ty pages of testimony where we now have three hundred, because the majority of the questions now put to witnesses will be unnecessary, and the number of facts about which testimony must be taken will largely decrease. We confidently contend, that if pleadings were required to tell each party's story, not only would the issue appear much more clearly and definitely, but the bulk of the whole case would materially shrink.

And, if one of the objects of rules of procedure is to curb arbitrariness upon the part of the judges, then no better means can probably be devised than that of commencing the case by making a full, clear and explicit record of what the dispute is about; that cannot be gotten away from afterwards.

There is a certain charm about what has survived for a long time; you hate to see an old landmark go, but when it becomes a hindrance and a nuisance, it must go; if it is not in the way, it remains and is kept up and in repair. Some rules of practice everywhere are direct descendants of such as were invented in honor of the hoodoo, or for the radical purpose of keeping the fear of the hoodoo ever present in the mind of the tyrant; such do very little harm, there is something quaint about them, they appeal to you in the same way as an old family heirloom. Others are nothing but embroideries, scholastic rules, laid down as foundations for dialectic fireworks. These do harm; in them the "game" is hidden, they lead both bench and bar astray into "playing" the "game," instead of trying the case. These ought to go. The "game" feature will never entirely disappear from cases, until all men are angels, when there will be no cases. But instead of having rules of practice inviting to gaming, we might have rules discouraging it. AXEL TEISEN.

Philadelphia, Pa.

PARTNERSHIP-NOTICE OF DISSOLUTION.

WOOD v. J. W. JEFFERIES & CO.

Supreme Court of Appeals of Virginia. January 12, 1915.

83 S. E. 1074.

A publication in a newspaper of a notice of dissolution of a firm by the withdrawal of a partner and of the continuance of the business at the same place and under the same name is not in itself notice to a previous customer of the firm, and where he has no actual notice the retiring partner is liable on a note subsequently executed by the new firm.

WHITTLE, J. This is a writ of error to a judgment in behalf of the defendant in error against the plaintiff in error for $600, with interest and protest fees, on five negotiable notes, aggregating the above amount, made by the Manchester Wood & Coal Company, by R. G. Wood, Jr., to the plaintiff.

On

The origin of the transaction out of which the litigation arose is this: Prior to April 1, 1911, Mary H. Wood and R. G. Wood, Jr., were partners under the firm name of the Manchester Wood & Coal Company, located and doing business in South Richmond. Amongst its customers was the plaintiff, trading as J. W. Jefferies & Co., of the city of Richmond. April 1, 1911, M. H. Wood and R. G. Wood, Jr., published notice, by two successive weekly insertions in the News-Leader, a daily newspaper in the city of Richmond, of the dissolution of the firm of the Manchester Wood & Coal Company by the retirement of M. H. Wood. The notice, moreover, announced that the business would be conducted at the same

place and under the same name, with R. G. Wood and R. G. Wood, Jr., as partners. The notes upon which the judgment under review was rendered, though made after publication of the notice of dissolution, were renewal notes given by R. G. Wood, Jr., in lieu of notes for similar amounts made by the old firm before dissolution. The proceeding was by motion and the notice was only served on M. H. Wood. The plaintiff had been a customer of the old firm, and the vital point in the case was whether or not he had actual notice or knowledge of the dissolution of the firm prior to the making and delivery of the renewal notes.

(1) With respect to notice of the voluntary dissolution of a general partnership, a distinction is drawn between those who have previously dealt with the firm and those who have had no such dealings.

As was said by this court in Dickinson v. Dickinson & Co., 25 Grat. 321, at page 329:

It

"As to the former, it has been universally held that actual notice is indispensable. must not be inferred, however, that special notice must be given to each customer. If actual knowledge of the dissolution is brought home to the party, he will be concluded, although no notice whatever may have been given."

(2) The doctrine is thus stated by Professor John B. Minor:

"A partnership is not ended, in respect to strangers, merely by an agreement between the several partners to dissolve it. From existing debts and liabilities of the firm to third persons, the retiring partner is, of course, in no case exonerated by the dissolution; and even as to such as are contracted afterwards, he is responsible in cases of voluntary dissolution, unless he gives notice of the fact to the public by general advertisement in the newspapers or otherwise, and to the previous customers of the firm by special communication, as by circular or other similar mode. Smith's Merc. Law, 33; Sto. Part. §§ 159, 334; Parker v. Carruthers, 3 Esp. 249; Dickinson'v. Dickinson, 25 Grat. 321." 3 Min. Inst. pt. II (2d Ed.) p. 888.

