upon a review of the authorities distinguished such 2 case from the case where an acknowledgment of some kind was made, but assailed because not made, in respect of its details, in the manner required by law. In Borland v. Walrath, 33 Iowa, 130, the wife neither signed nor acknowledged the mortgage, and the court held the certificate, which as to her was in due form, open to attack. The case however is unsatisfactory as authority on the point we are considering, since no allusion is made to the question of bona fides or notice on the part of the mortgagees, nor does it appear from the facts that he was a bona fide mortgagee without notice of the falsity of the certificate. In Smith v. Ward, 2 Root, 374, it was held that parol evidence is admissible to prove that the grantor did not appear before the certifying officer and make acknowledgment; but, like the case last cited, the discussion is meager, and makes no reference to the rights of bona fide purchasers. In Meyer v. Gossett, 38 Ark. 377, the court held that where there is no appearance before the officer, and no acknowledgment in fact, the officer's false certificate of acknowledgment is void in toto; but the distinction was closely drawn that where there are an appearance and acknowledgment in some manner the certificate is conclusive of every fact appearing on its face, and evidence of what passed at the time of the acknowledgment is inadmissible to impeach the certificate, except in case of fraud or imposition brought home to the grantee. It appeared that the grantee was a purchaser for value, without notice of the falsity of the certificate. That case was adhered to in Donahue v. Mills, 41 Ark. 421. In Williamson v. Carskadden, 36 Ohio St. 664, the general rule as to conclusiveness of the certificate is recognized, but the court say: "If it is true, as alleged by the defendants, * * * that they never appeared before the officer, or acknowledged the execution of such mortgage, the certificate of acknowledgment is, as to them, fraudulent; and, in availing themselves of that defense, it is not necessary to show that the mortgagee had notice of such fraud. In fact, the governing principle is very broad. Thus it has been held that in an action on a recognizance, which is regarded as a record, a plea in bar that the defeudant did not acknowledge the recognizance is sufficient; and however it may be as to the right to attack a judgment on the ground that there was no jurisdiction over the person, it is not denied that in a proper case a judgment may be directly impeached on that ground." In Mays v. Hedges, 79 Ind. 288, it was held that a certificate of acknowledgment to a deed made by the officer merely on the assurance of another that the party executed it, is a nullity. In Pickens v. Knisely, 29 W. Va. 1, we have a very full and ample discussion of this subject, upon a review of the authorities; and the conclusion reached was that the certificate of acknowledgment of a deed by a married woman may be impeached and avoided by proving that she never in fact appeared before the officer, or acknowledged the deed to him, and that this rule will be enforced against an innocent purchaser without notice. But if she appeared before the officer for the purpose of making the acknowledgment, and attempted to do in some manner what the law required to be done, the certificate is conclusive of the facts therein stated, as regards innocent purchasers. In a dissenting opinion, Judge Green took strong ground against this conclusion. He maintained that the act of the officer is judicial, and likened it to the entry of a fine, and said: 'It only remains to inquire whether if the entry on the record book of a court of general jurisdiction, and which court only could enter a fine, was that the married woman personally appeared before the court and acknowledged the fine in the appropriate manner, she could by parol evidence contradict this statement on the record book. I think it well settled that she could no more contradict the statement on the record that she personally appeared before the court than she could contradict the further statement on the same book of such court that she acknowledged the fine in the proper manner." In line with this dissenting opinion, Kerr v. Russell, 69 Ill. 666, held that the statute authorizing certain officers to take the private acknowledgment of a wife to a conveyance is a substitute for the proceeding at common law by fine and recovery, whereby the rights of the wife, on the one hand, may be guarded, and on the other the rights of the grantee may be assured; that, as a fine and recovery at common law were subject to impeachment for fraud, so the certificate of acknowledgment of a deed by a wife may be impeached, but the proof to sustain such a charge must be of the clearest, strongest, and most convincing character, and by disinterested witnesses; that an innocent purchaser of land has a right to rely