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involved. He would have met the requirements of the subpoena if he had appeared in court when he was required to testify and give proper impromptu answers to such questions as might then have been put to him in behalf of the People. He could not have been required, under process of subpoena, to examine the case, and to have used his skill and knowledge to enable him to give an opinion upon any points of the case, nor to have attended during the whole trial and attentively considered and carefully heard all the testimony given on both sides, in order to qualify him to give a deliberate opinion upon such testimony, as an expert, in respect to the question of the sanity of the prisoner. Professional witnesses, I suppose, are more or less paid for their time, services and expenses, when called as experts in important cases, in all parts of the country."
These cases go far to establish the position contended for by the appellant. But, on the other hand, the case of Ex parte Dement, decided by the Supreme Court of Alabama, and reported in 6 Cent. L. J. 11, decides that a physician or surgeon may be compelled to testify as an expert, where the testimony is relevant to a cause pending before a judicial tribunal, without being paid as for a professional opinion.
Having thus considered the cases that have come under our notice bearing on the subject, it may be well to look at the works of text writers, for they furnish at least some evidence of what the law is. In 1 Taylor's Med. Jur., p. 19, it is said: "Before being sworn to deliver his evidence, a medical or scientific witness may claim the payment of his customary fees, unless an arrangement has already been made between him and the solicitors who have sent him a subpoena. These fees are generally made matter of private arrangement between the witness and the attorney." This clearly implies that he is to be paid his customary fees for an opinion, and that he may demand payment before delivering his evidence. But we doubt whether he could make the demand before being sworn, for he might be called upon to prove some fact within his knowledge.
In The Jurisprudence of Medicine in its Relations to the Law of Contracts, Torts and Evidence, by John Ordronaux, §§ 114, 115, it is said: "But once put upon the stand as a skilled witness, his (the physician's) obligation to the public now ceases, and he stands in the position of any professional man consulted in relation to a subject on which his opinion is sought. It is evident that the skill and professional experience of a man are so far his individual capital and property, that he cannot be compelled to bestow it gratuitously upon any party. Neither the public, any more than any private person, have a right to extort services from him in the line of his profession without adequate compensation. On the witness stand, precisely as in his office, his opinions may be given or withheld at pleasure, for a skilled witness cannot be compelled to give an opinion, nor be committed for contempt if he refuses to do so. * * * As the result of the foregoing conclusions, it may be said that a witness who is called in an action to depose to a matter of opinion, depending on his skill in a particular trade, has, before he is examined, a right to demand from the party calling him a compensation for his services; for there is a wide distinction between a witness thus called and a witness who is called to depose to facts which he saw." Then follow the re
marks of Maule, J., in the case of Webb v. Paige, which have already appeared in this opinion.
In 2 Phil. Ev., 4th Am. Ed., p. 828, it is said: "With respect to compensation for loss of time, the general rule is that it ought not to be allowed; though some compensation has usually been allowed to medical men and attorneys, but not others. And there seems to be a reasonable distinction between the case of a witness called to depose to a fact, and one who is called to speak to a matter of opinion, depending on his skill in a particular profession or trade; the former is bound, as a matter of public duty, to speak to the fact which has occurred within his knowledge, but the latter is under no such obligation, and is selected by the party to give his opinion merely, and he is entitled, therefore, to demand a compensation for loss of time."
In 1 Redf. on Wills, note 44 to pl. 31, pp. 154-5, the author says: "The following propositions may be of interest: 1. It is clear that experts are not obliged to give testimony upon mere speculative grounds, and where they have no personal knowledge of the facts in the case. If they have had personal knowledge of the testator it may fairly be regarded as amounting to the knowledge of facts. But unless this is the case, a medical witness is not obliged to obey the ordinary witness subpoena, and will not be held in contempt for disobeying it. This has been so ruled at nisi prius in England within the last few years. 2. The expert is not obliged to examine books and precedents, with a view to qualify himself to give testimony; nor is he obliged to examine into the facts of cases by personal inspection of individuals, whose state may be the subject of controversy in the courts. 3. It being purely matter of conventional arrangement between professional experts and those who desire to employ them as witnesses, both in regard to their acting as such, and also their making preparation to enable them to give such testimony, it virtually places a price upon such testimony in the market, and its price is likely to range somewhat according to its ability to aid one or the other of the parties litigant. The tendency of this is to make it partisan and one-sided, as a general thing."