(3) The publication in this instance in the News-Leader was not in itself notice to the plaintiff of the dissolution. And the only direct evidence on the subject was the testimony of the plaintiff, J. W. Jefferies, who said that he had no actual notice.

(4) In this state of the record, it is not necessary to notice the assignments of error in relation to the giving and refusal of instructions, since the jury could not, even under proper instructions, have rightly found a different verdict. Burks' Pl. & Pr. § 267, p. 503; Winfree v. Bank, 97 Va. 83, 33 S. E. 375; Southern Ry. Co. v. Oliver, 102 Va. 710, 47 S. E. 862; Moore v. B. & O. R. Co., 103 Va. 189, 48 S. E. 887; Schwalm v. Beardsley, 106 Va. 407, 56 S. E. 135.

For the reasons stated the judgment should be affirmed.

Affirmed.

NOTE.-Publication of Notice of Dissolution Not of Itself Effective Against Former Dealers with Partnership. The statement that the publication made in the instant case was not in itself notice of the dissolution seems well borne out in decision. Thus it was said in a West Virginia case that: "One class of persons has become acquainted with the firm, and, by presumption of law, with its membership, so far at least as this is not dormant. These are entitled to the same certainty of notice of dissolution as they had of its existence, which is actual knowledge. The rest of the world, i. e., that part of it which has

not given credit because acquainted with the fact of its existence from reputation, hearsay or their own observation. And this is to be counteracted by a publicity of the same sort, and at least measurably as widely spread, viz., proper publication in the proper newspaper. It is true the latter class may be as much misled by want of actual knowledge of dissolution as the dealer class, yet the partners cannot know who such persons are, and if more than constructive notice were required, a partner would in the often quoted language of Lord Kenyon in Abel v. Sutton, Esp. 108, 'never know when he was to be at peace and freed from all concerns of partnership.' Werner v. Calhoun, 55 W. Va. 246, 251, 46 S. E. 1024.

There

But the form of notice is immaterial. must be "actual notice or knowledge of the facts. sufficient to put" the former dealer upon inquiry. Smith & Cheney Co. v. Schmidt, 142 Mich. 1, 105 N. W. 39. This case, however, rules quite strictly as to what constitutes a former dealer. Thus while the plaintiff accepted what was the first order for goods given by defendants before dissolution, yet if the terms were changed in any way after dissolution, the retiring partner would not be held. For this there was cited Goodspeed v. Wizard Plow Co., 45 Mich. 322. This case showed, however, that two days before goods were shipped there was actual notice given of dissolution, and there was no acceptance of the contract of sale prior to this time.

In Simmons Hdw. Co. v. Peck, 176 Mo. App. 86, 162 S. W. 1061, it was said: "If the plaintiffs had dealt with the company (creditor) before the retirement of any of its members, it was necessary that notice should have been given to the plaintiffs of their retirement and this notice should have been actual and brought home to them, or, at least, the credit must have been given under circumstances from which actual notice may have been inferred. Notice in a newspaper, though published in a fair and usual way, will not of itself, be sufficient as to those having former dealings with the company." There are cited a number of Missouri cases to this effect.

And it is no defense that they (the partners) were in fact unknown to the creditor, as the proof showed in a Massachusetts case. Victor v. Spalding, 202 Mass. 234, 88 N. E. 846.

In Eighth Circuit Court of Appeals, Thayer, C. J., said: "The usual practice among merchants is to mail written or printed notices to those with whom the firm has previously had dealings when any changes occur in the personnel of the firm, and those who have dealt with it may reasonably expect such a notice or a notice in some other form which is equally authentic." Neal v. Smith & Co., 116 Fed. 20, 54 C. C. A. 226. In this case the proof that Martin and Neal did business under the firm name of Charter Oak Mercantile Company and after the dissolution by sale to one Cushman, the latter was introduced to plaintiffs' manager by a traveling agent, as "Mr. Cushman, the whole cheese of the Charter Oak Mercantile Company." This statement was not regarded as "proper or sufficient notice of the dissolution of the firm. The traveling agent was of the Charter Oak M. Co. Judge Thayer principally decides this case upon the fact that it was no part of the duty of the traveling agent to give such notice, as it was "so easy for one who has retired from a firm to rid himself from liability for future debts by mailing a notice of his withdrawal to those with whom the firm has been in the habit of dealing."

