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the life time o. the debtor. Deforest v. Hunt, 8 Conn. 179.

Such an acknowledgment is, however, not sufficient in the case of an infant, who must make a direct promise after coming of age to establish a contract made during minority; and where an infant had given his promissory note for a valuable consideration, but not for necessaries on which he had paid a part before coming of age, and after coming of age made his will, in which he directed his "just debts" to be paid, it was held that his executors were not liable. Smith . Mayo et al. Exrs., 9 Mass. 62. The expression in a will "all my just debts" includes all the testator's debts whenever and wherever contracted, and therefore includes a debt contracted by him after the making of the will and contracted in a country other than that of his domicil and secured upon property situated in that other country. The burden of showing that the words have a less extensive meaning lies on him who asserts their restricted operation. Maxwell v. Maxwell, L. R., 4 H. L. 506.

That

to formal legal proceedings. something more was meant by the statute in the use of these words than what relates to the mere form in which the applicant's papers are prepared in such cases is indicated by the preceding part of the sentence referring expressly to the petition and account. The form of the petition is prescribed in section 4 and the form of the oath in section 5. These formalities must be complied with, but the requirement that the proceedings must be just and fair' must obviously refer to something extrinsic to the formalities of the petition, account, schedule or affidavit. It can not relate to the general dealings and transactions of the applicant before his imprisonment, because under the nonimprisonment act, and now under the code, it is a ground of arrest and imprisonment that the defendant fraudulently contracted the debt in question or has fraudulently concealed or disposed of his property. The very ground on which the original arrest and imprison. ment was authorized, as in this case, where the debt was contracted in a judiciary capacity, cannot present the ground on which the court may adjudge the proceedings of the imprisoned debtor not just and fair and refuse his discharge. The allegation that the proceedings of the debtor are not just and fair must be based upon and refer to some other class of facts or transactions of the debtor. The policy and spirit of the insolvent law is to discharge debtors from imprisonment on their giving up honestly all their property to their creditors. The affidavit which applicants under this article are required to make is, I think, a key to the meaning of the words in the connection in question. It is as follows: "I What is as follows: "I (the petitioner) do swear that the within petition and account of my estate and of the charges thereon are in all respects just and true and that I have not at any time or in any manner disposed of or made over any part of my property with a view to the future benefit of myself or my family, or with an intent to injure or defraud any of my creditors.' This affidavit must be true in its letter and spirit or the proceedings of the applicant cannot be just and fair within the sense and meaning and true intent of the statute. The applicant must annex to his petition a just and true account of his estate and of the charges thereon. The court must be satisfied on this point, that the exposition of his affairs

Just and Fair.—The meaning of these words as used in the New York statute, entitled "of voluntary assignments by a debtor imprisoned in execution in civil causes" (2 R. S., ch. 5, art. 6, since repealed), was discussed at length in the case of a petitioner confined in jail as a public defaulter. The court, DARWIN SMITH, J., in refusing his discharge, used the following language: "The statute declares that if the court is satisfied that the petition and account of the applicant are correct and that his proceedings are just and fair, it shall order an assignment to be made of his property and that he be discharged from imprisonment. What is the precise force and meaning of the words of the statute proceedings just and fair seems to be a good deal in doubt and was much discussed on the argument. The same phraseology occurs in the act to abolish imprisonment for debt, and has there, as well as in this statute, doubtless embarrassed many by its indefiniteness. The word proceeding ordinarily relates to the forms of law, to the modes in which judicial transactions are conducted. It seems to have been used inartificially in this place and in an untechnical sense. It has no appropriate connection with the words just and fair. These words apply to the moral qualities of acts, dealings and transactions, but not fitly

which the petitioner makes is in all respects full, honest and truthful, that nothing essential for the creditor to know has been intentionally kept back, concealed or suppressed. And in respect to the rest of the affidavit, that 'I have not at any time or in any manner disposed of or made over any part of my property with a view to the future benefit of myself or my family, or with an intent to injure or defraud any of my creditors, the court must be satisfied that no such disposition of property has at any time been made by the debtor which is then in force or subsisting; that no provision for the future use of the debtor or his family has been made of any property owned by the debtor at the time when the debt which formed the basis of the imprisonment was contracted. The word future in the affidavit must relate to the time of the making the affidavit and not to any other time. The affidavit refers to property disposed of with a view to the future benefit, that is, benefit after his discharge or after the application. The meaning is that nothing in the shape of property, rights or interest in property, legal or equitable, existing at the time of the application shall be kept back or withheld from his creditors. This is This is the condition upon which the law interposes to discharge the debtor from imprisonment. If his affidavit is ir any respect untru-if the account of his property is in any essential respect incorrect in a matter or manner implying that the debtor purposely concealed any portion of his property and did not intend to make a full and complete disclosure in respect to it, but designedly kept back something for the future benefit of himself or family, or intentionally withheld any important or proper information in respect to its condition or in respect to charges or liens thereon, --then his proceedings will not be just and fair within the true intent of this statute;" and the court refused the debtor's discharge because being a public defaulter as county treasurer he had omitted to account or explain in any manner as to what had become of the money, and he had omitted to include in his inventory annexed to his petition a large amount of property of which he was possessed about the time of his failure, most of which was real estate which a short time previously he had conveyed to two friends. People v. White, 14 Howard's Prac. Rep. (N. Y.) 498.