Judge Redfield in no manner dissents from the above propositions as legal ones, but suggests, not that experts are not entitled to be paid, but that the law should be so changed "that this class of witnesses should be selected by the court, and that this should be done wholly independent of any nomination, recommendation or interference of the parties, as much so, to all intents, as are the jurors. To this end, therefore, the compensation of scientific experts should be fixed by statute, or by the court, and paid out of the public treasury, and either charged to the expense of the trial, as part of the costs of the cause, or not, as the legislature should deem the wisest policy." Iowa has legislated upon the subject, so that the court is to fix the compensation with reference to the time employed, and the decree of learning or skill required. Snyder v. Iowa City, 40 Iowa, 646.
These elementary authorities, and the cases of Webb v. Paige, and In the Matter of Roelker, supra, clearly and unmistakably point to the conclusion that the appellant was not bound to give his professional opinion without having been paid therefor. It would seem on general principles that the knowledge and learning of a physician should be regarded as his property which ought not to be extorted from him in
the form of opinions without just compensation. As it was said by this court of an attorney in the case of Webb v. Baird, 6 Ind. 13: "To the attorney, his profession is the means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic. The law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class-clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizens. *** The idea of one calling enjoying peculiar privileges, and therefore being more honorable than any other, is not congenial to our institutions. And that any class should be paid for their particular services in empty honors is an obsolete idea, belonging to another age and to a state of society hostile to liberty and equal rights."
In Israel v. The State, 8 Ind. 467, it was held that the services of witnesses, in criminal cases, were not "particular services," within the meaning of the Constitution. This is conceded. Witnesses who know any thing of a case, however high or low, rich or poor, learned or unlearned they may be, or whether occupying public or private stations in life, all stand upon an equality in this respect and must attend as witnesses without other compensation than that provided by law. This is a burden that falls upon all alike. The witnesses are bound to attend, and, in the language of some of the authorities before cited, "speak to the facts which have occurred within their knowledge." But the case decides nothing upon the point here involved. The case of Blythe v. The State, 4 Ind. 525, however, is exactly in point in principle. There Blythe, an attorney of the court, was appointed to defend a pauper on the charge of a larceny. Blythe denied the right of the court to demand his professional services without compensation, and refused to act. For this refusal the court adjudged him guilty of contempt. This court held, under the provision of the Constitution above set out, that he was not bound to perform the service.
In Webb v. Baird, 6 Ind. 13, Baird had been appoint-perform their service under oath.
ed to defend a pauper on a criminal charge and had performed the service, and the question involved was whether he was entitled to compensation from the county. Judge Stuart said in delivering the opinion of the court, that "the law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class-clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizens."
But if the professional services of a lawyer cannot be required in a civil or criminal case without compensation, how can the professional services of a physician be thus required? Is not his medical knowledge his capital stock? Are his professional services more at the mercy of the public than the services of a lawyer? When a physician testifies as an expert by giving his opinion, he is performing a strictly professional service. To be sure he performs that service under the sanction of an oath. So does the lawyer when he performs any service in a cause. The position of a medical witness testifying as an expert is much more like that of a lawyer than that of an ordinary witness testifying to facts. The purpose of this
service is not to prove facts in the cause, but to aid the court or jury in arriving at a proper conclusion from facts otherwise proved. Is not this also the province and business of an attorney? And are not the services of each equally "particular?" All attempts to make a difference in the two cases are but losing sight of the substance and grasping at the shadow.
If physicians and surgeons can be compelled to render professional services by giving their opinions on the trial of criminal cases without compensation, then an eminent physician or surgeon may be compelled to go to any part of the State, at any and all times, to render such services without other compensation than such as he may recover as ordinary witness fees from the defendant in the prosecution, depending upon his conviction and ability to pay. This, under the general principles of law and the Constitution of the State, he cannot be compelled to do. If he knew facts pertinent to the case to be tried, he must attend and testify as any other witness. In respect to facts within his knowledge, his qualifications as a physician or surgeon are entirely unimportant. In respect to facts, as before stated, he stands upon an equality with all other witnesses; and the law, as well as his duty to the public, requires him to attend and testify for such fees as the legislature have provided. Not so, however, in respect to his professional opinions. In giving them he is performing a "particular" service, which cannot be demanded of him without compensation. The 13th section of the Bill of Rights, provides that in all criminal prosecutions, the accused shall have the right to have compulsory process for obtaining witnesses in his favor. This provision has no bearing upon the question involved. The term "witness," as thus used, was used in its ordinary sense as embracing those who know, or are supposed to know some fact or facts pertinent to the cause. But the physician or surgeon, when giving his professional opinion in a court, does not, as above stated, occupy the position of a witness testifying to facts. He performs the service under oath, to be sure, and this is the only circumstance from which he can be called a witness at all. So the judge upon the bench, the lawyer at the bar and the jury in the jury box, all
It is unnecessary to determine, in this case, whether all classes of experts cau require payment before giving their opinions as such. It is sufficient to say that physicians and surgeons, whose opinions are valuable to them as a source of their income and livelihood, cannot be compelled to perform service by giving such opinions in a court of justice without such payment. The commitment of appellant for contempt was erroneous and the judgment of the court below is reversed.