In Nevens v. Bulger, 93 Me. 502, 45 Atl. 503, there was offered in evidence a published notice of the dissolution so as to affect prior dealers with a partnership without any proof to show actual notice or knowledge and it was held rightly excluded.

A New York case as to creditor dealing with the old firm, said: "It was necessary for the defendant to show that the plaintiff had actual knowledge or was chargeable with knowledge of two important facts, namely, the misuse by the other partner of the firm name before or after the dissolution and the actual or formal dissolution by the partners as between themselves. The formal act of dissolution had no effect on plaintiff until it was chargeable with knowledge of the fact."

It seems unnecessary to quote further from cases, as the law seems quite universal, that there must be actual knowledge of dissolution or what is equivalent thereto so far as former dealers are concerned, and published notice suffices only for those dealing with the firm afterwards, though there is no change in the firm name.

ITEMS OF PROFESSIONAL

INTEREST.

C.

Ever since we wrote the article which we entitled "A Radical on the Supreme Bench," which appeared in 79 Cent. L. J. 441, many inquiries have come to our table for more information concerning the subject of that article, Hon. Walter Clark, Chief Justice of the Supreme Court of North Carolina. Hence the portrait of Judge Clark on the front cover page in this issue, and hence this sketch.

He was born August 19, 1846; is a native of North Carolina, and a graduate of its State University. He served in the late civil war, holding the distinction of being the youngest officer of his rank (lieutenant-colonel) in the Confederate army. He was admitted to practice in 1868, was elected to the office of Judge of the Superior Court in 1885, and to the office of Justice of the Supreme Court in 1889, where he has served the people of his state ever since, being made Chief Justice of the court in 1903.

No one questions Judge Clark's scholarship. While extremely radical in his views, his arguments, always well constructed and embellished, are literary imagery of unusual grace and beauty. And while we cannot bring ourselves into agreement with all his views, we are quite interested in the personality of the man and marvel at the wonderful abandon with which he tears down the sacred idols of an ancient profession.

Judge Clark has written probably as many dissenting opinions, which afterward became

the law as any judge that ever lived. In this respect he runs a close race with Hon. Thomas A. Sherwood, a justice of the Supreme Court of Missouri for thirty years, now living at Long Beach, California.

Judge Clark's dissenting opinions are, as a rule, vigorous, though somewhat extreme, protests against tying up the law of to-day too hard and fast to the law of a hundred years ago. His position is well illustrated by a dissenting opinion filed in the case of Gill v. The Commissioners, 160 N. C. 176. In this case the majority of the court held that a statute which gave "freeholders" the right to sign certain school tax petitions, did not include "women," since at the early common law only a "freeman" could hold a freehold estate, and the feudal duties attaching to such a holding were not performed by women. Here, indeed, was a situation and an argument against which the spirit of this extreme "modernist" among judges rebelled most bitterly.

In a very learned and exhaustive dissenting opinion Judge Clark tears the argument of the majority into pieces. We do not know where we have ever read a more searching analysis of the weakness of analogies based on ancient common law decisions, especially when applied to modern conditions or modern statutes. His argument contained the idea that when a legislature of present day business men use such a term as the word, "freeholders," they do not have in mind what he calls the barbaric conditions of an ancient feudalism, out of which the word was originally evolved; but had in mind only the fact that any one who owned property for life or in fee is known to-day as a "freeholder," whether male or female. The closing paragraph of this dissenting opinion affords such a striking illustration of Judge Clark's manner and style of opinion writing that we quote it in full. He said:

"We can derive no aid by reference to the status of women under the feudal system, which was long ago rejected by the common sense and sense of justice of our race and the remnants of which were abolished as long ago as 12 Charles, II., (1660), over two centuries and a half ago. Nor is there any help to be had from decisions concerning the meaning of the word 'freeholder' as one of the qualifications for voting and holding office, which are restricted by the Constitution to 'male persons.' We are here dealing with a statute to provide safeguards in voting taxation, and the ownership of property, unlike suffrage is not restricted to one It is not the province of the courts to seek out strained analogies, or to delve in the debris of a rejected and barbarous legal sys

sex.

tem to defeat and destroy an act which the legislature has adopted in accord with the spirit of an advancing civilization. It is not for us to bivouac always by the abandoned camp fires of more progressive communities. The courts should construe legislation from the standpoint of the age and the men who enact it."

It is interesting to note that as we go to press we receive the information that the Legislature of North Carolina, now in session, on February 9, 1915, by a two-thirds vote sustained Judge Clark's view as to what they really did mean by the use of the word "freeholder" in the statute above referred to.

