run on the policy. The court held that inasmuch as no part of the premium was repayable, nothing was due to the assured, and no money was to be returned to him, and consequently no tender was required. (7) Though the mortgagees to whom the insurance money is payable are entitled to notice of the withdrawal of the contract of insurance by the insurer, they take their contract subject to be defeated by the breach of the conditions of insurance by the assured. State lus. Co. v. Maackens, supra; Warbasse v. Sussex Ins. Co., 13 Vroom, 203. Sup. Ct., N. J. Lattan v. Royal Ins. Co. Opinion by Depue, J. (16 Vroom, 453.)

occur.

FIRE-STATEMENTS NOT IN APPLICATION-INCUMBERING PROPERTY--OTHER INSURANCE--RECOVERY.--(1) Where the secretary of an insurance company fills out an application for insurance, the company is presumed to waive any statements of fact that are not inserted in the application, and are not called for until after losses (2) Incumbering insured property, without notice to the insurance company, does not avoid the policy if neither the by-laws of the company nor the contract of insurance provides for such avoidance. (3) Chattel mortgages on growing crops are not to be regarded as increasing the hazard of insurance until the crops are harvested. (4) A provision in the by-laws of an insurance company that notices of other insurance of increased hazard by mortgage, and of whatever else affects the rights of the parties, must be made to the secretary, and that his approval must be indorsed, is not necessarily to be construed as providing for the avoidance of the policy if such notice is not given. (5) False swearing by an insured person will not necessarily defeat his right to recover upon the policy if it was not done with fraudulent intent to obtain more pay than he was entitled to. Sup. Ct., Mich. April 16, 1884. Tefenthal v. Citizens' Mut. Fire Ins. Co. Opinion by Sherwood, J. (19 N. W. Rep. 9.)

ATTORNEY FEES.- To constitute a note negotiable under the law-merchant, it is essential that the promise must be "to pay a certain sum of money unconditionally." The notes in question containing a stipulation to pay ten per cent as attorney's fee for collecting the same, which amount must be construed to mean a reasonable collection fee not exceeding ten per cent, an element of uncertainty is added as to the amount recoverable by action, and the notes are not negotiable. Whether this stipulation renders the amount uncertain recoverable upon the notes in question depends - 1st, upon the question whether the stipulation is valid for any purpose; and 2d, whether the amount stipulated to be paid is conclusive upon the parties as to the amount which may be recovered for such costs. This court has repeatedly held that a stipulation in a mortgage to pay attorney's or solicitor's fees, other than the taxable costs, in case it becomes necessary to foreclose the same, is not void and will be enforced when the amount stipulated to be paid is reasonable. See Boyd v. Sumner, 10 Wis. 41; Rice v. Cribb, 12 id. 179; Hitchcock v. Merrick, 15 id. 522; Mosher v. Chapin, 12 id. 453; Tallman v. Truesdell, 3 id. 443; Reed v. Catlin, 49 id. 686-691; 6 N. W. Rep. 326. This amount therefore fixed by the parties is not conclusive upon the defendant, and the amount to be recovered under such a stipulation must be fixed by the court or jury on the trial of the action. In some of the States, viz., in Michigan and Kentucky, such stipulations are held void as contrary to public policy and the statutes regulating costs recoverable in actions. See Bullock v. Taylor, 39 Mich. 137; Witherspoon v. Musselman, 14 Bush,214. In other States they are held binding, and as this court has held them

