settlement of all mutual demands, the presumption is that such settlement shall be regarded as a final wiping off of the slate. The rule that payment of a less sum in satisfaction of a larger sum is not binding, for want of consideration only applies when the larger sum is liquidated, and when there is no consideration whatever for the surrender of a part of it, and that the rule itself is to be considered so far with disfavor as to be confined strictly to cases within it; that the payment of a specified sum conceded to be due, by including certain items, but excluding disputed items, on condition that the sum so paid shall be received in full satisfaction, will be sustained as extinguishing the whole sum, where the aggregate amount is in dispute. Chief Justice Fuller refers to Johnson v. Brannan, 5 Johns. 268, in which the ancient rule that where a liquidated sum is due the payment of a less sum in satisfaction thereof, though accepted as satisfaction, is not binding as such for want of consideration, is characterized as 'that rigid and rather unreasonable rule of the old law.' He also refers to the disapproval of Mr. Justice Nelson of the principle of such rule in Kellogg v. Richards, 14 Wend. 116. Many other cases cited by the Chief Justice, including Brooks v. White, in the Supreme Judicial Court of Massachusetts (2 Metc. 283), favor the doctrine that the ancient rule is not to be extended beyond its precise import; and whenever the technical reason for its application does not exist, the rule itself is not to be applied. Hence, judges have been disposed to take out of its application all those cases where there was any new consideration on any collateral benefit received by the payee, which might raise a technical legal consideration, although it was quite apparent that such consideration was far less than the amount of the sum due. The Civil Code of California provides: Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing, for that purpose, though without any new consideration, extinguishes the obligation. Several other States have adopted statutory provisions substantially in accord with that of California. They embody the common sense, and not in any sense immoral, spirit of the present day to effectuate agreements which were intended to be of complete accord and satisfaction, regardless of the technical form in which they are couched.'"

6

Professor Thayer, Choate, and Jabez Fox, Webster, Professor of Evidence in the Boston University Law School, have had a tilt in the Harvard Law Review, under the heading of "Law and Logic." Professor Fox, in May, criticises a passage in Professor Thayer's work, "Preliminary Treatise on Evidence," in the following lines:

"To hold that logic can answer the questions which judges are compelled to answer is giving to this tool of the reasoning faculty a power which its makers never claimed for it, and here lies, as it seems to me, the chief trouble with Professor Thayer's distinction between law and logic, as indicated in the following sentence: Admissibility is determined, at first, by relevancy-an affair of logic and experi

ence, and not at all of law; second, but only indirectly, by the law of evidence, which declares whether any given matter which is logically probative is excluded' (Preliminary Treatise on Evidence, 269).”

After a discussion of the decision in Grand Trunk Railway v. Richardson, 91 U. S., 469, which Professor Thayer cites as one which "involves no point at all in the law of evidence," because evidence to show the practice of other railway companies of having no watchmen at certain crossings was offered to excuse defendant's neglect to have a watchman at one of its own crossings, and was rejected as irrelevant, Mr. Fox continues:

"On what ground is this case banished from the domain of law? Because the court has excluded evidence which the author considers

logically irrelevant. If the author had considered the evidence to be relevant, then, if I understand him aright, the decision would have become a part of the law of evidence, for the law determines, as among probative matters, matters in their nature evidential—what classes of things shall not be received' (p. 264). It appears, then, that when the court decides that a matter logic concerning the relevancy of evidence.' So far as I perceive the meaning of this passage, it seems to be a senseless opinion. The law of evidence begins at least its main function begins-when it excludes matters logically probative, for one or another of the many practical reasons that have shaped its principles and its rules. That irrelevant matter is to be excluded is matter of course; that is to say, such matter is outside the very notion of 'evidence,' in a rational system of evidence like ours."

Brother Fox had the courage of his convictions when he criticised Professor Thayer's statement of so fundamental a doctrine as that contained in the lines which he quotes from his book. But he undoubtedly made the mistake, pointed out by Professor Thayer, of saying "relevancy" when he meant "admissibility." The only possible test of relevancy is whether or not the fact sought to be proved would have any logical bearing on the case as stated in the proponent's pleadings. A fact which, if proved, would not affect the decision in any way is not "relevant,” and, therefore, evidence to prove that fact is not "admissible." No particular rule of evidence, so called, would be applied by the judge who excluded such evidence. Admissibility is, therefore, determined primarily by logical relevancy.

Professor Fox attempts to dissociate law from logic when he says that a rule of evidence is not based on the canons of logic because it excludes matter logically relevant. At first sight his position may seem to be sound. But we must not forget than in every trial ordinary facts such as relate to our everyday life, have to be proved, and that it is theoretically impossible to prove such a fact as definitely and

conclusively as we can prove a mathematical proposition. If we were omniscient and had time to examine and weigh all matters relating to the proving of a fact, we might arrive at a logically perfect conclusion. But in courts of law we are dealing with "human conduct and all its elements of fraud, which if logically relevant is admissible, or that a matter which is logically irrelevant is inadmissible, it is deciding no point of law, and that the law of evidence begins only when the courts either unconsciously or purposely violate the rules of logic concerning the relevancy of evidence."

