include in the term "trial by jury" all the rules of procedure by which the jury reaches a verdict, thus forever making it impossible not only to abolish the jury but to change the rules of procedure governing their action. On this point the Court said:

"Addressing ourselves, then, to the question of what was this trial by jury as then fixed by the common law of Great Britain, it will be seen that the jury of the common law of England, consisted of 12 men, that it heard all the evidence pertinent to the issue raised by the pleadings, it returned a single verdict, and upon such verdict judgment was entered, and if a new trial is granted it is a trial of the whole case."

The Constitution preserves the institution of the jury, not the procedure by which it does its work. The jury is a body of twelve disinterested men to find the truth (vere dic tum) concerning certain facts submitted to them. That is all that is guaranteed by the Constitution. The procedure by which the jury reached such facts has changed from age to age, but the institution itself has remained and it would destroy the effectiveness of this great institution if the Court should hold that the exact procedure in force in 1775 or 1789 (it is hard to tell which date the Court holds to be standard) by which a jury in England reached its results is also preserved inviolate.

It is interesting to note that all students of the jury agree on the facts that the distinctive feature of jury trial is the ascertainment of facts. Mr. Chamberlayne, in his new work on Evidence (Vol. I, p. 367), after thoroughly reviewing the history of the jury from the earliest times declares that "the special function of the iury, according to the established usages of the English law, is limited to the ascertainment of what is the truth as to a particular proposition of fact which the parties, through the operation of a preliminary branch of procedure, called, pleading, have seen fit to submit to their decision." Prof. Thayer, in his Preliminary Treatise on Evidence, shows that the jury in its present significance is a comparatively modern institution. Up to the time of the Tudors it was a body of witnesses who decided the case on their own knowledge. He also shows that special verdicts were common. "The Knights may either say directly and shortly that one party or the other has greater right, or merely set forth the facts and thus enable the justices to say it-what we call a special verdict." Thayer Prel. Treat. 63. There was also required of common-law jurymen a property qualification. Fortescue De Landibus Le

gum Angliae, Secs. 25 and 26 (Amos Tr.). Is this requirement preserved in our Constitution?

We think it is clear that to preserve the right of trial by jury the framers of the Constitution did not preserve the rules governing the selection, the right of challenge, the qualifications imposed, the methods of introducing the evidence, the manner of reaching a verdict-all this was mere matter of pro'cedure, much of which was, even at the time the Constitution was written, in process of changing. It was the jury itself-the body of twelve men selected from the community -who were to determine facts submitted to them by the Court under the pleadings. is not an enforcement of the right of trial by jury, but rather an effort to increase its effectiveness, to provide that on retrial only such issues shall be determined which the Court finds to have been erroneously decided on the first trial.

It

RIGHT OF CLIENT TO DISCHARGE HIS ATTORNEY WITHOUT BEING LIABLE FOR DAMAGES.-Attorneys are often misled on the point of the inviolability of contracts with clients That in such a contract of employment there is always an implied condition that the client may discharge the attorney and terminate the contract at will without cause, is made clear by the recent case of Lawler v. Dunn, 176 N. W. 989.

In this case the plaintiff, an attorney of St. Paul, contracted with defendant to defend him in a criminal suit, stipulating that he should receive $3,000 for trying the case before a jury, and a reasonable value for his services in presenting and arguing the case on appeal, if necessary. The case was lost in the trial court and defendant discharged his attorney and hired another. At the time of the discharge plaintiff had simply filed a motion for a new trial and an arrest of judgment, as a preliminary to an appeal. He demands full value for services rendered and damages for breach of contract. The Supreme Court of Minnesota, holding that the attorney was not entitled to damages for breach of contract of employment, said:

"The right of a client to discharge his attor ney at his election, with or without cause, is universally recognized by the authorities (Thornton on Attorneys at Law, sec. 143; Crosby v. Hatch, 155 Iowa, 312, 135 N. W., 1079; Gage v. Atwater, 136 Cal., 170, 68 Pac., 581; In re Paschal, 10 Wall., 483). If the client has the right to terminate the relation of attorney and client at any time without cause, then the contract differs from an ordinary contract of employment in that one of the parties

thereto may put an end to the same, whether agreeable to the other party or not. If the client has this right as an implied condition of the contract under the law, it follows as a natural consequence that he cannot be compelled to pay damages for exercising that right which his contract gives him."