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This view of the meaning of just and fair was followed by J. F. DĎALY, J., who held that the proceedings of the debtor are not just and fair "in the case (1) of the removal of his own property with intent to defraud his creditors or to benefit himself or his family, although neither he nor his family have been benefited by the act-the creditors nevertheless having been deprived of the property, (2) where the debtor has procured from the creditor at whose suit he is imprisoned property by fraud. even if he has spent the proceeds in a way that would be unobjectionable if they were his own and if by loss or accident he is deprived of them, (3) where the debtor has combined or united with others to fraudulently obtain the property of the creditor at whose suit he is imprisoned even if such others got the proceeds of the fraud and he got none. But, on the other hand, if the prisoner, while legally liable for the debt or the damage growing out of the fraud or tort was yet innocent of a guilty intent and either received none of its fruits or properly accounts for what he got, the tort in question would be no bar to his di charge." Matter of Roberts, 59 Howard's Prac. Rep. (N. Y.) 136; s. c., 8 Daly's Rep. 95. See also Matter of Finck, 59 Howard's Prac. Rep. 145, Matter of Watson, 2 E. D. Smith (N.Y.) 429, Matter of Fowler, 59 Howard's Prac. Rep. (N. Y.) 148, in re Haight, 11 N. Y. Civil Procedure 227; Matter of Brady, 69 N. Y. 215.

Just and Reasonable -This phrase has been frequently used and construed both in England and the United States in regard to the contracts made by common carriers limiting their liabilities. The leading American case upon this subject is Railroad Company v. Stockwood, 17 Wallace U. S.) 357. In this case the court, BRADLEY, J., laid down the following rules. First, that a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law, secondly, that it is not just and reason able in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of him self or his servants, but that it is just and reasonable that the common carrier should not be responsible where the loss is caused by no fault of his own, or where the value of the articles has been concealed from him and therefore such exemptions are proper to be allowed.

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The whole question is fully examined and this case in particular treated at length in CARRIERS of Goods, 2 Am. & Eng. Encyc. of Law 818; see also CARRIERS OF LIVE STOCK, 3 Am. & Eng. Encyc. of Law 11.

The English law upon the subject is statutory and will be found in CARRIERS OF GOODS, supra.

A defendant, in a bill to foreclose a mortgage, made a settlement by which a portion of the debt was paid and he gave his note for the remainder. This was done after the papers necessary for the foreclosure had been prepared and the defendant signed the following agreement: "I do hereby agree to pay such a sum of money as the Hon. Charles H. Ruggles shall say is a just and reasonable compensation for the services rendered," etc. Payment being refused action was brought on this writing. The plaintiff's attorneys made out a bill of costs which Judge Ruggles taxed as vice chancellor at $27.90, and it appeared on the trial that the charges in the bill were the compensation allowed by law for the services specified in the bill. Judgment was entered for the plaintiff, BRONSON, C. J., saying: "I am of opinion that the words in the agreement, a just and reasonable compensation for the services rendered,' by the solicitors mean neither more nor less than the fees or compensation allowed by law for the services. Nothing was claimed but taxable costs and no question was made but that such costs ought to be paid. The objection to the bill was that the costs were too high. And then it was agreed that Judge Ruggles should decide. Although it would have been more plain if the parties had said costs to be taxed by Judge Ruggles, still it seems reasonably clear that such was their meaning." Culley v. Hardenbergh, 1 Denio (N. Y.) 50S.

this condition the defendant appealed and the court held the imposition of this condition error, MURPHY, P. J., saying: "Leave to amend pleadings necessary to present an issue on the merits of a cause is no longer discre tionary with the court but is the legal right of the party. . . In this case there is no objection to grant leave because the same was not asked for in apt time, for it appears that immediately upon the announcement of the court that the demurrers were sustained to the pleas filed, appellant moved for leave to file amended pleas... This motion the court refused to allow except on the condition above stated. know of no rule of practice by which the court had a right to impose such terms. We have been referred to no case, nor have we been able to find one. showing that it had any such power by the common law; nor are we aware of any statute authorizing such a practice.

