the stolen goods.-Edinburg Scotsman.

Patsy Doolan was taken up on the charge of stealing a watch. His employer was called as a witness to character, and said that he had always found the accused honest and upright. Unfortunately there was evidence to the contrary with regard to the case at issue, and Patsy was convicted and sent to prison, to the great distress of his wife, who left the court weeping bitterly. A neighbor, seeking to comfort her, said: "Och now, Mary, don't take

on so. Just think what a good character Mr. Byrne gave your man. Sure we'd never have known what a fine fellow Patsy was if he hadn't stolen that watch."-Pittsburg Sun.

An indictment had been found against a colored man, relates the Jacksonville Observer, for (as the indictment read, following the words of the statute) "breaking and entering into a dwelling house in the nighttime, with intent to commit a felony."

The case coming on for trial, the defendant pleaded "not guilty." The testimony showed, without any doubt, that the prisoner, on the night in question, climbed up the piazza to the second floor, and then broke in through a window upstairs, into an upper room. Just then a man rushed into the room and grabbed him before he had a chance to get anything. No evidence was introduced to the contrary. After the arguments of the counsel pro and con, and the charge of the court to the jury, the jury retired to consider their verdict. In a very few minutes the jury had all agreed except one, on a verdict of guilty. This one, however, was a colored preacher, who said he could not agree to such a verdict because, he said, the indictment read that the "breaking and entering was to be with intent to commit a felony." "Now," said he, very emphatically, "whar was de evidence of de intent?" Then a long argument ensued over the question of "intent" between the white jurors and the colored preacher, who repeatedly and emphatically inquired, "Whar was de evidence of de intent?" The white jurors hated to come into court and say that they could not agree upon a verdict of guilty in such a plain case as that, but they could not see any other way to do.

But just then a colored juror, who had been sitting quietly all through the discussion, saying nothing, turned to the preacher, looking him straight in the face, and said: "See heah, youse a preacher isn't you?"

"Yes, I is. I is a minister ob de Gospel," straightening up proudly.

"Well, den, I specks you believes de Bible?" "Yes, sah I believes ebery word in de Bible." "Well, den, don' the Bible somewhar say dis: 'Verily, verily, I say unto you, he that entereth not by the door, but climeth up some other way, the same is a thief and a robber?" (St. John chap. 10, 1st verse.)

The preacher gasped and came immediately down. "Dat so, dat so," he said. "I guess he guilty. Yes, he guilty."

And so the verdict was brought right in.Case and Comment.

WEEKLY DIGEST.

Weekly Digest of Important Opinions of the State Courts of Last Resort and of the Federal Courts.

Copy of Opinion in any case referred to in this Digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn.

Alabama California

Georgia

Indiana

Iowa

Kentucky

Maryland

Michigan

Minnesota

New York

North Carolina

Oklahoma

South Dakota

Texas

..27, 30, 38,

.13, 22, 24, 31, 34, 53 ...1, 16, 17, 32, 51, 61 ..43, 45, 57 .15, 18 .12, 39 35, 47, 49 .21, 36, 60, 62 41, 42, 44 ...23, 26 .14, 19, 28, 48, 50, 56, 58, 63 ....3, 25 ..20, 33 40 .4, 46, 59 ..7, 8, 10, 37, 54, 55 ...5, 6, 9, 52 ...2, 11, 29

United States C. C. A...... United States D. C.... West Virginia

1. Attachment-Amendment of Complaint.A surety company, executing a bond to release an attachment, such bond undertaking to pay any judgment obtained in the action, is not aischarged, under C. Code, § 2819, by an amendment of the complaint, not setting up a new cause of action, but merely increasing the amounts demanded for breach of contract.Turner v. Fidelity & Deposit Co. of Maryland, Cal., 200 Pac. 959.

2. Attorney and Client-Attorney's Lien.— An attorney by whom a judgment or decree was obtained for his client has a lien upon a fund arising from enforcement of such judgment or decree against the land of the debtor, by another attorney employed by his client, prior and superior to the lien thereon of such subsequently employed attorney, unless he has expressly or impliedly assented to such subsequent employment or, in some way, relinquished his right further to represent his client in the matter, or, by negligence or other misconduct warranting his discharge, has lost it. -Brown v. Erwin, W. Va., 108 S. E. 605.

V.