upon the record of a deed which shows upon its face that the wife has executed and properly acknowledged the deed with her husband; and the wife will not be allowed to avoid the same as to such purchasers without notice by showing her signature to be a forgery, and that she never in fact acknowledged the same. The court, in the opinion, discuss the subject at length, and give strong and cogent reasons for the decision. There are other Illinois cases in support of this. Graham v. Anderson, 42 Ill. 514; Lickman v. Harding, 65 id. 505; Dock Co. v. Russell, 68 id. 426. In Barnett v. Proskauer, 62 Ala. 486, the wife neither signed nor acknowledged the mortgage assailed, but the husband, without her knowledge or consent, signed her name, and made the acknowledgment. It does not appear whether the mortgagee was a bona fide purchaser without notice of the actual non-execution of the mortgage by the wife, and falsity of the officer's certificate, or not. That question was not raised. In the opinion, Brickell, C. J., said: "The certificate of acknowledgment, or proof of probate, taking the places of proof by the subscribing witnesses, or of the handwriting of the grantor, may also be contradicted, and parol evidence is admissible to falsify it. It is an official act, done under the obligation of an official oath, and protected by the presumptions the law necessarily indulges in favor of the acts of its own offiThe burden of proof is on those who assail the verity of the certificate, and it can be successfully impeached only by clear and convincing evidence that the deed was not executed by the grantor, when the issue is limited, as in the present case, to the fact of execution." And it was held the wife was not bound. In Cahall v. Association, 61 Ala. 232, it is said, obiter dictum: "The certificate of the notary could not be impeached without showing the signature of the wife was forged, or that she was subjected to duress, or that fraud was practiced on her, with the knowledge of the grantee." In Shelton v. Aultman & Taylor Co., 82 Ala. 315, Justice Clopton, speaking for the court, construed the language we quoted above from Barnett v. Proskauer, 62 Ala. 486, to mean that as to the execution of the conveyance, the certificate may be disproved in all cases, and in the opinion he said: "The rule settled by the decision is that as to all matters, except the execution of the conveyance, the certificate, when substantially conforming to the statute, is conclusive, unless impeached by allegation and clear proof of fraud or imposition practiced on the wife, in which the officer or grantee participated." In that case, it may be seen, there was no question raised as to the actual signing of the conveyance by the wife, or the total want of an acknowledgment by her. The objection made was that she was not examined separate and apart from the husband. So that the distinction drawn by the judge between the execution of the conveyance and other matters may be said to be dictum cers. as gence in giving notice of dishonor as in cases where a formal protest is necessary. The term "protest,' applied to inland bills, is used in its popular sense, and means the steps essential in order to charge the drawer and indorsers. Dan. Neg. Inst. 929; Ayrault v. Bank, 47 N. Y. 570. It was the duty of the defendant bank to promptly give notice of the non-payment of the checks, either directly to the bank from which they were received, or to place them in the hands of a notary public for protest and notice. Bank checks, unlike bills of exchange, are due on the day they are presented for payment, and not entitled to days of grace. Boone Banking, 165, 250; Morrison v. Bailey, 5 Ohio St. 13; Champion v. Gordon, 70 Penn. St. 474; Fletcher v. Thompson, 55 N. H. 308; 2 Am. & Eng. Enc. Law, 398. The checks in question were dishonored on the 14th. when received through the mail, and payment refused for want of funds. Both the president and cashier, the only managing officers of the bank, knew that Hildebrandt's account was overdrawn. There was therefore no occasion for time to examine their books. It is said by Chancellor Kent (3 Kent Comm. 105): "According to modern doctrine, the notice must be given by the first direct and regular conveyance. This means the first mail that goes after the day next to the third day of grace, so that if the third day of grace be on Thursday, and the drawer and indorser reside out of town, the notice may be sent on Thursday, but must be put in the post-office or mailed on Friday, so as to be forwarded as soon as possible thereafter." The next inquiry is whether by delivering the checks to the notary public on the 15th for protest, the defendant discharged its duty to the plaintiff, for it is clear, upon authority, that that was the latest day on which notice could have been given in order to charge the indorsers. The rule sanctioned by the weight of authority is conceded to be that a bank