We

We think terms 'just and reasonable' as employed by the legislature in the above section of the Practice act obviously has refer

to the rule of practice then existing by the common law, and con templated no other or different terms than would be just and reasonable judged by that practice. By the common law no such terms as here required were imposed as a condition to granting leave to amend, and to hold that it might be imposed here is to sustain a principle which, carried to its logical sequence, would permit the opinion of the court below to impose condition after condition upon parties until a statute wise and generous in provision and spirit shall be frittered. away and defeated entirely. It is urged by appellee that the appellant was in default after demurrers were sustained to his plea. This position we think untenable. But for the statute giving appellant the legal right to amend there might be force in the position, but it is not perceived how it could be in default so long as it had the legal right to amend. If by the law the right is guaranteed to it we are unfamiliar with any principle of law by which it can be declared to be in default. We think that under the statutes of this State leave to amend as in this case is a matter of right and without terms at all." Empire Fire Ins. Co. of Chicago v. The Real Estate Trust Co., 1 Ill. App.

A defendant having filed two pleas which were demurred to, and the demurrer sustained, moved the court for leave to file amended pleas under the 24th section of the Illinois Practice act, which provides that "at any time before final judgment in civil suits amendments may be allowed on such terms as are just and reasonable." This the court granted, but upon the condition only that the defendant should first present an affidavit in which should be set out the facts in detail, showing a meritorious defence in said cause. From 391.

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JUSTICE.-Conformity to what is right, that is to divine and

natural law.1

1. Suit being brought as for money loaned, the evidence showed that the plaintiff had deposited with the defendant a certain sum of money to keep for him. The court held that the action was not supported by this evidence and that a demand was necessary to be made for money specially deposited for safe keeping before suit is brought, and reversed the judgment entered in the lower court for the plaintiff. Counsel for the plaintiff having asked for a rehearing the court adhered to its former judgment, ROBERTS, J., saying: "Each party presents a case, strongly demanding the claims of justice in its behalf, abstractly considered. The plaintiff below shows that he has money in the hands of the defendant which he has the right to demand as his own, and urges that this is the matter of substance to be regarded by the court; that whether the proof showed the transaction to be, strictly speaking, a loan of money or a special deposit of bank bills, the substance of the matter is in justice the same, that if it be a special deposit a previous demand was only material in reference to costs, the suit being a demand; and if a demand was necessary, the failure to allege it on the part of the plaintiff is cured by its being admitted in one of the pleas of defendant, although denied generally in another. This, it is admitted, presents a strong case, invoking justice in its behalf, and unless the plain and inflexible rules of law stand in its way the natural inclination of every mind must be to yield to it. On the other hand, the defendant claims damages to a much larger amount than the money of plaintiff in his hands, to which he is entitled by reason of the trespass of plaintiff upon his property, and that plaintiff being a transient person and not able to respond in damages for said trespass, he will entirely lose the damages to which he is entitled, if he is compelled to pay out the money in his hands, and that, therefore, his retention of the money is his only means of redress. Surely the defendant may invoke the claims of justice (abstractly considered) in his behalf, with a force and plausibility not surpassed by the case of the plaintiff. Although the counsel upon both sides rely upon the rules of law as respectively presented by them, it is obvious

that the great argument, whether expressly developed or not, by which those rules are sought to be discovered, interpreted and enforced, consists in an appeal to the sense of justice of the court. The opinion of the court in this case does not yield to the force of that appeal. Having written it, I avail myself of the opportunity afforded by this application to present my views upon the foundation and force of this appeal to the sense of justice of the court, whether used as an influencing consideration in interpreting and enforcing the rules of law or directly urged as the basis of judicial action. judicial action. A frequent recurrence to first principles is absolutely necessary in order to keep precedents within the reason of the law. "Justice" is the dictate of right, according to the common consent of inankind generally, or of that portion of mankind who may be associated in one government, or who may be governed by the same principles and morals. Law is a system of rules, conformable, as must be supposed, to this standard, and devised upon an enlarged view of the relations of persons and things as they practically exist. "Justice" is a chaotic mass of principles. Law is the mass of principles classified, reduced to order and put in the shape of rules, agreed upon by this ascertained common consent. Justice is the virgin gold of the mines, that passes for its intrinsic worth in every case, but is subject to a varying value, according to the scales through which it passes. Law is the coin from the mint, with its value ascertained and fixed, with the stamp of government upon it, which insures and denotes its current value. The act of moulding justice into a system of rules detracts from its capacity of abstract adaptation in each particular case, and the rules of law, when applied to each case, are most usually but an approximation to justice. Still mankind have generally thought it better to have their rights determined by such a system of rules than by the sense of abstract justice, as determined by any one man, or set of men, whose duty it may have been to adjudge them. Whoever undertakes to determine a case solely by his own notions of its abstract justice breaks down the barriers by which rules of justice are erected into a system and