*

valid in case of mortgages, to be consistent they must be held valid when applied to the collection of money on notes or securities other than mortgages. It must be admitted therefore that a stipulation of this kind does render the amount recoverable on the notes uncertain when an action is brought upon them in this State. When the amount recoverable in an action upon a written contract, whether in the form of a promissory note or otherwise, is uncertain, such instrument is not negotiable, as is held by most of the courts which have considered the question. In the opinion of the Supreme Court of Pennsylvania in Woods v. North, 84 Penn. St. 407, Sharswood, J., who delivered the opinion in that case, says: "But in the paper now in question there enters as to amount an undoubted element of uncertainty. It is a mistake to suppose that if this note was unpaid at maturity, the five per cent would be payable to the holders by the parties. It must go into the hands of an attorney.for collection. It is not a sum necessarily payable. The phrase 'collection fee' necessarily implies this. Not only so, but this amount of percentage cannot be arbitrarily determined by the parties. It must be only what would be a reasonable compensation to an attorney for collection. This, in reason and usage of the legal profession, depends upon the amount of the note. * ** *How then can this note be said to be certain as to its amount, or an amount unaffected by any contingency? Interest and costs of protest, after non-payment at maturity, are necessary legal incidents of the contract, and the insertion of them in the body of the note would not affect its negotiability. * * But a collateral agreement, as here, depending too, as it does, upon its reasonableness, to be determined by the verdict of a jury, is entirely different. If this collateral agreement may be introduced with impunity, what may not be?" To the same effect upon the same point are Garretson v. Purdy (Dakota). 14 N. W. Rep. 100; Jones v. Radatz, 27 Minn. 240; 6 N. W. Rep. 800; Bank v. Trenton, 63 Mo. 38; Hardin v. Olson, 14 Fed. Rep. 705; Bank v. Bynum, 84 N. C. 24. In a late case in the Supreme Court of Maryland the rule laid down in the cases above cited is approved and followed after a full consideration of the cases holding a contrary doctrine. Maryland F. & M. Co. v. Newman, 29 Alb. L. J. 213. The following cases hold that a stipulation in a note to pay collection fees, either of designated or uncertain amount, in case suit be brought to recover the amount due on the note, does not take away its negotiability. Stoneman v. Pyle, 35 Ind. 103; Wyant v. Pottorf, 87 id. 512; Sperry v. How, 32 Iowa, 184; Seaton v. Scoville, 18 Kan. 433; Deitrich v. Bayhi, 23 La. Ann. 767. These last cases place their decisions upon the ground that it is sufficient if the amount is certain which will discharge the note if paid when due, and that any stipulations which render the amount uncertain only in case payment is not made until after the same is past due, does not take away the negotiability of the note. We think the rule laid down by the courts, which hold the notes not negotiable when the amount recoverable by action is not certain and fixed, is the better rule, and that the public interests require that negotiable promissory notes should not be connected with other collateral agreements which render the amount recoverable thereon uncertain. Sup. Ct., Wis. April, 1884. First Nat. Bank of Stillwater v. Larsen. Opinion by Taylor, J. (19 N. Ŵ. Rep. 67.)

*

* *

CERTIFICATE OF DEPOSIT-ALTERATION.-Where a party takes a certificate of deposit from a banker, and in selling it induces and allows another party to fill up the printed blank so as to make it draw 10 per cent interest, no such rate being agreed upon by the banker, he adopts the fraudulent alteration as his own act, and the certificate becomes void. The original cause of action upon the account was merged in the certificate, and the circumstances under which it became void do not justify the court in holding that it revived by reason of the fact that the certificate became void. No recovery can be had on the certificate, or on a count for the money given for it. Sup. Ct. Iowa. Woodworth V. Anderson. Opinion by Adams, J. (19 N. W. Rep. 296.)

and most useful citizens. He has died untimely, too, at the age of sixty-six, when we hoped so much from his counsels and his example. Worn out in the public service, in a department not the most congenial to him, for his heart was ever with our profession, he has fallen a victim to his sense of duty, and has given his life for his country as fully

as if he died on the battlefield in defense of her honor or her rights. What we shall say of him may be tinged by the personal affection and reverence which we have long borne for him, and it is impossible to write critically when the tears almost obscure the page as we dwell upon the memory which we bless, and which will remain to us as long as life remains.