which places paper in the hands of a notary public, with directions to proceed in such manner as to protect the rights of the beneficial owner and indorsers, will not be held liable for the failure of the notary to discharge his duty. See Boone Banking, 205; 2 Am. & Eng. Enc. Law, 113. But this case cannot be held to be within the rule just stated. Here the notary was the president and managing officer of the bank, and who, being aware of the dishonor of the checks on the 14th, did not protest them for non-payment, or notify the plaintiff or other indorsers of that fact, until the 17th. It is evident too that the cashier was aware of the dereliction of the president, for the checks appear to have remained in the bank during all the time, and whatever was done by the latter by way of noting protest, giving notice, etc., was with the knowledge of the former. It is true the 16th was Sunday, but the default occurred on the 15th. It was the duty of the notary, on that day, to notify the plaintiff, by mail, of the dishonor of the paper. The failure to protect the plaintiff as an indorser is directly attributable to the fault of the managers of the bank, and it will not be permitted to take refuge behind the notary, and to interpose his negligence as a defense. Upon the facts of this case the notary will not be held to be the agent of the plaintiff, but rather of the defendant. Bank v. Barksdale, 36 Mo. 563. Neb. Sup. Ct., April 26, 1893. Wood River Bank v. First Nat. Bank of Omaha. Opinion by merely. Moreover, we think the judge misinterpreted NEGOTIABLE INSTRUMENTS-LIABILITY OF INDORSEE FOR COLLECTION FOR FAILURE TO PROTEST.Checks like those in question are to be regarded as inland bills of exchange. Therefore, protest is not essential in order to preserve the rights of antecedent parties (Hughes v. Kellogg, 3 Neb. 194; Dan. Neg. Inst. 926; Chit. Bills [8th ed.], 500, 501), although the holder is required to exercise the same degree of dili NOTES. ACCORDING to the last census there are thirty three thousand one hundred and sixty-three lawyers in the United States who receive $35,000,000 every year in fees. That would give an average professional income of about $1,100 to every lawyer; from which it would appear that the law is still one of the best pay ing professions, if it were not for the fact that the unequal division of the sum total gives to about two-thirds of the whole number hardly enough to pay laundry bills for cleansing their consciences.-Chicago Legal Adviser. The General Term of the New York Common Pleas (May, 1893), in the case of the Fire Department, etc., respondent, v. John Gilmour, appellant, holds that a determination by the fire department of the city of New York, upon the unsworn statement of a subaltern, without opportunity of appearance or defense by the accused party, that he has committed an offense under chapter 463 of the Consolidation Act, is not conclusive of his guilt. In defense of an action to recover the penalty imposed by the statute, the party has a right to contest and disprove the allegation in the complaint that he has violated the statute. An old lawyer used to say that the requirements for going to law were ten: (1) Plenty of money; (2) plenty of patience; (3) a good case; (4) a good attorney; (5) plenty of money; (6) a good counsel; (7) a good witness; (8) a good jury; (9) a good judge; (10) plenty of money. The first, fifth and tenth requirements are the most important. "If you're fond of pure vexation and long procrastination you're just in the situation to enjoy a suit at law." It was a sage remark of Dr. Johnson that "the plaintiff and the defendant in au action at law are like two men ducking their heads in a bucket, and daring each other to remain longest under water."-Albany Times-Union. The number of judges who attend divine service at St. Paul's on the first Sunday in Trinity term is not so large as it used to be. Only seven occupants of the bench listened to Canon Browne's sermon last Sunday afternoon-the lord chief justice, Lord Justice Lindley, Lord Justice Kay, Mr. Justice Stirling, Mr. Justice Kekewich, Mr. Justice Bruce and Mr. Justice Kennedy. At one time it was the custom of the judges to go to the cathedral on the first Sunday in every term - a custom which doubtless originated with, and answered to, the religious services on commission days on circuit. Even now the judges are presented with bouquets on their entrance into St. Paul's.-London Law Journal. It is evident that both Sir Charles Russell and Sir Richard Webster have deeply impressed the president of the Behring Sea Arbitration. Baron Courcel referred in the highest terms to the rhetorical power of the attorney-general's ten days' speech, and at the close of Sir Richard Webster's closely reasoned address he declared that the court was deeply indebted to him for the elaborate study he had made of the case, and expressed his admiration of "the unrestricted and friendly co-operation of yesterday's attorney-general with to-day's attorney-general," adding that the country was indeed to be envied "where party spirit admits of such cordial brotherly association of political rivals when the National interest is at stake."