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involved. He would have met the requirements of marks of Maule, J., in the case of Webb v. Paige, which the subpæna if he had appeared in court when he was have already appeared in this opinion. required to testify and give proper impromptu answers In 2 Phil. Ev., 4th Am. Ed., p. 828, it is said: “Witb to such questions as inight then have been put to him respect to compensation for loss of time, the general in behalf of the People. He could not have been re- rule is that it ought not to be allowed; though some quired, under process of subpæna, to examine the compensation has usually been allowed to medical case, and to have used his skill and knowledge to enable men and attorneys, but not others. And there seems him to give an opinion upon any points of the case, nor to be a reasonable distinction between the case of a to have attended during the whole trial and attentive- witness called to depose to a fact, and one who is ly considered and carefully heard all the testimony called to speak to a matter of opinion, depending on given on both sides, in order to qualify him to give a his skill in a particular profession or trade; the former deliberate opinion upon such testimony, as an expert, is bound, as a matter of publio duty, to speak to the in respect to the question of the sanity of the prisoner. fact which has occurred within his knowledge, but the Professional witnesses, I suppose, are more or less latter is under no such obligation, and is selected by paid for their time, services and expenses, when the party to give his opinion merely, and he is enticalled as experts in important cases, in all parts of the tled, therefore, to demand a compensation for loss of country.”

time." These cases go far to establish the position contended In 1 Redf. on Wills, note 44 to pl. 31, pp. 154-5, the for by the appellant. But, on the other hand, the case author says: “The following propositions may be of of Ex parte Dement, decided by the Supreme Court of interest: 1. It is clear that experts are not obliged to Alabama, and reported in 6 Cent. L. J. 11, decides give testimony upon mere speculative grounds, and that a physician or surgeon may be compelled to testify where they have no personal knowledge of the facts in as an expert, where the testimony is relevant to a the case. If they have had personal knowledge of the cause pending before a judicial tribunal, without be- testator it may fairly be regarded as amounting to the ing paid as for a professional opinion.

knowledge of facts. But unless this is the case, a Having thus considered the cases that have come medical witness is not obliged to obey the ordinary under our notice bearing on the subject, it may be witness subpoena, and will not be held in contempt well to look at the works of text writers, for they fur- for disobeying it. This has been so ruled at nisi prius nish at least some evidence of what the law is. Iu 1 in England within the last few years. 2. The expert Taylor's Med. Jur., p. 19, it is said: “ Before being is not obliged to examine books and precedents, with sworn to deliver his evidence, a medical or scientific a view to qualify himself to give testimony; nor is he witness may claim the payment of his customary fees, obliged to examine into the facts of cases by personal unless an arrangement has already been made between inspection of individuals, whose state may be the subject him and the solicitors who have sent him a subpoena. of controversy in the courts. 3. It being purely matThese fees are generally made matter of private ter of conventional arrangement between professional arrangement between the witness and the attorney." experts and those who desire to employ them as witThis clearly implies that he is to be paid his customary nesses, both in regard to their acting as such, and also fees for an opinion, and that he may demand pay- their making preparation to enable them to give such ment before delivering his evidence. But we doubt testimony, it virtually places a price upon such testiwhether he could make the demand before being mony in the market, and its price is likely to range sworn, for he might be called upon to prove some fact somewhat according to its ability to aid one or the within his knowledge.

other of the parties litigant. The tendency of this is In The Jurisprudence of Medicine in its Relations to make it partisan and one-sided, as a general thing." to the Law of Contracts, Torts and Evidence, by John Judge Redfield in no manner dissents from the Ordronaux, ss 114, 115, it is said: “But once put above propositions as legal ones, but suggests, not that upon the stand as a skilled witness, his (the physi-experts are not entitled to be paid, but that the law cian's) obligation to the public now ceases, and he should be so changed " that this class of witnesses stands in the position of any professional man con- should be selected by the court, and that this should sulted in relation to a subject on which his opinion is be done wholly independent of any nomination, sought. It is evident that the skill and professional recommendation or interference of the parties, as experience of a man are so far his individual capital much so, to all intents, as are the jurors. To this end, and property, that he cannot be compelled to bestow therefore, the compensation of scientific experts it gratuitously upon any party. Neither the public, should be fixed by statute, or by the court, and paid any more than any private person, have a right to ex- out of the public treasury, and either charged to the tort services from him in the line of his profession expense of the trial, as part of the costs of the cause, without adequate compensation. On the witness or not, as the legislature should deem the wisest stand, precisely as in his office, his opinions may be policy." Iowa has legislated upon the subject, so that given or withheld at pleasure, for a skilled witness can- the court is to fix the compensation with reference to not be compelled to give an opinion, nor be committed the time employed, and the decree of learning or skill for contempt if he refuses to do so. * As the required. Snyder v. Iowa City, 40 Iowa, 646. result of the foregoing conclusions, it may be said that These elementary authorities, and the cases of Webb a witness who is called in an action to depose to a v. Paige, and in the Matter of Roelker, supra, clearly matter of opinion, depending on his skill in a particu- and unmistakably point to the conclusion that the lar trade, has, before he is examined, a right to de- appellant was not bound to give his professional opinmaud from the party calling him a compensation for ion without having been paid therefor. It would his services; for there is a wide distinction between a seem on general principles that the knowledge and witness thus called and a witness who is called to learning of a physician should be regarded as his depose to facts which he saw." Then follow the re- property which ought not to be extorted from him in