To this criticism Professor Thayer replies as follows in the June number:

"This brings me to the main point, viz., what the critic says as to the theory of the law of evidence which is put forward in the book referred to. That theory is that our law of evidence is a rational system, as contrasted with certain older modes of proof; that in admitting evidence in our law, it is always assumed to be logically probative, i. e., probative in its own nature, according to the rules that govern the process of reasoning; that the considerations determining this logical quality are not fixed by the law, and that, so far as legal determinations do proceed merely on such considerations, they do not belong to the domain of law; that the law of evidence, however, excludes much which is logically good, that is to say, good according to the tests of reason and general experience; and that the rules of exclusion make up the main part of the law of evidence. The reasons for these views, and the details and qualifications of them, are not for this place; they are indicated in the book referred to.

"Now this book uses the word 'relevancy' merely as importing a logical relation, that is to say, a relation determined by the reasoning faculty. The word 'admissibility' is the term which it applies to the determinations of the law of evidence. The critic seems not to observe this; and his remarks, for this reason, are in some respects inapplicable to the text that he is dealing with; as when he says that 'logic furnishes no test of relevancy!'

"I confess that I do not know what he means when he imputes to me the doctrine that the law of evidence begins only when the courts, either unconsciously or purposely, violate the rules of inadvertence, wilfulness and uncertainty.' If all facts which might seem logically probative were admitted in evidence, our trials would be endlessly protracted and our juries endlessly confused. Verdicts would be no nearer the ideal standard of justice than they are to-day.

"We also know, from experience, that there is a large class of evidence, relevant in the strict sense of the word, which would never prove the facts in support of which it is offered, with sufficient definiteness, or which in itself is so open to the suspicion of fraud or mistake that no reasonable man would or should give it credence. We have therefore made rules excluding this class of evidence. These rules, with their exceptions, constitute the law of evidence."

A rule of evidence is based strictly on rules of logic. We are trying to achieve practical results with the necessarily imperfect human means at our disposal. The constitution of our courts of justice renders necessary the exclusion of evidence which is too remote; otherwise, as we are forced to admit by a course of logical reasoning based on a vast number of facts which may be grouped under the term "experience," we would waste time, and arrive at no better average result. The frailties and imperfections of the human mind make it necessary to exclude a great deal of evidence which would never prove every fact to the satisfaction of a jury, or which is too much open to suspicion. Logical reasoning, based on experience, has taught us the necessity of excluding this kind of evidence. There is no logical fallacy in taking into consideration the strong "antecedent probability" of the untruth or insufficiency of a statement.

Had Mr. Fox said that the rules of evidence seem to violate the canons of logic he would have come nearer the truth.

F. v. B.

THE JUSTICE OF THE PEACE IN NEW JERSEY. Some time ago a Paterson justice, fond of his glass, had a counterfeiting case. The police were working on it with him, and had left all the evidence, consisting of a pint of bogus quarter-dollars, in his hands. One day the scent grew warm. More of the coin had appeared. Two detectives were hot on the trail. They started for the justice's office, but stopped twice on the way to drink. In each saloon one of the bogus quarters was received in change, and the sleuths began to wonder. They said nothing, but hurried on to the office of the magistrate. That dignitary sat in a great arm chair, unmindful of the world about him. He greeted them inarticulately, politely asked, "What are you going to have?" and fell asleep. The detectives began to search, and soon found the box labelled "Counterfeit quarters." It was empty! The magistrate had blown in all the evidence and the case never came to trial.

Shortly afterward the same justice accepted $300 cash bail from an accused man, and in like manner presented it to the saloons of his neighborhood. It lasted for some time, and the judge was a good fellow for an unusually long period. He was finally sobered, however, by the appearance of two officers. The accused man had been discharged by the grand jury and wanted his money. It was only the generosity of his friends that kept the judge from going "doing time."-New York Sun.

Chapter Letters.

NEW YORK PHI DELTA PHI CLUB.

The New York Alumni Club held its first meeting after the summer vacation at the Hotel Marlborough, New York city, October 8th. Fifty odd alumni of the various chapters sat down to the dinner. The president of the club, Prof. Charles Thaddeus Terry, of the Columbia Law School, presided. Hon. Wm. D. Dickey, Justice of the Supreme Court of New York, was one of the invited guests. The address of the evening was by Hon. John Woodward, Justice of the Second Department of the Appellate Division of the Supreme Court on "The Legal Right of a State to Limit the Suffrage." The address will appear in full in the BRIEF. The next formal meeting of the club will be held Monday evening, November 12th.

Phi Delta Phi men in New York and vicinity, who wish to know about the club, membership, etc., should write to the secretary, W. E. Andrews, 729 Fremont avenue, New York city.

CHOATE-HARVARD LAW SCHOOL.

It gives me much pleasure to write that Choate chapter opens this year under most favorable conditions. Although we had the misfortune to lose two of our members of the third-year class, Bro. Wood and Bro. Gay, by their not returning to the school, we now have our full quota of twenty members, having filled the vacancies by the election of H. Fletcher and T. Hoague. Our members represent, besides Harvard, graduates from other colleges, a circumstance which adds much to the pleasure of our gatherings. Adhering to precedent in Choate chapter we expect to make our meetings this year occasions of much conviviality, while at the same time, also, adhering to precedent, we expect to listen to many interesting and well-written papers upon legal subjects.

The annual announcement of the law school shows several changes. Graduates from other law schools are only admitted as special students if their school had a three-year course, eight months' instruction yearly; a student must pass four full courses yearly to ob