-London Law Journal. It had long been the practice in this State for the courts in their discretion to suspend sentence, but in the recent case of People, ex rel. Benton, against the Court of Sessions of Monroe county, Judge Davy of the Supreme Court held that a statute requiring the court to pronounce sentence after conviction or plea of guilty was mandatory; and that when a defendant had pleaded guilty to an indictment, the court accepting the plea had no power to suspend sentence indefinitely. Notwithstanding this decision, other judges in other parts of the State, and especially in the city of New York, continued to exercise their discretion in this matter. Moreover, several important amendments have been made with respect to the punishment of crimes for which formerly a minimum penalty was fixed by law. For many offenses the penalty is now fixed for a term "not exceeding" so many years, leaving to the trial judge the discretion, in case of a first offense, or where there are strong extenuating circumstances, of sentencing for any time less than that prescribed. A sentence for a nominal period would be practically as favorable to one pleading guilty, as a suspension of sentence. Indeed, it might prove more favorable, for there would not be the possibility of his rearrest at any time for sentence for the same offense. The whole matter has finally been settled by an act passed at the last session of the Legislature, and approved by Governor Flower, which provides that "the court may in its discretion suspend sentence, during the good behavior of the person convicted, where the maximum term of imprisonment prescribed by law does not exceed ten years and such person has never before been convicted of a felony." The power which was formerly assumed by the courts is now expressly sanctioned by statute.-Albany Times-Union. THE LAW'S DELAY. Beats the Nation surely 'Bout this legal way; Seems ter be no limit Ter the law's delay. First there came the inquest, Then the p'leece got active; Jinkins soon they foun', Must of 'spected somep'n 'Cause he'd jumped the town. After awhile they caught 'im, But it took a lot of Law an' Latin, too. Then the P'leece Court tried 'im, "Twasn't settled yet, Not till the gran' jury When the petty jury Tried the facts ter trace Seemed like ancient hist'ry Talkin' 'bout the case. But the judge's sentence Kind o' pitied Jinkins Let 'im have his way, He'll jes' keep appealin' Tell the Judgment Day. Even ef we git 'im Locked up in the pen, Lawyer says he'll have 'im Pardoned out again. In the jail is Jinkins Still we're all a-hopin' -Washington Star. The Albany Law Journal. ALBANY, JULY 22, 1893. CURRENT TOPICS. object of all that was said in the discussion tion of Parliament in the event of the Irish Home Ruie Bill being rejected by the House of Lords renders of some interest the account of the actual functions of British constitutional kingship, which we find in the London Law Times. Prof. Dicey complains of the injury to the study of law produced by the tendency of Blackstone and other less famous constitutionalists to adhere to unreal language, which to obscure or conceal the true extent which took place at the thirty-first University of the tenders both or the queen and the govern Convocation of the State of New York on Friday, July 7, 1893, was the raising of the standard of admission to the bar, though this question was discussed in other phases, as for instance the raising the standard of admission to professional schools and of the requirements necessary before a student can file his certificate of clerkship. Each of these suggestions combine and make the raising of the standard of admission to the bar, practical, yet neither can accomplish this result without the other. To raise the standard of requirements for admission to the professional schools would not raise the standard of admission to the bar, for the reason that those not attending the law schools would be omitted; and again raising the requirements necessary for filing the clerkship certificate would not accomplish the desired effect, as the college graduates would not be affected. Considering the fact that the Court of Appeals made the rules for the admission of attorneys in our State, not only as to the admission examinations but also as to examinations necessary where the applicant is not a college graduate before the student can begin his course of study for the bar, it would seem that the only way that the desired effect can be accomplished would be for the Court of Appeals to issue the remedy. The present system is certainly much superior to that of a dozen or more years ago, but the great imperfection in its working is the