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the form of opinions without just compensation. As service is not to prove facts in the cause, but to aid it was said by this court of an attorney in the case of the court or jury in arriving at a proper conclusion Webb v. Baird, 6 Ind. 13: “To the attorney, his pro- from facts otherwise proved. Is not this also the proyfession is the means of livelihood. His legal knowl- ince and business of an attorney? And are not the edge is his capital stock. His professional services services of each equally “particular?” All attempts are no more at the mercy of the public, as to remu- to make a difference in the two cases are but losing neration, than are the goods of the merchant, or the sight of the substance and grasping at the shadow. crops of the farmer, or the wares of the mechanic. If physicians and surgeons can be compelled to renThe law which requires gratuitous services from a der professional services by giving their opinions on particular class, in effect imposes a tax to that extent the trial of criminal cases without compensation, upon such class - clearly in violation of the funda- then an eminent physician or surgeou may be commental law, which provides for a uniform and equal pelled to go to any part of the State, at any and all rate of assessment and taxation upon all the citizens. times, to render such services without other compen

* The idea of one calling enjoying peculiar sation than such as he may recover as ordinary witprivileges, and therefore being more honorable than ness fees from the defendant in the prosecution, deany other, is not congenial to our institutions. And pending upon his conviction and ability to pay. This, that any class should be paid for their particular ser- under the general principles of law and the Constituvices in empty honors is an obsolete idea, belonging to tion of the State, he cannot be compelled to do. If another age and to a state of society hostile to liberty he knew facts pertinent to the case to be tried, he and equal rights."

must attend and testify as any other witness. In reIn Israel v. The State, 8 Ind. 467, it was held that spect to facts within his knowledge, his qualifications the services of witnesses, in criminal cases, were not as a physician or surgeon are entirely unimportant. "particular services," within the meaning of the Con- In respect to facts, as before stated, he stands upon an stitution. This is conceded. Witnesses who know equality with all other witnesses; and the law, as well any thing of a case, however high or low, rich or poor, as his duty to the public, requires him to attend and learned or unlearned they may be, or whether occupy- testify for such fees as the legislature have provided. ing public or private stations in life, all stand upon an Not so, however, in respect to his professional opinequality in this respect and must attend as witnesses ions. In giving them he is performing a “particular" without other compensation than that provided by service, which cannot be demanded of him without law. This is a burden that falls upon all alike. The compensation. The 13th section of the Bill of Rights, witnesses are bound to attend, and, in the language of provides that in all criminal prosecutions, the accused some of the authorities before cited, “speak to the shall have the right to have compulsory process for facts which have occurred within their knowledge." obtaining witnesses in his favor. This provision has But the case decides nothing upon the point here in- no bearing upon the question involved. The term volved. The case of Blythe v. The State, 4 Iud. 525, " witness," as thus used, was used in its ordinary however, is exactly in point in principle. There sense as embracing those who know, or are supposed Blythe, an attorney of the court, was appointed to de- to know some fact or facts pertinent to the cause. feud a pauper on the charge of a larceny. Blythe But the physician or surgeon, when giving his profesdenied the right of the court to demand his pro- sional opinion in a court, does not, as above stated, fessional services without compensation, and refused occupy the position of a witness testifying to facts. to act. For this refusal the court adjudged him guilty He performs the service under oath, to be sure, and of contempt. This court held, under the provision of this is the only circumstance from which he can be the Coustitution above set out, that he was not bound called a witness at all. So the judge upon the bench, to perform the service.

