The answer was simply the denial of the existence of the phenomena. What lawyer ever tried to explain the loss of a case upon the hypothesis that he had lost it?

That a lawyer can not lose a case is as well established a maxim as that "the king can do no wrong," or that a tenant can not deny his landlord's title. Eliminate this error in our question, and it is easy of solution.

Coke tells us that " law is the perfection of human reason;" Burke, that it is the most excellent-yea, the exactest of the sciences; and the eloquent Hooker, that her seat is the bosom of God, her voice the harmony of the world, all things in heaven and earth do her homage-the least as feeling her care, and the greatest as not exempt from her power. But we know that if it be the purest of reason, the exactest of sciences, its administration is not always intrusted to legal scientists or the severest of logicians. We know that the great, the crowning glory of "our noble English common law" is its uncertainty, and therein lies the emolument and pleasurable excitement of its practice.

If, oblivious of this, you shall have assured your client of success in the simplest case, the hour of his disappointment will be that of your tribulation, for which professional experience can extend to you no solace or aid.

But your client's cause has resulted unfavorably. You, of course, are never to blame; the fault is that of the judge, the jury, or your client himself, and, it may be, of all three. It becomes your duty to divert the tide of your client's wrath into those channels where it can do the least possible harm. If he be a crank and shoots the judge or cripples a juryman, they fall as blessed martyrs, and their places and mantles are easily filled, but the place of the lawyer is not readily filled, as one of America's sweetest poets, Mr. George M: Davis, has beautifully expressed it in a touching tribute to our professional worth, which, for delicacy of sentiment, boldness of imagery and beauty of diction, is unequaled in the whole range of English poesy:

"Judges and juries may flourish or may fade;
A yote can make them as a vote has made;

But the bold lawyer, a country's pride,
When once destroyed, can never be supplied."

The selection, then, of a target for your client (I use the word target metaphorically) must rest upon the peculiar facts and circumstances of the case and the "sound discretion," as the venerable Story has it, of the counsel. But avoid, if possible, imputing the blame to your client, for although I have known this to be attended with very happy results, yet his mood at such times is apt to be homicidal, and besides, you should bear in mind that your aim is to conciliate him.

First, as to the jury. Upon this head I need not enlarge, but only remind you that you are not held by the profession as committed or estopped by any eulogism, however glowing, you may have pronounced during the progress of the trial on their intelligence or integrity. It is only in the capacity of a scape-goat that the American juror attains to the full measure of his utility, and as such he will ever, be regarded by our profession with gratitude not unmingled with affection.

But it is to the judge that we turn in this extremity with unwavering confidence. The serenity and grandmotherly benignity that sits enthroned upon his visage is to the layman that placidity of surface which indicates fathomless depths of legal lore; to the lawyer it bespeaks the phlegmatic temperament of one whose mission is to bear unmurmuringly the burdens of others.

It comes upon you like a revelation, that your elaborate preparation, your weeks of study, your voluminous brief, are. all for naught; that the impetuous torrent of your eloquence has dashed itself against his skull only to envelop it in fog and mist, and, more in sorrow than in anger, you confess that the presumption that every man knows the law can not be indulged in his favor. Even your luminous exposition has failed to enlighten him. You need not spare him. He thrives on abuse. Year in and out he bears the anathemas of disappointed lawyers and litigants with the stolid indifference of Sancho Panza's ass in the valley of pack-slaves or under the missiles of the galley-slaves, and society comes finally to regard him pretty much as was Sancho's ass. It berates him, overtasks him, half-starves him, and loves him.

But seriously considered, our question is but a long-standing and harmless jest of the bar, meaningless in actual practice. The lawyer is untiring in his client's behalf, and his client

knows, whatever be the result, that he has had the full measure of his lawyer's industry, zeal and ability, and requires no explanation.

Lord Erskine said, that in his maiden speech "he felt his children tugging at his gown, and heard them cry, 'Father, now is the time for bread.'" The British bar applauded the sentiment. But the American lawyer, throughout the case feels his client tugging at his gown, and, if unsuccessful, is sustained by the consciousness that he has done his whole duty as God has given him to see and perform it, and if he wants further consolation he can open one of the oldest of all the books of the law, and there read these words, which will soothe his wounded spirit, and possibly best answer the question of to-night:

"I turned, and saw under the sun that the race is not to the swift, nor the battle to the strong, neither yet is bread to the wise, nor yet riches to the man of understanding, nor yet favor to the man of skill, but time and chance happeneth to them all."

NOTES OF CASES.

DEAF AND DUMB WITNESSES.