This decision is clearly in line with both reason and authority. The reason for the rule is well stated in the leading case of Martin v. Camp, 219 N. Y. 170, where the Court said:

"If in such a case the client can be compelled to pay damages to his attorney for the breach of the contract, the contract under which a client employs an attorney would not differ from the ordinary contract of employment. In such a case the attorney may recover the reasonable value of the services which he has rendered, but he cannot recover for damages for the breach of contract. The discharge of the attorney by his client does not constitute a breach of the contract, because it is a term of such contract, implied from the peculiar relationship which the contract calls into existence, that the client may terminate the contract at any time with or without cause. And it follows from this rule, by necessary implication, that if the client has the right to termi nate the contract, he cannot be made liable in damages for doing that which under the contract he has a right to do."

THE POSITION OF MONEY PAID AS A DEPOSIT.

Contracts of sale, particularly those for the sale of land, usually contain express provisions guarding against the contract going off and authorizing the vendor to retain the deposit in the event of the purchaser not carrying out his bargain. With such contracts the difficulties which emerge on failure to perform the contract are reduced considerably as compared with those numerous informal contracts in which the only provisions regarding the deposit are those which just barely state that a deposit of such and such an amount has been made. What then are the purchasers' and vendors' rights respectively when a deposit has been paid and all chance of carrying the contract through to completion is at an end.

The case of Howe v. Smith1 has been often cited as an authority for the broad

(1) 1884, 50 L. T. R. 573.

proposition that if a purchaser pays a vendor a sum of money by way of deposit, the latter is entitled to retain it in the event of the purchaser's default in carrying out the contract to completion. Having had occasion recently to look more closely into the question, we. think it well to set out here the exact ground of decision in that case. The facts briefly were, that the purchaser (plaintiff) claimed specific performance or a return of the deposit, and he was eventually held to be entitled to neither. The contract for sale contained a clause in common form to the effect that a sum of money had been paid on the signing of this agreement as a deposit and in part payment of the purchase money." The three judges of the Court of Appeal were unanimous in arriving at the result stated, and we think the ground for their opinion is found in one of the earlier cases quoted in their judgments, which laid down the principle that "in the absence of any specific provision the question whether a deposit is forfeited depends on the intent of the parties to be collected from the whole instrument." The opinions delivered deal at length with the nature and implications of "a deposit" and those of some of the judges likening it to "earnest" which is lost by a party who fails to perform his part of a contract, and probably gave rise to the unqualifiedly general view of the case to which we have made reference.

A comparatively recent case in the Scottish Courts illustrates further the importance of the question, what "a deposit" really is.3 In the contract for the sale of a ship it was provided that in the event of failure in the due payment of the purchase money of £30,000 by the purchasers a deposit of £3,000 made by the purchasers "shall be forfeited to the sole use of the vendors and any deficiency on a resale between the amount realized and the amount

(2) Valmer v. Temple, 1839, 9 A. & E. 508. (3) Robert & Cooper Ld. v. Salvesen & Co. & ors.. 1918, 55 S. L. R. 721.

due under the contract shall be borne by the purchasers together with interest and all expenses of such resale." The purchasers refused to implement the contract and sued to recover the sum deposited, alleging, as was the case, that the vendors had made a large profit on the resale of the ship. It was held that according to the intention of the contract the deposit was a security for implement which the purchasers could not, by taking advantage of their own breach, recover.