There is no need to rehearse Secretary Folger's public services, for they are the well-appreciated property of the Nation. There is little need to speak of his character, which was unblemished, and a synonym for dignity, integrity, candor, fearlessness, firmness and devotion. It is much that a man goes through a long public life without incurring a single hostile imputation; it is more that when he is dead and gone every survivor, foe as well as friend, will rise up and testify that he never deserved any. Even when he was made the victim of an overwhelming denunciation of political methods and party intriguers, no breath ever tarnished his fair fame - he was a blameless victim. Of Judge Folger's learning, research, wisdom and acuteness, and of his original and peculiarly forcible and felicitous style of writing, the pages of our law reports bear most ample witness. find his opinions quoted in other States with great frequency and respect. No one however who has not, like ourselves, had occasion to delve in the pigeon holes of the reporter, can have any conception of the amount of labor he performed as a judge. Scores of opinions were written by him, apparently simply to satisfy his own mind, and marked "not to be reported," or "to be reported only in part, if at all." Here, as well as in his administration of the National affairs, he evinced his unfailing determination to master every thing for himself, and to take nothing on trust. Undoubtedly this trait existed in him to excess, and has shortened his inestimable life.

We

he

ing to the pressing importunities of a friend high in office, and to the promptings of an old friendship, and deserting our bench for the National treasury. The life and the occupation were uncongenial to him, but he would not be driven from his office by the creatures who wanted it, or who desired improperly to use him and could not. He was determined to stay in office only because he thought it his duty, and not because he was ambitious or loved office unduly. He was not ambitious, we think, at least not in the sense of a fault. He once wrote us, and we believe sincerely could have had no object in being insincere with us, even if his nature could have permitted it: "I do not want to be governor. Few will believe it. Few will think that I am not ambitious. Few will ever understand how my judgment and my desires yielded to friendship and a sense of duty, when I came here. I have proposed to myself to work steadily on in the place of trust, until the end. I am not ambitious. Give me a competency nay, a little more, so that I can have pictures and books and horses and friends about me - and though bounded by a nut-shell, I count myself a king of infinite space." This was from Washington, April 5, 1882.

I was

Again, on the 7th of August last less than a month before he died- - he wrote us: "I am glad that you are to have a rest. I wish that I was. I hope that I am. I am seriously out of health and spirits, and the world is not bright to me. at Geneva for some days, but not for rest or sport. I am back here" at Washington - "and find my table full of papers waiting my perusal and disposal. But there is a break in the clouds.

The

4th of March, 1885, is the rift. I wish that I could cut out a large strip of time between now and then, and patch it on to the thither side of that day of jubilee." We do not believe that Judge Folger was in any sense the victim of a disappointed political ambition. Undoubtedly he felt his overwhelming political defeat, but he had foreseen it and calmly faced it, and certainly ought to have been proud of his fall on a field where all was lost save honor. He has more than once assured us that if his party could afford the result, he thought he could. And once, of late, when we expressed our regret that he had ever left our State and our bench, he replied, with great earnestness and sadness, you are not half so sorry as I am." The nearest approach to complaint or repining that we can recall in his correspondence with us, is the following:

"I have read nothing but miserable newspapers; having not had the mental fibre even for a novel. These awful newspapers:

Fling forth a lie amid the crowd,
Let but the papers vouch 'tis true,
And Innocence may buy a shroud,

And Guilt stalk forth in garments new.'"

A trait of Judge Folger, not commonly known, was his love of literature, both legal and general. Even in the midst of his engrossment in the treas

ury, he found time to carry on with us a correspondence on literary topics, and to send us many curious results of his wide reading, and many acute reflections suggested by it. He told us last winter that when he got "a little time" he was going to send us an article on singular family names, suggested by curious titles of law cases, of which he had once made a list. Very frequently in his letters we find poetical quotations which we cannot trace to their source. But the saddest and more characteristic letter that we ever had from him was written at Geneva, on the 27th of August, a week before he died - probably one of the last letters he ever wrote. We love to think, from the closing sentence, that it may have been the very last. At all events, we cherish it as his dying legacy to us. He

says:

"I am at home sick; but I can read a book; and doing so this forenoon I strike this, which may amuse you, and lead you to look up the piece: Lucian wrote a whimsical piece called Aìký Þovnèvtov, the lawsuit of the vowels.' Had I access to books here I would search for it; but alas! I can walk but a few steps at a time, and to climb a library step-ladder would be stepping into futurity.