In the case of Quinn v. Hulbert, the Supreme Court of Vermont held that a person was a legal witness, although "dumb," uneducated in the use of signs, and only able to assent and dissent in answer to direct questions by a nod or shake of the head; but that such facts detract from the weight of his testimony. Because of some infirmity of the vocal organs the witness was bereft of the power of speech. His testimony was admitted over the objection of counsel.

The court say: "He could not explain any proportion, but only assent or dissent in answer to direct questions by a nod or a shake of the head. And when asked who owned the goods, he would touch his person to indicate that he was the owner * * The witness was dumb; and at common law would not be probably admitted to testify. Modern education has done much to give this unfortunate class of persons the capacity to convey ideas-in many cases with

* **

marvelous facility and exactness-by signs and symbols, and such persons are now proper and legal witnesses. The plaintiff was uneducated in the use of signs, and his capacity to convey his ideas very circumscribed and limited. But the tendency of modern times is to allow all persons that have knowledge of matters in litigation, and capacity, to throw light upon them, whether interested or otherwise, Jews, Turks, infidels, and allow the jury to consider their relation to the case, and condition, as affecting their credit. We think the plaintiff was a legal witness; but the court should have complied with the defendant's request and called the attention of the jury to the plaintiff's peculiar disability, as affecting the weight of his testimony."

It is well settled that a deaf mute is a competent witness when he knows the nature of an oath and is possessed of understanding; Barton's Cases, 1 Leach Cr. Cases 455; 23 Alb. L. J. 183.

CONTRACTS-OFFICIAL DESIGNATION.

Where an obligation in the body of an instrument purports to be a personal obligation of the one signing it, and it is signed by a man as "agent," "trustee," or the like, such person is personally liable for the debt although made as agent for the benefit of his principal, where such agency is not disclosed. Revolving Scraper Co. v. Tuttle, (Ia. June, '83), 16 Rep. 206. To same effect is Insurance Co. v. Newhall, 1 Allen 130; Fiske v. Eldrige, 12 Gray 474; Sturdivant v. Hall, 59 Me. 174; Barker v. Insurance Co., 3 Wend. 94; Powers v. Briggs, 79 Ill. 493; Moss v. Livingston, 4 N. Y. 208. Where the agent adds. to the descriptive term "agent" or the like the one for whom or in whose interest the contract is made, it has been held to be the contract of such principal; Lacy v. Dubuque Lumber Co. 43 Ia. 510.

But where a man acts for his principal, and such fact is known by those dealing with him, it has been held that his contract, though executed in his own name, is binding on the parties the same as though signed in the principal's name; Huntington v. Knox, 7 Cush. 371; Higgins v. Senior, 8 M. &. W. 840; Tainter v. Prendergrass, 3 Hill 72; Stonewell v. Elder, 39 Wis. 615; Freeman v. Lader, 11 Ad. & E. 587-94.

ORIGINAL ARTICLES.

LAW OF HOMESTEADS IN OHIO.

Having recently had occasion to examine with care one branch of the law of homesteads as it at present stands in Ohio, to wit: the power of the owner of a homestead to sell the same free from judgment lien, where it would be subject to execution and sale were it not a homestead, I find it not only a nice question, but one of interest to all attorneys with an active practice. A word on this question, I think, will be of value to the many readers of the OHIO LAW JOURNAL.

After a careful examination of the authorities on the subject, I am firmly of the opinion that where a homestead has been set off and assigned under section five thousand four hundred and thirty-eight of our Revised Statutes, as exempt from sale on execution, no judgment lien can attach to the homestead so set off and assigned; and also that the owner and holder thereof may sell and convey it free from all liens of judgments previously recovered against him.

This conclusion I believe to be supported both by principle and authority.

Under the common law, real estate could not be levied upon and sold for the satisfaction of a judgment recovered against the owner (Rorer's Judicial Sales, sec. 531). "The remedy," says Rorer, "of the creditor was against the rents and profits. First, by the writ of levari facias, and subsequently by the writ of elegit. The latter was given by the Statutes of Westminister, 2-13 Elizabeth."

Now, it will not be questioned by the merest tyro in the law that the existence and extent of a judgment lien on real estate are purely legal and depend entirely upon the statute which gives them being. This principle of law is too well settled to bear dispute. The Supreme Court of Ohio has so held at different times (Douglass v. Thurston, 6 Ohio 156; Miller v. Taylor, 29 Ohio St. 259; Lawrence v. Belger, 31 Ohio St. —). In Miller v. Taylor, the court say that "at common law the lands of a debtor were not chargeable with his debts, and