3. Authority of Attorney.-In a summary proceeding in ejectment, where the jury gave possession of the property to the owner and fixed the rental at $111.66, contrary to the testimony of what a fair rental should be, and an intimation by the court that the verdict would be set aside as against the weight of evidence, unless plaintiff consented to a reduction in the rental to $60, held, where it is established that attorney's consent to such reduction and compromise is without express authority from the client and contrary to his instruction, such judgment will be set aside.-Bizzell Auto Tire & Equipment Co., N. C., 108 S. E. 439. 4. -Value of Services.-An attorney employed to perfect title to certain land under a contract entitling him to certain interest in the land for such services could not, on client's termination of contract before he had fully performed services, recover as reasonable value of the services, upon quantum meruit, more than the value of the land which would have been his compensation for his services had the title been perfected.-Smith v. Thompson, Tex., 233 S. W. 876.

5. Bankruptcy-Motion to Intervene.-Motion to intervene in bankruptcy proceedings by applicants who allowed a default of nearly two months to run against them without any excuse whatever may be denied, in the discretion of the court. In re Tidewater Coal Exchange, U. S. D. C., 274 Fed. 1011.

6.- -Partnership.-Bankr. Act. § 5a, providing that a partnership may be ajudged a bankrupt, treats a partnership as an entity, and in view of General Order in Bankruptcy No. 8, providing that a member of a partnership who refuses to join in a petition to have the partnership declared bankrupt "shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership," that he shall be served with notice, and "shall have the right to appear * * and to make proof if he can that the partnership is not insolvent or has not committed an act of bankruptcy and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act, "a petition filed against a partnership by one partner alone must conform to the requirements of an involuntary petition and must allege insolvency and an act of bankruptcy by the partnership.-In re Ollinger & Perry, U. S. D. C., 274 Fed. 970.

7. Priority of Payment.-The United States Shipping Board Emergency Fleet Corporation, incorporated under the general corporation law of the District of Columbia pursuant to Act. Sept. 7, 1916, §§ 11, 13, given the President's authority to construct, purchase, and requisition vessels under Act June 15, 1917, by the President's executive order of July 11, 1917, was not entitled to priority of payment under Bankruptcy Act. § 64, and Rev. St. § 3466, of a debt due it from a bankrupt with whom the corporation made a contract as a principal, and not as the agent of the United States government, on the theory that the debt was one due to the United States, since, the corporation having been organized as a private corporation under the District of Columbia's general incorporation law, the government's ownership of the stock did not divest it of its character as a private corporation, in view of $§ 607, 608. -In re Eastern Shore Shipbuilding Corporation, U. S. C. C. A., 274 Fed. 893.

8.- -Taxes.-Under Bankruptcy Act, § 64a, claim of the government for taxes is not ordered paid in its entirety as matter of course and the trustee remitted to proceedings under Rev. St. § 3226 to have the money returned, but the bankruptcy court passes on and determines validity of the tax in the first instance; it not being a case where the trustee is seeking to maintain a suit for recovery of internal revenue taxes illegally assessed, the government and not the trustee being the moving party, and this notwithstanding the trustee moves that the government's proof of debt be reconsidered and rejected, a verified proof of debt in bankruptcy having probative force and making out a prima facie case requiring the objector to go forward.-In re General Film Corporation. U. S. C. C. A., 274 Fed. 903. 9. Unincorporated Association." Tidewater Coal Exchange, an association organized by shippers of bituminous coal during the war with Germany, at the instance of the Council of National Defense, for the purpose of speeding the transshipment of coal from cars to ships at tidewater, etc., involving a general pooling arrangement for coal, with debit and credit charges against and for each member, held an "unincorporated company" within Bankruptcy Act, § 4B, so as to give the District Court jurisdiction of an involuntary petition against it. In re Tidewater Coal Exchange., U. S. D. C., 274 Fed. 1008.

The

10. Voluntary Petition.-There is no presumption of authority in an officer of a corporation to make and file a voluntary petition in bankruptcy, and he may not do so without the consent of the directors.-Regal Cleaners & Dyers v. Merlis, U. S. C. C. A., 274 Fed. 915. 11. Bills and Notes-Liability of Endorser.To render an endorser liable on a negotiable note. it must be presented at the particular time and place specified therein and timely notice of its dishonor given the endorser, unless it is alleged and proven that he in some way waived such notice.-Hastings v. Gump, W. Va.. 108 S. E. 600.

12. Brokers Commission.-A commission is earned when the broker produces a purchaser accepted by the principal, and the subsequent