A. H. ROBBINS..

BOOK REVIEWS

BENDER'S WAR REVENUE LAW. The book on this subject pertains to the internal revenue act of 1914, regarded by Congress to be called for because of decrease of customs on importations resulting from the existence of the European war.

This "war tax" thus necessitated is conceived to be temporary in its nature and to meet an extraordinary need in an emergency, and this book refers to rulings in applying former such laws as an aid to construction of the present act.

The book may be deemed useful to a quick understanding of the statute by giving the history of such a system of taxation and by the annotation of sections thereof of like import with those in former laws. For example, there is an extensive note on license and occupation taxes, in which their constitutionality is shown, and the kind of construction to be placed on them. Many departmental rulings under former statutes as well as judicial decisions are instanced.

The book appears in excellent type as to sections and the notes thereon, is bound in law buckram, contains index and table of cases and issues from the house of Matthew Bender & Co., Albany, N. Y., 1914.

BOOKS RECEIVED

Modern Legal Philosophy Series: Vol. X. The Formal Bases of Law. By Giorgio Del Vecchio, Professor of Philosophy of Law in the University of Bologna. Translated by John Lisle of the Philadelphia bar. With an editorial preface by Joseph H. Drake, Professor of Law in the University of Michigan. And with introductions by Sir John MacDonnell, Professor of Comparative Law in University College, London, and Shepard Barclay, former Chief Justice of the Supreme Court of Missouri. Price, $4.50. Boston. The Boston Book Company, 1914. Review will follow.

HUMOR OF THE LAW.

An Englishman and a German were dining together the other night. They are friends of long standing, too fond of each other to allow hostilities across the sea to disrupt their friendship. On the contrary they take pleasure in "spoofing" each other about the strained relations between their countries.

The Englishman remarked that he supposed that Germany would fight to the last German. The Teuton answered:

"Yes, and I suppose England will fight to the last Frenchman."-Case and Comment.

An English judge was trying a case where the accused could only understand Irish, and an interpreter was accordingly sworn, Presently the prisoner said something to the interpreter and the latter replied. The judge demanded to know what was said, and although the interpreter declared that it had nothing to do with the case the judge insisted. "My lord," said the interpreter at length, "he said, 'Who's that ould woman sitting up there with a red bed-curtain round her?" And I said, 'Whist, ye spalpeen, that's the ould boy that's going to hang yez!'" Then the judge wished he had not insisted

Lawyer (to timid young woman)--"Have you ever appeared as witness in a suit before?"

Young Woman (blushing)-"Y-yes, sir; of course."

Lawyer-"Please state to the jury just what suit it was."

Young Woman (with more confidence)"It was a nun's veiling, shirred down the front and trimmed with a lovely blue, and hat to match-"

Judge (rapping violently)-"Order in the court!"-New York Sun.

A colored man called at Mrs. Baxley's looking for work.

"What is your name?" she asked, after hiring him.

"Mah name is Poe, ma'am," was the an

swer.

"Poe!" she exclaimed. "Perhaps some of your family worked for Edgar Allan Poe; did they?"

The colored man opened his eyes wide with amazement.

"Why-why, ma'am," he said, as he pointed a dusky finger at himself "why, ah am Edgah Allan Poe!"-October Lippincott's.

1. Adverse Possession Abandonment. Where defendant ceased cutting timber for 11 years, but in the meantime marked the lines and made a survey, the possession was not abandoned.-Chase v. Eddy, Vt., 92 Atl. 99.

2. Defined.-Where defendant and his predecessors in title in possession of adjoining land merely marked off the boundary of the land claimed, took a few rails and logs therefrom, but did not have actual possession for the statutory period, such possession could not ripen into a prescriptive title.-Frazier v. Ison, Ky., 170 S. W. 977.

3. Prescription. To constitute adverse user essential to an estate by prescription, the possession must be actual, open and notorious, hostile under an exclusive claim of right, and continuous and uninterrupted for five years prior to the commencement of the action.Howard v. Wright, Nev., 143 Pac. 1184.

4. Bail-Jurisdiction.-The Supreme Court, having only appellate jurisdiction, under Const. art. 85, may not bail an accused pending an appeal from the affirmance of a conviction to the Supreme Court of the United States.-State v. Duvall, La., 66 So. 387.

5.

Bankruptcy--Exemption.-Where a husband before bankruptcy transferred his homestead interest to his wife, the fact that on bankruptcy proceedings he claimed a homestead exemption does not, under Rev. St. 1909, § 8304, prevent the wife from asserting her homestead exemption in the same property.-Morrow V. Zane, Mo., 170 S. W. 918.