thereby annihilates law. A sense of justice, however, must and should have an important influence upon every well organized mind in the adjudication of causes. Its proper province is to superinduce an anxious desire to search out and apply, in their true spirit, the appropriate rules of law. It cannot be lost sight of. In this it is like the polar star that guides the voyager, although it may not stand over the port of destination. To follow the dictates of justice, when in harmony with the law, must be a pleasure; but to follow the rules of law, in their true spirit, to whatever consequences they may lead is a duty. This applies as well to rules establishing remedies as to those establishing rights. These views will, of course, be understood as relating to my own convictions of duty and as being the basis of my own judicial action." Duncan v. Magette, 25 Tex. 245, 251. Such also is the reasoning of MR. JUSTICE WALKER, in the dissenting opinion in the case of Borden v. State, 6 English (Ark:) 553, in which he says: "In Rex v. Clegg, 1 Strange 475, FORTESQUE, J., said: 'It is certain that natural justice requires that no man should be condemned without notice.' In Bloom v. Burdick, 1 Hill (N. Y.) 130, BRONSON, J., said: 'It is a cardinal principle in the administration of justice that no man can be condemned or divested of his rights until he has had the opportunity of being heard.' In Bustard v. Gates, 4 Dana (N. Y.) ROBERTSON, C. J., said: 'It is a general rule of the common law and of common sense, as well as of common justice, that a court has no jurisdiction to render a judgment against a person who has had no notice whatever of the proceedings against him' In the case of Mary, 3 Peters Cond. Rep. (U. S.) 312, MARSHALL, C. J., said: 'But notice of the controversy is necessary in order to become a party. And it is a principle of natural justice, of universal obligation, that, before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him.' In Boswell's Lessee v. Otis et al., 9 How. (U. S.) 350, McLEAN, J., said: 'No principle is more vital to the administration of justice than that no man shall be condemned in his person or property without notice and an opportunity to make his defence.' In the face of these authorities, embracing the opinions of the most dis

tinguished and profound jurists in the highest English and American courts, including their latest published opinions, can it be said that this right to be heard in defence of property is not a 'natural right of universal obligation'? And if such, then it is evident that such notice is indispensably necessary to the validity of a judgment against the person."

The majority of the court, on the other hand, in the same case, appear to have regarded "justice" as that which is due to man, not as some divine or natural right, but only under the obligation of some human law, SCOTT,J.,saying, after the citation of the authorities given above, "The same author (Burlamaqui) defines 'justice in a judicial sense' to be 'nothing more or less than exact conformity to some obligatory law;' and, therefore, he says that 'all human actions are either just or unjust as they are in conformity to or in opposition to law.' The doing of justice, then, in a judicial sense, is the performance towards another of whatever is due to him in virtue of a perfect and rigorous right, the execution of which he may demand by forcible means unless we satisfy him freely and with good will. While, on the other hand, the performance of duties to another only in virtue of an imperfect or nonrigorous obligation which cannot be insisted on by violent methods. but the fulfilling of which is left to each man's honor and conscience, are comprehended under humanity, charity or benevolence in opposition to justice. Now according to these principles and definition, which we have laid down from an author of the most unquestionable authority on these points, if it be contrary to natural justice that a man should be condemned without notice and an opportunity to be heard, as is said by FORTESQUE, such is because it is a principle of natural law, as is said by JUDGE MARSHALL, that before the right of an individual can be bound by a judicial sentence he shall have notice, actual or constructive, of the proceedings against him. Because otherwise there could be no nonconformity to an obligatory law to bring such an action within the definition of injustice. Such a natural law is then assumed by the remark of FORTEsQUE and its existence is affirmatively asserted by JUDGE MARSHALL with the further remark that it is of 'universal obligation. We would feel that it was

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