"There is or was a poet named Motherwell. I once met in one of Littell's Mag. a poem of three or four verses, called 'The Auld Ash-Tree,' or something like it, I think by him. I cut it out to save it, but it has cut me and gone, evasit, erupit. Perhaps some one hab stole it. Did you ever meet it? The doctors say I must not work, even to write a letter. So I stop."

This is in his beautifully legible handwriting, with all his accuracy of puncuation. What a picture of his fortitude, patience, playfulness, affectionateness, and love of books and poetry this little letter gives us! We had it in our hands to answer it, when the news reached us of his death.

We must leave it to abler and calmer minds than ours to analyze and describe his character. At present we can only say, farewell, grave and wise statesman, profoundly accomplished lawyer, learned and equitable judge, elegant scholar, affectionate and faithful friend, noble and unblemished man! Such virtue and such wisdom cannot perish. The thought that we may meet thee again and hold converse with thee renders us almost indifferent to the ills of life. Let us look upon thy picture in the high court room of our State, and praise thy memory, and recommend thine example to thy successors and to all coming generations of the country for which thou hast toiled and which thou hast died to serve. Would that this poor tribute could be as lasting as our love and reverence for thee!

A FORGOTTEN TRAGEDY.

N these days when dissatisfaction with the slow, inal law is so generally and loudly expressed, it may

be worth our while to look back to the annals of the past, and examining its long and ghastly record of judicial murders, to pause and see if the old saw, "better that nine guilty should escape than that one innocent should perish," is not, after all, exactly true. It is not by the famous instances which are every-day citations that we can judge of the number of victims that have been immolated on the altar of a hasty vengeance, miscalled justice, but by these long-forgotten tales of wrong that lie hidden in the dusty recesses of English archives. Let us drag one such story to light, a story strange in all its circumstances, but singular not so much in its terrible injustice as in the completeness with which that injustice was afterward revealed - too late for human redress. This is no cause célèbre, but the tragedy of a quiet country side, one sample of hundreds long since forgotten by mankind.

On Thursday, August 16, 1660 (Car. II, D. G. Reg.), William Harrison, a man seventy years of age, and the trusted steward of Lady Campden, of Campden Hall, Gloucestershire, went from the Hall to the village of Charringworth, about two miles distant, to collect rents. He did not return at his usual hour, and night approaching his wife sent a man servant, one John Perry, to meet him and escort him home. Neither master nor servant reappearing, Edward Harrison, the steward's son, started very early next morning for the village, and on his way met Perry, who told him he had made inquiries at Charringworth, but Mr. Harrison was not there. Thence they went to Ebrington, and after various inquiries found a poor woman, who whilst out "leesing" (gleaning), had picked up the missing man's "hat, band and comb," hacked with a knife and covered with blood, in the highway. A general search now took place throughout the district, but no further traces of the murder could be found, nor was the body discovered.

Perry's absence from the Hall over night caused suspicions to attach to him, and he was brought before a justice of the peace and examined. He stated that after starting for Charringworth he grew afraid of the darkness, and meeting William Reed turned back with him as far as the Hall gate, where they parted. After this one Pearce came along, and he started a second time with him, but his heart failing him, he again returned and went into the hen-roost, where he lay for about an hour, but slept not, and on the clock striking at midnight he rose and started a third time for the village.

He lost his way in a fog, and spent the night under a hedge. Before day-break he resumed his journey, and after calling at a house there started back, and met his master's son, as before narrated. Reed and Pearce corroborated his statements as to their meeting him. Being asked "how he, who was afraid to go at nine, became so bold as to go at twelve?" he answered that at nine it was dark. but at twelve the moon shone. Asked again "why, returning twice home, he went not into the house fore starting a third time?" he answered that he