Biddle, C. J., and Niblack, J., dissented.
STATE LEGISLATION IMPAIRING OBLIGA-
SUPREME COURT OF MISSOURI, MARCH, 1878.
STATE OF MISSOURI V. MILLER.
By an act of the legislature of Missouri, passed previous to 1843, a town was authorized to raise for a public purpose $15,000 by the grant of a lottery privilege. Under such act the town officers granted to G. the right to maintain a lottery for the sum of $250, payable semiannually, commencing January 1, 1843, until $15,000 was paid, which would be in 1870. In 1849 G. not having made
the stipulated payments, the town officers made a new contract with him, releasing him from payment of the sums due and providing that he should have a right to maintain the lottery upon the payment of $250 semiannually, until the balance unpaid of the $15,000 should be paid, which would be in 1877. This contract was declared valid by an act of the legislature passed in 1855. Held, that the contract authorizing the continuance of the lottery until 1877 was by the act of the legislature in 1855 made a valid one and created a vested right in G., which could not, under the constitutional provision against impairing the obligation of a contract, be interfered with by State legislation. Held, also, that the ratification of the contract between the town officers and G. by the legislature made that contract the act of the State, and that the law ratifying it was not invalid uuder a constitutional provision forbidding retrospective legislation.
defendant from a judgment of the St.
Louis Court of Appeals, affirming a judgment in favor of plaintiff. The facts appear in the opinion. NORTON, J. This is a proceeding in the nature of quo warranto exhibited by the attorney-general on behalf of the State, to the St. Louis Circuit Court, in which it is alleged that defendants, without warrant, and in violation of law were engaged in selling lottery tickets under a pretended franchise, and praying that they be required to appear and show by what authority they were acting. Defendants appeared and alleged in their answer that by virtue of a contract entered into on the 1st of June, 1842, by one Gregory with the trustees of the town of New Franklin, and a modification thereof made on the 11th of April, 1849, as ratified by an act of the general assembly, passed in December, 1855, they were fully authorized to enjoy the privilege of selling tickets and conducting a lottery in the State till the year 1877, they having acquired by purchase and assignment from the representatives of said Gregory all the rights accruing to him under said contracts. It was also averred that the general assembly passed an act in 1833, incorporating the town of New Franklin, in which it was provided that it might through its trustees raise by lottery the sum of $15,000 for the purpose of building a railroad from said town to the Missouri river. That in 1835 another act was passed authorizing the said trustees to contract with any person to have said lottery drawn in any part of the United States on such terms as they might consider the most advantageous. Also another act, passed in 1839, whereby the trustees were empowered to apply the proceeds of said lottery in constructing a macadamized, instead of a railroad. It was also provided by this act that the governor might, by proclamation, authorize the trustees to raise by lottery a sum not exceeding $15,000 to complete the work. That under a proclamation thereafter issued by the governor, giving the requisite authority, the said trustees, on the 1st of June, 1842, made a contract with one Walter Gregory, by which they sold and transferred to him the said lottery privilege and all rights to control the same, and appointed him the sole manager thereof. In consideration of which the said Gregory agreed to assume the management of said lottery and to pay the trustees, in installments, $250 on the first day of January, 1843, $250 on the first day of June, 1843, and so on, paying the sum of $250 semi-annually till the said sum of $15,000 was fully paid. The said Gregory further agreed to pay all expenses, costs and charges growing out of the management of said lottery, to sustain all hazards, risks and losses and pay all prizes drawn or decided in said lottery. That the contract was modified by another made on the 11th April, 1849, between said Gregory and the board of trustees, whereby the said Gregory, on the payment of $500, was released from
all payments under the contract of June 1, 1842, till the 15th June, 1851, when the semi-annual payments of $250 on the said contract were then to begin and continue until the additional sum of $13,400 was fully paid.