unequal result which it reaches by having different boards of examiners who are undirected by a central power and who hence make the standard of admission such as they see fit. Last winter a bill was introduced in the Legislature which would have obviated this unequal admission of lawyers by having a central board who would not only prepare questions, but conduct the examinations themselves in each department, under the direction of the Court of Appeals. We note that the Michigan State Bar Association at its recent meeting recommended the passage of substantially the same bill in their State, and we cannot but feel that the true solution of this question is in line with the bill above referred to, which was the result of recommendations made by the New York State Bar Association last winter. As we all are striving to elevate the standard of our profession so it would be in line with that effort to assist in raising the standard of admission and make it uniform as well as thorough. The rumor that differences of opinion exist between Queen Victoria and Mr. Gladstone in reference to the question of the immediate dissolu. VOL. 48-No. 4. ment. Having drawn attention to Blackstone's habit of applying old and inapplicable terms to new institutions, and especially of "ascribing in words to a modern and constitutional king the whole, and perhaps more than the whole, of the powers actually possessed and exercised by William the Conqueror." Prof. Dicey observes: "No one indeed but a child fancies that the queen sits crowned on her throne at Westminster and in her own person administers justice to her subjects. But the idea entertained by many educated men that an English king or queen reigns without taking any part in the government of the country, is not less far from the truth than the notion that Queen Victoria ever exercises judicial powers in what are called her courts." (See Dicey's Law of the Constitution, 7-11.) Mr. Grote, the historian of Greece, who was for many years a member of the House of Commons, when comparing Greek with English ideas respecting government, falls into the curious error-the opposite extreme to Blackstone's-of regarding the British constitutional king as a cipher taking no part in the government of the country. "The theory of a constitutional king," writes Mr. Grote, "especially as it exists in England, would have appeared to Aristotle impracticable; to establish a king who will reign without governing-in whose name all government is carried on, yet whose personal will is in practice of little or no effect, exempt from all responsibility without making use of the exemption, receiving from every one unmeasured demonstrations of homage which are never translated into an act except within the bounds of a known law, surrounded with all the paraphernalia of power, yet acting as a passive instrument in the hands of ministers marked out for his choice by indications which he is not at liberty to resist. This remarkable combination of the fiction of superhuman grandeur and license with the reality of an invisible strait waistcoat, is what an Englishman has in his mind when he speaks of a constitutional king." (3 Grote's History of Greece, 17-18.) The widely differing descriptions of British constitutional kingship given by Blackstone and Mr. Grote are characterized alike by their unreality. Mr. Gladstone, who styles himself as "one whose life has been greatly absorbed in working with others the institutions of his own country" (1 Gleanings of Past Years, 212), gives it as his opinion that there is no distinction more vital to the practice of the British Constitution, or to a right judgment upon it, than the distinction between the sovereign and the crown. The crown has large prerogatives, endless functions essential to the daily action, and even the life of the State. To place them in the hands of persons who would be mere tools in a royal will would expose those powers to constant unsupported collision with the living forces of the nation, and to a certain irremediable crash. They are therefore intrusted to men who must be prepared to answer for the use they make of them. This ring of responsible ministerial agency forms a fence around the person of the sovereign which has thus far proved impregnable to all assaults." (1 Gleanings of Past Years, 234.) The development of the British Constitution from the Revolution of 1688 till the present time may be said to consist mainly in the practical transference of the various prerogatives of the crown from the sovereign to a cabinet responsible to Parliament, and through Parliament to the people at large. "I may," says Mr. Freeman, "mark a change in language which has happened within my own memory, and which, like other changes of language, is certainly not without its meaning. We now familiarly speak in Parliament and out of Parliament of the body of ministers actually in power, the body known to the Constitution, but