Dealing with the case of Howe v. Smith' the Lord Fresident observed that it appeared to be on all fours with the case before him and expressly approved of the ground judgment there stated by Lord Justice Cotton that "if the sale goes on, of course, not only in accordance with the words of the contract, but in accordance with the intention of the parties in making the contract, the deposit goes in part payment of the purchase money, but if on the default of the purchaser the contract goes off, that is to say if he repudiates the contract, then he can have no right to recover the deposit." And referring to an argument based on the dicta in Howe v. Smith as to a deposit being an earnest, the learned Lord President rejected that theory and gave emphatic approval to the following characteristic passage from the judgment of Lord Justice Bowen: "We have therefore to consider what in ordinary parlance and as used in an ordinary contract of sale is the meaning which business persons would attach to the word 'deposit.' Without going at length into the history or accepting all that has been said or will be said by other members of the court on that point it comes shortly to this that a deposit, if nothing more is said about it, is according to the ordinary interpretation of business men as security for the completion of the purchase. But in what sense is it a security for the completion of the purchase. It is quite certain that the pur

(4) Supra.

chaser cannot insist on abandoning his contract and yet recover the deposit, because that would be to enable him to take advantage of his own wrong."

A case apparently differing from those above cited but really agreeing with them, as to the ground of judgment-intention of the contracting parties--was lately decided in the Canadian Courts. There the defendant had sold to the plaintiff a quantity of scrap iron by written contract under which sixty dollars had been "deposited" on the contract when it was signed and the purchaser had to pay "forty dollars on contract" before loading. Both sums were paid, but the purchaser failed to carry out the rest of his agreement and the vendor 1esold the goods. The purchaser then sued for a return of the one hundred dollars. The trial judge found in favor of the defendant, but this was reversed in the Appellate Division and the plaintiff held entitled to recover his deposit and installment, and referring particularly to the case of Howe v. Smith, the Chief Justice observed: "In that case it was treated as one of contract, one of fact, whether the purchaser had agreed that the seller should retain the payment made if the plaintiff failed to carry out the contract." And with reference to the word "deposit" it was said "that word could have no technical meaning in the minds of these unlettered men; neither party intended a forfeiture-that is put beyond question in the testimony of each."

But the law is thus, we submit, not open to much doubt. The governing consideration as to the recovery of a deposit is the intention of the contracting parties. It is, therefore, but common prudence for them or their advisers or agents to see that intention is ascertained and defined, such definition being made in writing and embodied in the contract itself.

Glasgow, Scotland.

DONALD MACKAY.

(5) Brown v. Walsh, 1919, 45 Out. L. R. 646.

THE LAW'S DELAYS IN APPEL

LATE PROCEDURE.

The article of Mr. W. M. Cain, in the CENTRAL LAW JOURNAL of May 7, 1920, concerning the Law's Delays and Some Proposed Remedies, is both interesting and instructive.

It may be said, roughly speaking, that there are two means of delay in every law suit, the Legislative Delay and the Judicial Delay.

Through legislation, whether constitutional or statutory, the person seeking judicial action, for the enforcement of a right, or for the redress of a wrong, may expect, in the ordinary course of this legislative delay, before final determination, a lapse of time that may and does often extend into months and even years.

Through legislative procedure there has been provided generally, in the various states, a system of Courts, from the lowest, or Justice's Court, to the highest appellate, or Supreme Court, and a system of procedure administrative thereto, to which the litigant, for general purposes, may resort before there is a final determination of his rights. This prescriptive length of time may neither be lengthened nor shortened so far as the legislative acts themselves are concerned.

The delays occasioned through the use of this legislative system, both as to the number of Courts involved and the administrative procedure made applicable thereto, and the grievances that arise thereunder, are matters addressed to the legislative branch and are chargeable to the prescriptive legislative action.

On the other hand, judicial delay concerns that delay which occurs either in the Court's administration of the legislative procedure provided, or in the Courts procedural rules, as adopted and administered. Judicial delay in this procedure, whether statutory or Court, which does not promptly, consistent with efficiency, expedite liti

gation is delay worthy of the serious consideration of the Bench and the Bar.

The complaints concerning these delays of the law in litigated cases have been long standing. These complaints have been made, not only by the public, but by both the Bench and the Bar. Through public attention and criticism and through the cooperation of the Bench and the Bar in connection with legislative action, there has been evidenced a serious purpose, for several years past, to lessen the delay both in federal and state Court procedure.