That the general assembly, by an act passed in December, 1855 (Sess. Acts 1855, p.467) among other things, provided" that all contracts made by the said trustees for the purpose of raising the amount of money authorized to be raised by the said act of incorporation and the acts amendatory thereof, for the purpose of constructing a rail or macadamized road, from the bank of the river to said town be and the same are hereby declared to be legal, and may be carried out according to the true intent and meaning of the parties thereto."
Upon a trial in the Circuit Court, judgment of ouster was rendered against the defendants, which, on appeal to the St. Louis Court of Appeals, was affirmed, from which defendants have appealed to this court. It is contended by respondents that the judgment is rightful :
1. Because there was not in being any valid contract conferring upon defendants the right to conduct a lottery.
2. Because the privilege of conducting a lottery conferred by the act of 1833, had been forfeited by misuser and a misapplication by the trustees of the town of New Franklin of the moneys derived from it.
Anterior to the adoption of the Constitution of 1865 there was nothing in the organic law prohibiting the legislature from establishing lotteries. Until then they had the right to pass laws authorizing or forbidding the sale of lottery tickets. Under the Constitution of 1820, the general assembly had the power to authorize the town of New Franklin, through its trustees, to raise money by means of a lottery, and this we understand to be conceded. Nor is it denied that the act of 1835, empowering the said trustees to contract with any other person for the drawing and management of the lottery, was a legitimate exercise of legislative power, nor is the validity of the contract entered into by the trustees with Gregory in June, 1842, questioned, its binding force having been sanctioned by this court heretofore in the cases of State v. Morrow, 12 Mo. 289; State v. Morrow, 26 id. 131, and State v. Hawthorne, 9 id. 389. It is, however, claimed by respondent that under the contract of 1842 the defendants as assignees of Gregory had no right to operate a lottery after the year 1870, as at that time. the whole sum of $15,000 authorized by this means would have been realized. It is insisted on the other hand by the defendants that the contract of 1842 was so modified by the contract of 1849 as to continue the time for conducting the lottery till the year 1877, and that if the contract of 1849 was tainted with any infirmity it was cured by the confirmatory and validating act of December, 1855.
The question then presents itself, were the defendants engaged in selling lottery tickets under any valid contract made with the State or its agencies when this proceeding was instituted? It is not an open question that, under the contract of 1842, the defendants, as the assignees of Gregory, could rightfully manage and carry on a lottery till 1870. The cases above cited put this question to rest. Was the contract of 1842 so modified by the contract of 1849 as to continue this right till 1877 ? It is insisted by respondent that the
contract of 1849 had no such effect, because it extended the time for conducting the lottery from five to seven years, in violation of the acts of 1842 and 1845, which prohibited the sale of lottery tickets in the State, and was therefore void. This argument, if sound, would prove that the contract of 1842 was also void, because the legislature in 1836 passed an act prohibiting the sale of lottery tickets, which was in full force when the contract of 1842 was entered into. This court pronounced that contract valid, notwithstanding the existence of the act of 1836. We are not to presume that the court overlooked that act when the validity of that contract was the direct question before them in two cases.
It is also said that the contract of 1849 is void because it is not supported by any consideration. Whether this be so or not can make no difference, if, by the act of 1855, it was validated-ratified by the State speaking through the general assembly. It is declared in the Acts of 1855, p. 467, “that all contracts made by the trustees of the town of New Franklin for the purpose of raising the amount authorized in the act of incorporation * **be, and the same are hereby declared to be legal and may be carried out according to the true intent and meaning of the parties thereto." The words of this act are unambiguous. At the time of its passage but two contracts had been made by the trustees one in 1842, the other in 1849. Besides these, no others were in existence to which the language of the act could be applied. The legislature could not have referred alone to the contract of 1842, because they used the word "contracts," which embraced not only that but all others. The contract of 1842 needed no legislative ratification to support it, because long prior thereto it had been upheld by the judgment of this court. The contract of 1849 had not at that time undergone judicial scrutiny, nor had its legality been passed-and the presumption is that the general assembly, because of the existence of doubts as to its validity, intended to remove them and make that clear which before was questionable. We are unacquainted with any principle of construction which would justify us in applying the act of 1855 to the contract of 1842, which needed no aid or support to the exclusion of that of 1849 which, the argument of respondents tends to show, did require confirmation to give it force and effect. Both are embraced in the terms of the act, and we cannot do violence to it by giving to the words it contains a more restricted meaning than they import. It is settled that a subsequent ratification by the State of a contract made by one of its own agencies is equivalent to a previous authorization. Stein v. Franklin Co., supra.