the lawyer at the bar and the jury in the jury box, all 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

It is unnecessary to determine, in this case, whether performed the service, and the question involved was all classes of experts can require payment before givwhether he was entitled to compensation from the ing their opinions as such. It is sufficient to say that county. Judge Stuart said in delivering the opinion physicians and surgeons, whose opinions are valuable to of the court, that "the law which requires gratuitous them as a source of their income and livelihood, canservices from a particular class, in effect imposes a tax

not be compelled to perform service by giving such to that extent upon such class — clearly in violation

opinions in a court of justice without such payment. of the fundamental law, which provides for a uniform The commitment of appellant for contempt was erand equal rate of assessment and taxation upon all the

roneous and the judgment of the court below is recitizens."

versed. But if the professional services of a lawyer cannot

Biddle, C. J., and Niblack, J., dissented. 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 knowl- STATE LEGISLATION IMPAIRING OBLIGAedge bis capital stock? Are his professional services

TION OF CONTRACTS. more at the mercy of the public than the services of a lawyer? When a physician testifies as an expert by SUPREME COURT OF MISSOURI, MARCH, 1878. giving his opinion, he is performing a strictly professional service. To be sure he performs that service

STATE OF MISSOURI V. MILLER. under the sanction of an oath. So does the lawyer By an act of the legislature of Missouri, passed previous to when he performs any service in a cause.

The posi

1843, a town was authorized to raise for a public pur

pose $15,000 by the grant of a lottery privilege. Under tion of a medical witness testifying as an expert is such act the town officers granted to G. the right to

maintain a lottery for the sum of $250, payable semimuch more like that of a lawyer than that of an ordi

annually, commencing January 1, 1843, until $15,000 was nary witness testifying to facts. The purpose of this paid, which would be in 1870. In 1849 G. not having made

the stipulated payments, the town officers made a new all payments under the contract of June 1, 1842, till the contract with him, releasing him from payment of the

15th June, 1851, when the semi-annual payments of sums due and providing that he should have a right to maintain the lottery upon the payment of $250 semi- $250 on the said contract were then to begin and conannually, until the balance unpaid of the $15,000 should

tinue until the additional sum of $13,400 was fully be paid, which would be in 1877. This contract was declared valid by an act of the legislature passed in 1855. paid. Hdd, that the contract authorizing the continuance of the lottery until 1977 was by the act of the legislature

That the general assembly, by an act passed in Dein 1855 made a valid one and created a vested right in G., cember, 1855 (Sess. Acts 1855, p.467) among other things, which could not, under the constitutional provision against impairing the obligation of a contract, be inter

provided “that all contracts made by the said trustees fered with by State legislation.

for the purpose of raising the amount of money auHeld, also, that the ratification of the contract between

thorized to be raised by the said act of incorporation the town officers and G. by the legislature made that contract the act of the State, and that the law ratifying and the acts amendatory thereof, for the purpose of it was not invalid uuder a constitutional provision forbidding retrospective legislation.

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 Louis Court of Appeals, affirming a judgment in favor of plaintiff. The facts appear in the opinion.

according to the true intent and meaning of the parties

thereto." NORTON, J. This is a proceeding in the nature of quo warranto exhibited by the attorney-general on be

Upon a trial in the Circuit Court, judgment of ouster half of the State, to the St. Louis Circuit Court, in

was rendered against the defendants, which, on appeal which it is alleged that defendants, without warrant,

to the St. Louis Court of Appeals, was affirmed, from

which defendants have appealed to this court. It is and in violation of law were engaged in selling lottery tickets under a pretended franchise, and praying that

contended by respondents that the judgment is right

ful : they be required to appear and show by what authority they were acting. Defendants appeared and al- 1. Because there was not in being any valid contract leged in their answer that by virtue of a contract en

conferring upon defendants the right to conduct a tered into on the 1st of June, 1842, by one Gregory

lottery. with the trustees of the town of New Franklin, and a

2. Because the privilege of conducting a lottery conmodification thereof made on the 11th of April, 1849,

ferred by the act of 1833, had been forfeited by misuser as ratified by an act of the general assembly, passed in

and a misapplication by the trustees of the town of December, 1855, they were fully authorized to enjoy

New Franklin of the moneys derived from it. the privilege of selling tickets and conducting a lottery