knew he was not come home, because he saw a light in his chamber window, which never used to be there so late when he was at home. His explanation however was not considered satisfactory enough to clear him, and he remained in custody till the following Friday, August 24th, when he stated that if he were again carried before the justice he would discover to him what he would discover to nobody else." He was accordingly again placed before the rural Solon, and stated that Harrison had been murdered, but not by him. Being urged to speak out, he said that it was his (Perry's) mother and brother who had committed the murder. Aghast at this, the magistrate cautioned him earnestly to beware what he said, but he persisting, his confession was ultimately received. He said that ever since entering Harrison's service his mother and brother had urged him to help them to money, and had finally suggested that he should give them notice when Harrison went to receive the rents, and they would waylay and rob him. On the morning of the murder he met his brother, and told him of his master's journey, and in the evening when sent to meet Harrison he found his brother lying in wait. They walked together to the church-yard, a short distance from the Hall gates, and there parted, John going through the yard, and his brother following the highroad which bent around the church. At the other side they met again, and kept company till they reached a gate leading into the Careygre grounds, through which was a short cut to the Hall for those having a key. Approaching, they saw some one pass through the gate, and concluding it was his master he left his brother to enter the Careygre alone, and walked up and down a short while. Then entering the grounds he found Harrison on the ground, his brother, Richard Perry, kneeling on him, and his mother, Joan Perry, standing by. Harrison was not then dead, but his brother strangled him, and took a bag of money out of his pocket. They carried the corpse into the garden, and after consulting what to do with it, agreed to throw it "into the great sink by Wallington's nuill, behind the garden." The prisoner however went up to the house to guard against interruption, and he did not see the body disposed of. In fact, he did not see either his mother or brother again that night. It was after all this that he returned to the Hall gate and met Pearce. The hat, band and comb he had slashed with his knife, and thrown into the highway to raise a false scent.

Upon so circumstantial a confession as this Joan and Richard Perry were of course arrested, and brought up for examination the following day. Both stoutly denied the charge, but in their presence, and in the face of their deaials and appeals, John Perry adhered to his statement, which, to the excited minds of the rustic bystanders, derived corroboration from the following incident: On the return from the justice's house "Richard Perry, following a good distance behind his brother John, pulling a clout out of his pocket, dropped a ball of

inkle, which, one of the guard taking up, he desired him to restore, saying it was only his wife's hair lace,' but the party opening it, and finding a slip-knot at the end went and showed it, and John, who was then a good distance before, and knew nothing of the dropping and taking up of this inkle, but being showed it, and asked whether he knew it, shook his head, and said 'yea, to his sorrow, for that was the string his brother strangled his master with." But a still more damning proof was to follow next day, "being the Lord's Day," the prisoners were brought to church, the parson doubtless thinking that his persuasive powers might succeed where the rigours of the law had failed, and on their way they were met by two of Richard Perry's children, who, running to meet him, "straightway both their noses fell a bleeding," a circumstance which, the chronicler tells us, was looked upon as ominous." Doubtless after this the guilt of all three was an accepted fact in the neighborhood, which it would have been impiety to question.

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And as if murder were not enough, a fresh crime was laid to their charge. In the previous year £140 had been stolen out of the Hall, under circumstances which showed a concerted plan between some inmate and parties outside. This robbery Perry now confessed to as being arranged and carried out between himself and his fellow-prisoners, and for this, as well as the principal offense, they were all committed to stand their trial at the approaching Assizes.

The corpus delicti however was still missing. The pool mentioned by Perry, and all other possible and impossible hiding places in the neighborhood were searched, but no body could be found. The pre

In September the assizes were held. siding judge refused to try the charge of murder in the absence of any evidence of the disposal of the body, but to the charge of robbery all three pleaded guilty. They claimed and obtained the benefit of the Act of Oblivion, passed on the occasion of the king's restoration, and their plea of guilty was probably entered with a view to this, but none the less, it remained a most damaging fact against them, as they found afterward to their It should also be noted that on this occasion John Perry persisted in his confession of the murder.

cost.

They remained in custody till the spring Assizes, when they were again arraigned on the capital charge, and pleaded not guilty." John Perry said he was mad when he made his confession, and knew not what he said. It was however put in evidence, and they were actually convicted, and in due course executed on Broadway Hill, in sight of Campden Hall. The mother was the first to suffer, "being reputed a witch, and to have so bewitched her sons they could confess nothing while she lived." Richard's turn came next, and he died imploring his brother "for the satisfaction of the whole world, and his own conscience, to declare what he knew." Last John mounted the gallows,