6.Widow's Allowance.-The right of the widow and children of a deceased bankrupt, under Bankr. Act, July 1, 1898, § 8, to the allowance they were entitled to from his estate under state law, was not lost because the estate had vested in the trustee in bankruptcy under section 70 of the Bankruptcy Act before the death of the bankrupt.-Hull v. Dicks, 35 Sup. Ct. Rep. 152.*

7. Banks and Banking-Indictment.-Indictment, charging cashier of banking and trust company with receiving a deposit, knowing that such institution was insolvent, held insufficient to state an offense under Acts 1911, c. 44; it not alleging that the banking and trust company was a bank, and such company not appearing in any list of corporations published pursuant to Shannon's Code, § 2033.-State v. Willis, Tenn., 170 S. W. 1032.

Laws 1913, c. 22, under which a bank depositor's guaranty fund is created by an assessment on state banks, is not affected because the state vested the title to the fund in itself, so as to extend to the state banking board the state's immunity from suit.-Lankford v. Platte Iron Works Co., 35 Sup. Ct. Rep. 173.

9. Bills and Notes-Intoxication.-In an action on a note executed for a valid debt, the defense that it was executed by defendant while intoxicated was not available, where for five years after knowledge of the transaction he recognized the note as valid.-Matz v. Martinson, Minn., 149 N. W. 370.

10. Transfer by Bona Fide Holder.-Where a note given to raise money for stock gambling was valid in the hands of the payee, it may be enforced by an accommodation indorser, even the though he knew the purpose for which money was used.-Citizens' Nat. Bank v. MacDonald, Va., 83 S. E. 389.

11.

Boundaries-Evidence. Evidence that ordinary land overruns measures given in old deeds and surveys held admissible to explain apparent discrepancies between old surveys and what are claimed to be the monuments marking lines and corners.-Smith v. Booth Bros. & Hurricane Isle Granite Co., Me., 92 Atl. 103.

12. Carriers of Passengers-Negligence.Where one at a railroad station, with which he was familiar, attempted to leave the platform, where it was dark, and where he knew there was no railing, though he could have gone down steps which were lighted by his lantern, or could have taken the lantern with him, he was negligent.-Dunnevent v. Southern Ry. Co., N. C., 83 S. E. 347.

13.- -Negligence Per Se.-The act of a brakeman in jerking from the steps an elderly female passenger alighting from a train held negligence per se, rendering the carrier liable for injuries sustained as the proximate result thereof. Chicago, R. I. & P. Ry. Co. v. Pitchford, Okla., 143 Pac. 1146.

14. -Prima Facie Case.-In an action for the loss and breakage of articles in a passenger's grip, plaintiff's proof that when he delivered the grip to defendant it was in good condition, and when he received it 60 days later some of the contents were gone and some damaged, held sufficient to make out a prima facie case of negligence against the carrier as bailee.-Ross v. St. Louis, I. M. & S. Ry. Co., Mo., 170 S. W. 920.

15. Regulations.-A railroad has the right to require of persons to purchase the tickets before becoming passengers and to exhibit their tickets and enter the trains at certain doors, provided sufficient facilities are afforded.-St. Louis & S. F. R. Co. v. Dyer, Ark., 170 S. W. 1013.

16. Commerce-Excise Tax.-Annual excise tax equal to five-tenths of 1 per cent on gross earnings from transportation originating and terminating within the state, imposed by Tax Law, N. Y., § 184, is not an invalid regulation of commerce as applied to a navigation company engaged in towing on the Hudson river under a license granted by the United States.People ex rel. Cornell Steamboat Co. v Sohmer, 35 Sup. Ct. Rep. 162.

17. Federal Regulation.-Absence of federal regulation does not justify the city of Covington, Ky., in regulating interstate business of a street railway company transporting passengers from that city to Cincinnati, Ohio, by restricting the number of passengers which the company may admit to its cars and requiring it to operate sufficient cars to accommodate the public within the limits of such restriction.South Covington & C. St. R. Co. v. City of Covington, 35 Sup. Ct. Rep. 158.

18.- -Telegraph Companies.-Act of Congress of June 18, 1910, which made telegraph companies subject to federal rules and regulations, held to supersede state statutes in so far as they impose penalties for delay in the transmission of interstate messages.-Western Union Telegraph Co. v. First Nat. Bank or Berryville, Va., 83 S. E. 424.