Anterior to the adoption of the Constitution of 1865 in the State till the year 1877, they having acquired by

there was nothing in the organic law prohibiting the purchase and assignment from the representatives of legislature from establishing lotteries. Until then said Gregory all the rights accruing to him under said they had the right to pass laws authorizing or forbidcontracts. It was also averred that the general as- ding the sale of lottery tickets. Under the Constitusembly passed au act in 1833, incorporating the town

tion of 1820, the general assembly had the power to of New Franklin, in which it was provided that it

authorize the town of New Franklin, through its trusmight through its trustees raise by lottery the sum of tees, to raise money by means of a lottery, and this we $15,000 for the purpose of building a railroad from said understand to be conceded. Nor is it denied that the town to the Missouri river. That in 1835 another act act of 1835, empowering the said trustees to conwas passed authorizing the said trustees to contract

tract with any other person for the drawing and manwith any person to have said lottery drawn in any part agement of the lottery, was a legitimate exercise of of the United States on such terms as they might con- legislative power, nor is the validity of the contract sider the most advantageous. Also another act, passed

entered into by the trustees with Gregory in June, in 1839, whereby the trustees were empowered to apply 1842, questioned, its binding force having been sancthe proceeds of said lottery in constructing a macadam

tioned by this court heretofore in the cases of State v. ized, instead of a railroad. It was also provided by

Morrow, 12 Mo. 289; State v. Morrow, 26 id. 131, and this act that the governor might, by proclamation, State v. Hawthorne, 9 id. 389. It is, however, claimed authorize the trustees to raise bg lottery a sum not by respondent that under the contract of 1842 the deexceeding $15,000 to complete the work. That under

fendants as assignees of Gregory had no right to a proclamation thereafter issued by the governor, giv- operate a lottery after the year 1870, as at that time ing the requisite authority, the said trustees, on the

the whole sum of $15,000 authorized by this means 1st of June, 1842, made a contract with one Walter would have been realized. It is insisted on the other Gregory, by which they sold and transferred to him hand by the defendants that the contract of 1842 was the said lottery privilege and all rights to control the so modified by the contract of 1849 as to continue the same, and appointed him the sole manager thereof. In time for conducting the lottery till the year 1877, and consideration of which the said Gregory agreed to that if the contract of 1849 was tainted with any inassume the management of said lottery and to pay the firmity it was cured by the confirmatory and validating trustees, in installments, $250 on the first day of Jan- act of December, 1855. uary, 1843, $250 on the first day of June, 1843, and so on, The question then presents itself, were the defendants paying the sum of $250 semi-annually till the said sum engaged in selling lottery tickets under any valid conof $15,000 was fully paid. The said Gregory further tract made with the State or its agencies when this agreed to pay all expenses, costs and charges growing proceeding was instituted ? It is not an open question out of the management of said lottery, to sustain all that, under the contract of 1842, the defendants, as the hazards, risks and losses and pay all prizes drawn orde- assignees of Gregory, could rightfully manage and cided in said lottery. That the contract was modified carry on a lottery till 1870. The cases above cited put by another made on the 11th April, 1819, between said this question to rest. Was the contract of 1842 so Gregory and the board of trustees, whereby the said modified by the contract of 1849 as to continue this Gregory, on the payment of $500, was released from right till 1877 ? It is insisted by respondent that the contract of 1849 had no such effect, because it extended such persons, it is then beyond its power to divest the time for conducting the lottery from five to seven them for such contract pro hac vice the contract of the years, in violation of the acts of 1842 and 1845, which State, the obligation of which it cannot impair withprohibited the sale of lottery tickets in the State, and out trampling under foot that provision of the Constiwas therefore void. This argument, if sound, would tution which declares that no State shall pass any law prove that the contract of 1842 was also void, because impairing the obligation of a contract, and if such the legislature in 1836 passed an act prohibiting the agency make a contract with a third person touching sale of lottery tickets, which was in full force when a subject in reference to which the State has authorthe contract of 1842 was entered into. This court pro- ized it to contract, and such contract is imperfectly nounced that contract valid, notwithstanding the ex- made, it is within the power of the State to validate it. istence of the act of 1836. We are not to presume that

If, therefore, the contract of 1849 was not, as is conthe court overlooked that act when the validity of tended, in conformity to law, the act of 1855 declared that contract was the direct question before them in it to be legal, and that it should be carried out “ actwo cases.