To a certain extent, perhaps, the public, in attempting to avoid error and to better secure the rendition of impartial justice, has not only increased the number of Courts, but the legislative procedural rules through which a suitor at law may try or review, again and again, the law and the facts of his legal grievance. Procedure, accordingly, has generally been prescribed which is not summary or discretional with the Court, but routine and formal. Often this procedure, so prescribed and possible to be invoked, is of itself, a discouraging factor to the litigant where the element of time is of the essence of the right sought to be enforced.

So, in following this procedure, the complaints are presented and urged that the dilatory tactics of the lawyer, and the slow and tardy steps of the Courts bring too often into actual realization, the maxim, that "justice delayed is justice denied."

To the extent that this judicial delay is responsible for these complaints, justly presented, the Bench and the Bar must bear the responsibility and must measure up to the needs and the action required to remove them.

In trial work this judicial delay, in excess of the legislative prescriptive delay, is often evidenced as follows:

The time required, through the tardy or dilatory action of attorneys, in bringing a cause at issue, and upon a trial calendar: the time required to secure a hearing and

to reach a judicial determination, through the dilatory or perfunctory action of both the Court and the attorneys; the time required, after trial, to prepare, present and settle the record, for purposes of a new trial or review, or upon appeal, through the same dilatory or perfunctory action of both the Court and the attorneys. Often the time so taken has measured into years.

In appellate procedure, this judicial delay, even beyond the legislative prescriptive delay, has been frequently also evidenced as follows: The time required for the preparation of briefs by attorneys. through their tardy action; the time required for an opportunity to have the cause placed upon the appellate calendar and to be heard; after final argument, the time required, through procedural rules or tardy action of the Court, before the cause so argued is actually considered in conference, before the law and the facts therein are actually investigated by the Court, or a particular member thereof, and, before the final conference and final opinion of the Court. The time, thus taken, often again has measured into years.

Concerning these judicial delays the complaints have often been presented and urged, that litigation is thus made prolonged, and justice often denied; that an opportunity is thereby presented to one, financially strong, to exhaust and wear out his contestant, less strong; that, furthermore, upon the principle that time assuages grief, the Bench and Bar, after undue delay become slothful, indifferent and inconsiderate upon the law and the equities of the cause. That the Bar, eager for their clients' cause, often avail of this time element to aid their cause. That otherwise attorneys whose wits were sharpened by a strenuous battle in the trial Court, through this time delay, become rather dull and even indifferent in consideration of the cause upon appeal.

These complaints, whether justly or unjustly founded, have nevertheless been ap

plied to both the Bench and the Bar concerning the effect of the law's delays.

It may not be doubted that it is the aim, purpose, and ideal of the Bench and the Bar to attain the administration of justice with dispatch and efficiency.

It may not be doubted, again, that it is the desire of the people to be governed and guided, not by a rule of men, but by a rule of law and justice, interpreted and applied, when necessary, promptly and efficiently through the Bench and the Bar.

The means and methods of better accomplishment in this regard, procedurally, are the problems and responsibilities of the Bench and the Bar.

To their judgment, without legislative action, the people, when confident, will accede. To them, the people, when assured. will permit, without legislative action, the consideration and determination of these problems and responsibilities. For such consideration, the experiences here and there, of the Bench and the Bar, that have

actually served to lessen this judicial delay, may serve useful purposes.

Mr. Cain, in his article, adverts to this judicial delay, made undue, through the number of Courts, appellate or otherwise, the number of judges, and the time taken in the expedition and determination of causes, both in trial and appellate Courts. In the course of appellate procedure he has made actual observations of the experience of some fourteen states concerning the time. required in the judicial consideration of causes upon appeal. This time in various states, extends from a few months into years.

It is the purpose of this article to consider what has been accomplished in North Dakota in actually lessening this judicial delay in the appellate procedure alone, by the co-operation of both the Bench and the Bar.

In North Dakota there exists one appellate Court, the Supreme Court, consisting