The contract of 1849 was so made because by the act of 1833 the town of New Franklin became a public as contradistinguished from a private corporation; and such public corporations are called into being at the pleasure of the State, and neither the charter nor act of incorporation is in any sense a contract between the State and the corporation. The same voice which speaks them into existence may speak them out. 2 Dill. Mun. Corp., § 30. Such corporations are the auxiliaries of the government in the important business of municipal rule, and cannot have the least pretension to sustain their privilege or their existence upon any thing like a contract between them and the legislature. Ang. and Ames on Corp., § 31. When the State, however, does create such agency, and through it contracts with a third person whereby rights become vested in
such persons, it is then beyond its power to divest them for such contract pro hac vice the contract of the State, the obligation of which it cannot impair without trampling under foot that provision of the Constitution which declares that no State shall pass any law impairing the obligation of a contract, and if such agency make a contract with a third person touching a subject in reference to which the State has authorized it to contract, and such contract is imperfectly made, it is within the power of the State to validate it. If, therefore, the contract of 1849 was not, as is contended, in conformity to law, the act of 1855 declared it to be legal, and that it should be carried out “according to the intent and meaning of the parties thereto."
If the general assembly in the act of 1855, instead of referring in general terms to all contracts made by the trustees of the town of New Franklin, had incorporated in the act the contracts of 1842 and 1849, in the very words in which they were expressed, they would not have been rendered more valid than they are under the act which includes both of them by the expression therein contained. Both stand upon the same footing and are to be regarded as the contracts of the State, which it, no more than an individual, can violate.
It is also urged that the act of 1855 is obnoxious to that provision of the Constitution which declares that the legislature shall not pass any law retrospective in its operation. The cases to which we have been cited in support of this view are cases in which the legislature undertook to make acts valid between individuals which were void in their inception, as, for instance, that a deed executed by A to B, though void when made, should be held valid; or that a deed made by an insane person should be legal and binding. The principle decided in such cases has no application here, for the reason that the State, as one of the contracting parties, had the same right to consent to the modification of the contract made in 1849, as it had to confer original authority on the town of New Franklin through its trustees to enter into the contract of 1842. H. & St. Joe R. R. v. Marion Co., 31 Mo. 303; Barton Co. v. Watson, 47 id. 189; Stein v. Franklin Co., 48 id.
It is further urged that, because of the misuser of the money paid to the trustees under this contract, the assignees of Gregory have lost all rights acquired by them and that the State can claim a forfeiture of the privilege granted on that account.
The evidence in the case clearly shows that the trustees did not apply the funds realized to the object for which they were intended, and which this breach of duty might have been addressed to the legislature as a cogent reason for the withdrawal of the bounty bestowed or the total destruction of the town of New Franklin as a municipality. It does not follow that the State through a proceeding in quo warranto can for such cause forfeit and take away the right acquired by the assignees of the Gregory contract so long as the power conferred by the act of 1835 upon the trustees to contract with other persons for drawing and managing said lottery remained unexecuted by them. The State, through its legislature, could have taken from the town of New Franklin the right to raise money in that way, such right being a mere bounty, subject to recall or repeal without such repealing law, being obnoxious to the prohibition against the passage of a law impairing the obligation of contracts.
When, however, this power is executed and a contract concluded whereby a third person acquired the
right to conduct and manage a lottery, another and different question is presented, and the rights thus acquired become vested by the act of the State and cannot be taken away except by the terms of the contract. State v. Miller, 50 Mo. 129; Clark v. Mitchell et al., 64 id. 576. The contract in question imposed no obligation on Gregory or his assigns to look to the application of the money which the town of Franklin was authorized to raise.
His obligation was to pay semi-annually the sum of $250 to the trustees, in consideration of which he acquired the right to exercise the privilege of conducting a lottery until such payments amounted to the sum of $15,000, and we are at a loss to perceive on what principle the right thus acquired can be taken away because the town of New Franklin, through its trustees, wasted or misapplied the payments. Neither he nor his assigns had power over the town or its trustees. His duty was to pay, and theirs to make the proper application. If, even, the defendants stood in the place of the trustees, and were responsible for their acts, it might, under the doctrine as laid down in 2 Dill. Mun. Corp., § 720, well be doubted whether the privilege or franchise could be forfeited in this proceeding. It is there stated "that in no instance have the courts of this country declared forfeited the charter or franchises of a municipal corporation for the acts of misconduct of its agents or officers." That this was done by English courts prior to the revolution of 1688 is well known. The case of the city of London is the most conspicuous historical example. It is believed that such a remedy is not applicable to our corporations created as they are by statute for the benefit, not of the officers or a few persons, but of the whole body of the inhabitants and the public.