cording to the intent and meaning of the parties thereIt is also said that the contract of 1849 18 void be- to." cause it is not supported by any consideration. If the general assembly in the act of 1855, instead of Whether this be so or not can make no difference, if, referring iu general terms to all contracts made by the by the act of 1855, it was validated — ratified by the trustees of the town of New Franklin, had incorporState speaking through the general assembly. It is ated in the act the contracts of 1842 and 1849, in the declared in the Acts of 1855, p. 467, “that all contracts very words in which they were expressed, they would made by the trustees of the town of New Franklin for not have been rendered more valid than they are under the purpose of raising the amount authorized in the the act which includes both of them by the expression act of incorporation * * be, aud the same are therein contained. Both stand upon the same foothereby declared to be legal and may be carried out ing and are to be regarded as the contracts of the State, according to the true intent and meaning of the parties which it, no more than an individual, can violate. thereto." The words of this act are unambiguous. At It is also urged that the act of 1855 is obnoxious to the time of its passage but two contracts had been that provision of the Constitution which declares that made by the trustees - one in 1842, the other in 1849. the legislature shall not pass any law retrospective in Besides these, no others were in existence to which its operation. The cases to which we have been cited the language of the act could be applied. The legisla- in support of this view are cases in wbich the legislature could not have referred alone to the contract of ture uudertook to make acts valid between individu1842, because they used the word “contracts,” which als which were void in their inception, as, for instance, embraced not only that but all others. The contract that a deed executed by A to B, though void when of 1842 needed no legislative ratification to support it, made, should be held valid; or that a deed made by au because long prior thereto it had been upheld by the insane person should be legal and binding. The prinjudgment of this court. The contract of 1849 had not ciple decided in such cases has no applicatiou here, for at that time undergone judicial scrutiny, nor had its the reason that the State, as one of the contracting legality been passed – and the presumption is that the parties, had the same right to consent to the modificageneral assembly, because of the existence of doubts tion of the coutract made in 1849, as it had to confer as to its validity, intended to remove them and make original authority on the town of New Franklin that clear which bofore was questionable. We are un- through its trustees to enter into the contract of 1842. acquainted with any principle of construction which H. & St. Joe R. R. v. Marion Co., 31 Mo. 303; Barton would justify us in applying the act of 1855 to the Co. v. Watson, 47 id. 189; Stein v. Franklin Co., 48 id. contract of 1842, which needed no aid or support It is further urged that, because of the misuser of the to the exclusion of that of 1849 which, the argument money paid to the trustees under this contract, the of respondents tends to show, did require confirma- assignees of Gregory have lost all rights acquired by tion to give it force and effect. Both are embraced them and that the State can claim a forfeiture of the in the terms of the act, and we cannot do violence to privilege granted on that account. it by giving to the words it contains a more restricted The evidence in the case clearly shows that the trusmeaning than they import. It is settled that a subse- tees did not apply the funds realized to the object for quent ratification by the State of a contract made by which they were intended, and which this breach of one of its own agencies is equivalent to a previous au- duty might have been addressed to the legislature as a thorization. Stein v. Franklin Co., supra.

cogent reason for the withdrawal of the bounty beThe contract of 1849 was so made because by the act of stowed or the total destruction of the town of New 1833 the town of New Franklin became a publio as con- Franklin as a municipality. It does not follow that tradistinguished from a private corporation; and such the State through a proceeding in qulo warranto can public corporations are called into being at the pleasure for such cause forfeit and take away the right acquired of the State, and neither the charter nor act of incor- by the assignees of the Gregory contract so long as the poration is in any sense a contract between the State

power conferred by the act of 1835 upon the trustees and the corporation. The same voice which speaks to contract with other persons for drawing and manthem into existence may speak them out. 2 Dill. Mun.

aging said lottery remained unexecuted by them. The Corp., $ 30. Such corporations are the auxiliaries

State, through its legislature, could have taken from of the government in the important business of mu- the town of New Franklin the right to raise money in nicipal rnle, and cannot have the least pretension to that way, such right being a mere bounty, subject to sustain their privilege or their existence upon any recall or repeal without such repealing law, being obthing like a contract between them and the legislature. noxious to the prohibition against the passage of a law Ang. and Ames on Corp., 8 31. When the State, how- impairing the obligation of contracts. ever, does create such agency, and through it contracts Wheu, however, this power is executed and a conwith a third person whereby rights become vested in tract 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 caunot 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 ? 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 impolicy of the act of the general assembly in granting the privileges it did to the town of New Frauklin, 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.

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 assigument 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 expeuses 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 assiguments 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.






K v.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

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