wholly unknown to the law by the name of the government.' We speak of 'Mr. Gladstone's government' or 'Mr. Disraeli's government.' I can myself remember the time when such a form of words was unknown, when 'government' still meant government by king, lords and commons,' and when the body of men who acted as the king's immediate advisers were spoken of as 'ministers' or the ministry." (Growth of the English Constitution, 123-124.) Ample scope however has been left under the Constitution for the exercise by the sovereign, to use the words of Mr. Gladstone, of "a direct and personal influence in the work of government." "To state the whole matter shortly," | says Mr. Bagehot, "the sovereign has, under a constitutional monarchy such as ours, three rightsthe right to be consulted, the right to encourage, and the right to warn." (English Constitution, 75.) This passage from Mr. Bagehot's writings was quoted with approval in debate in the House of Commons by Mr. Courtney on the 13th of May, 1879, and was accepted by Sir Stafford Northcote, who was then leader of the House of Commons, as a correct description of the functions of the crown. (Hansard, 246, 3d series, 254, 310.) "The wearer of the crown, 19 says Mr. Gladstone, "is entitled on all subjects coming before the ministry to knowledge and opportunity of discussion unlimited save by the iron necessities of business. Though decisions must ultimately conform to the sense of those who are responsible for them, yet their business is to inform and persuade the sovereign, not to overrule him. * * * The monarch has more than one advantage over his advisers. He is permanent, they are fugitive; he speaks from the vantage ground of a station unapproachably higher; he takes a calm and leisurely survey, while they are worried with the preparatory stages, and their force is often impaired by the pressure of countless detail." (1 Gleanings of Past Years, 232.) If differences should arise between the crown and the cabinet with reference to a dissolution of Parliament, how, under the arrangements of the Constitution, could the difficulty be overcome? "The king, too," says Mr. Bagehot, "possesses a power according to theory for extreme use on a critical occasion, but which he can in law use on any occasion. He can dissolve; he can say to his minister, in fact if not in words, This Parliament sent you here, but I will see if I cannot get another Parliament to send some one else here.' "" (English Constitution, 80.) Mr. Gladstone has himself however supplied an admirable answer to this question. In an article entitled "Kin Beyond the Sea," which appeared in the North American Review for September, 1878, and which was written with the object of contrasting the British with the United States Constitution, Mr. Gladstone says: "In the face of the country the sovereign and the ministers are an absolute unity. The one may concede to the other, but the limit of concession by the sovereign is at the point where he becomes willing to try the experiment of changing his government; and the limit of concession by the ministers is at the point where they become unwilling to bear what in all circumstances they must bear while they remain ministers, the undivided responsibility of all that is done in the crown's name. (1 Gleanings of Past Years, 235.) Again, "There is," says Mr. Gladstone, "one great and critical act the responsibility for which falls momentarily or provisionally on the sovereign. It is the dismissal of an existing ministry and the appointment of a new one. Unconditionally entitled to dismiss ministers, the sovereign can, of course, choose his own opportunity. He may defy the Parliament if he can count upon the people." (1 Gleanings of Past Years, 230, 231.) * * * The London correspondent of the New York Sun writes: "The universal fault of policemen, which is worse here than in America, of limiting themselves to efforts to convict the person whom they suspect of crime, has been sharply rebuked this week by a prominent judge. The wife of a man named Noel was found murdered. The police accused the husband. Not a particle of direct evidence was found. No trace even of the pistol with which the murder was committed was obtained. The police produced a great mass of testimony convicting the husband of various faults but of no crimes during his past life. The magistrates admitted the irrelevant stuff at the preliminary examination, and committed him for trial. resembled the Borden mystery, but there were by no means so many suspicious circumstances involving the prisoner. Judge Grantham of the upper court delivered a sweeping, scathing rebuke to both the police and the magistrates, and ordered the grand jury to find no bill. The case has also clearly defined the right to examine accused perThe court holds that the police have no right to caution a prisoner as to his right to refuse to answer and then to question him. This practice is sons. The case |