We have been driven to our conclusions by former adjudications of this court, the correctness of which we do not question. As to the impolicy of the act of the general assembly in granting the privileges it did to the town of New Franklin, whereby the sale of lottery tickets has for years been authorized, against the sense of the people of the State and to the debauchery of the public morals, we have nothing to do. Nor have we any thing to do with the fact that the trustees, in making the Gregory contracts, and the legislature in validifying them, have acted unwisely and continued till the year 1877 a business yielding large profits and gains to one contracting party and comparatively small to the other. We are to look to the contract, and if fairly made, uncorrupted by fraud and untainted by illegal considerations, it is our duty to enforce and uphold the legal rights which it confers. Security to the rights of person and property demands a strict adherence to this rule, and it cannot be overleaped even though the purpose be to cancel either a supposed or real great evil.
We are of the opinion that the judgment of the Court of Appeals, as well as that of the Circuit Court should be reversed and the complaint dismissed, which is accordingly hereby done, in which the other judges concur, except Judge Napton, who did not sit.
POWER OF COUNTY COURT TO STAY ACTIONS AGAINST ASSIGNOR UNDER STATE INSOLVENT LAWS.
QUESTION of considerable importance, under the
A State, relating to assignments for
henefit of creditors, which does not appear to have
been heretofore passed upon, was decided by Judge Russell, county judge of St. Lawrence county, in the case of Butler v. Thompson. The question arose on a motion to stay creditors from maintaining action in the Supreme Court against the assignor under general assignment for benefit of creditors. The moving counsel presented the theory fairly, supported by affidavits, establishing the facts that this was a case where a due and orderly disposition of the assigned property would pay the creditors in full, and leave a surplus to the assignor; that the General Assignment Act of 1877 committed the care and custody of the assigned property, the marshaling of the assets, and the collection of the claims, to the County Court, substantially as the Bankrupt Act of the United States does to the District Court; that the assignor, having committed his property to a trustee for creditors, without preference, who would be paid in full, should not have the residuum which might come to him after payment of his debts imperiled or diminished by the enhancement of his obligations by bills of costs or expenses of litigation. The county judge held that these views were not correct, saying that the laws of New York cannot be said to contemplate and provide for the assignment of property of a debtor, who can pay his obligations in full to an assignee who shall be able to hold that property beyond the reach of legal process, and thus secure to the assignor time for the payment of his debts, which otherwise he would not be able to secure.
The rights of the creditor to sue is one of those civil rights which should not be taken away by implication. The act of 1877 in no manner suspends the rights of the creditor; it does not afford to the debtor the ultimate relief of a discharge from his debts, nor does it provide for any stay. Herein it differs from the Bankrupt Act; that looks not only to the fair distribution of the debtor's property, but also to his final discharge from antecedent obligations, and expressly provides for ad interim stays. By pursuing his remedy by action, the creditor does not and cannot interfere with the trust, if the assignment be valid; he cannot attack the property assigned, and hence he does not interfere with the objects for which the trust was created. No power is conferred upon the County Court to deprive him of the right to secure his debt out of property acquired by the debtor subsequent to the assignment; as the law does not favor general assignments by solvent debtors, the presumption is that the creditor will need such property to satisfy at least a portion of his claim. The motion was denied.
EXCUSES FOR NON-FULFILLMENT OF CONTRACT FOR PERSONAL SERVICE ILLNESS CAUSED BY IMPRUDENCE.
ENGLISH HIGH COURT OF JUSTICE, EXCHEQUER DIVISION, TUESDAY, JANUARY 22, 1878.
KV.RASCHEN AND ANOTHER, 38 L. T. R. (N. S.) 38. Plaintiff was engaged by the defendants as a clerk at £120
per annum, and was to have one month's notice of dismissal. He began his duties on the 2d July, and served till the 1st of August. He was then obliged by illness to be absent till the 2d September, when he tendered his services, which were refused. He had in the meantime received on the 20th August a letter from the defendants terminating the engagement. In an action brought by him for wages from the 1st August to the 20th September, it was held that the plaintiff was en