viz: "Now, during these years, from 1875 up to this time, have you been holding all Abbey's property? What property has Abbey owned that you did not hold ??' This was objected to on the ground that it was irrelevant and immaterial. Upon which counsel for defendant rose and made the following offer: "We offer to show that, through a large course of dealings between Moran and Abbey, Moran, without having consulted with Hancock, takes Abbey's money to the bank and pays the note; and that he held at that time all of the property of Abbey in his hands, and that the payment on that occasion, though nominally made by Moran, was in fact made by Abbey, growing out of the nature of the transactions of the parties." The same objection was made to the offer, and the Court sustained the objection, to which the defendants excepted, and the same is assigned as error. The fact in the issue made by the defendant, Heffner, was payment. That fact was provable not only by the circumstances attending the taking up of the note from the bank, but by those of the relation existing between Abbey and the plaintiff, and their course of dealing with each other in their business, and with reference to the property of Abbey. It appeared by the testimony of the plaintiff, in his examination-in-chief, that he had got possession of the note in 1877 under very suspicious circumstances. As a money-lender ho was intimately acquainted with all of Abbey's business affairs. He knew that the note had been given by Abbey to secure payment of money borrowed by him, and that Heffner was, in fact, only the surety of Abbey, although he had signed the note with him as a principal. He also knew that, before the maturity of the note, Abbey had become insolvent, and had been declared and adjudged a bankrupt by the judgment of the United States District Court for the District of California; and he had a "crop mortgage upon all of Abbey's crops. It was under those circumstances that Abbey one day informed the plaintiff he had heard Heffner was trying to borrow money to take up the note in question, and suggested to him if he had the money, he could take the note out of the bank and hold it himself, as it was drawing good interest." Solely upon that suggestion, the plaintiff, without seeing the owner of the note, or having any negotiations with him, or any one else, for purchasing it, went to the bank, where the note had been left for collection, told the managing agent of the bank to figure up the principal and interest que upon it, and, when the amount was ascertained, he counted it out on the counter. The agent took the money and passed the note unendorsed to the plaintiff, who made no request for a transter of the note by endorsement or otherwise. But he took it and "put it away in his safe among the balance of his papers," where it lay for over two years, when he took it out to bring suit upon it. On taking it to his lawyer, he was advised that it ought to be endorsed by the payee. For that purpose he took the note to Hancock, to whom it had been given, who, after niany objections and much reluctance, finally consented to endorse it " without recourse." And not only did the plaintiff obtain possession and endorsement of the note under suspicious circumstances, but his testimony as to the nature of the transaction itself was equivocal, as is apparent from his answers to the following questions, asked him by his own counsel: "Q.-Did you pay the note at the request of Abbey? "A.-I paid it at the request of Mr. Abbey. 44 Q.- Did you pay it or buy the note? "A.-I bought it out of the bank. "Q.-Did you satisfy or buy the note? "A.-I bought the note right out of the bank." But from whom did he buy? Not from the owner or any one authorized to sell; not even from the agent of the bank. In his examination-in-chief he declared: "I took the note up at Abbey's request, without seeing the owner or making any trade with him at all. I knew Hancock, to whoin the note was given. I never spoke to him about buying the note. * * I never had a conversation with him about it until I was going to commence suit upon it." After such evidence from the plaintiff, the defendant certainly had the right, in cross-examination of the plaintiff, to show that, before and after the bankruptcy of Abbey, and at the time of the tranaction with the bank, by which the plaintiff got possession of the note, the plaintiff had the charge and control of all the property of Abbey, and that, by course of dealings between them, he hal held and used the property by the sanction of Abbey, as security or otherwise, for his assumption of payment, or payment of Abbey's debts or bills. These circumstances in connection with the circumstances attending the transaction with the bank, would have tended to establish the truth of the fact, which was already rendered probable by the testimony of the plaintiff in his examination-in-chief, viz: Payment of the note by the plaintiff for Abbey, and at his request. If the note was then paid it could not have been revived in two years afterwards by endorsement. A transaction which amounts to payment of a note, cannot be transformed into a transfer of it by a subsequent endorsement. Such an attempt would be a fraud upon the makers of the note, and, as defendants to an action upon it, they should be allowed great latitude in proving their defense. When, therefor, the plaintiff, in testifying as a witness, admitted that he received the note in controversy after maturity, and under circumstances of suspicion, great latitude should have been allowed the defendant in cross-examining him as to all the circumstances or collateral facts which were capable at all of affording any reasonable presumption or inference of the fact of payment. If the facts offered tended in any way to constitute a link in the chain of proof which the plaintiff himself had forged, they were admissible, although alone they might not have been persuasive of the truth of the fact in issue. But, even alone, and as affirmative evidence by defendant, we think they were relevant, because they tended to prove the isssue. The meaning of the word relevant, says the Supreme Court of New York, as applied to testimony, is that it directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the truth of it. It comes from the French reliever, which means to assist. Whatever testimony was offered which would assist in knowing which party spoke the truth of the issue was relevant; and when to admit did not override other formal rules of evidence, it ought to have been taken. (Platner v. Platner, 78 N. Y. 95.) Judgment and order reversed, and cause remanded for a new trial. Motion No. 154. Sadie Cavan v. The State of Ohio. for leave to file a petition in error to the Court of Common Pleas of Erie County. Motion overruled. 155. German Aid Society v. Anna Kummer. Motion to dismiss cause No. 1026, on the General Docket, for want of printed record. Motion passed for new not.ce of time of hearing. 156. Ohio ex rcl Brackney et al v. Commissioners of Fayette County. Motion to take cause No. 579, on the General Docket, out of its order for hearing. Motion granted. 157. Charles Geyer et al v. Francis Wagner, Treasurer, &c. Motion to take cause No. 668, on the General Docket, out of its order for hearing. Motion granted. 158. Francis Wagner v. John D. Loomis et al. Motion to take cause No. 1118 on the General Docket, out of its order, for hearing. Motion granted. 159 Ferdinand Bergman v. The City of Cleveland. Motion to take cause No. 858, on the General Docket, out of its order for hearing. Motion overruled. 160. Robert M. Underwood v. Malinda Andrews. Motion to dispense wi h printing of the record in cause No. 1131, on the General Docket. Motion granted, and it is ordered that the cause, No 1131, on the General Docket, be advanced and heard with No 761, same docket, which involves the same question. 161. Cincinnati House of Refuge v. Patrick H. Ryan. Motion for leave to file a petition in error to the Superior Court of Cincinnati. Motion granted and cause taken out of its order for hearing. 162 John Clermont ». Irish Building Association, No. 1. Motion for leave to file printed record in cause 1087, on the General Docket. Motion granted and record filed. 164. Josephus Martin et al. v. Orson Lapham et al. Motion for leave to file printed record in cause No 977, or the General Docket. Motion granted, and the rule for filing printed record extended for 30 days. 165. Jeremiah Williams v. T. O. Little, Sheriff, &c. et al. Motion to strike certain parts of the bill of exceptions in cause No. 589, on the General Docket, therefrom. Motion overruled. 166. West Liberty Building Association v. Nicholas Jungkuntz. Motion for leave to file a petition in error to the Superior Court of Cincinnati. Motion overruled. 167. Ohio ex rel., Attorney General v. Rollin C. Powers. Motion to take cause No. 1036, on the General Docket, out of its order for hearing. Motion granted. 168. President and Trustees of Montgomery County Childrens' Home v. Superintendent and Trustees of the O. S. and S. O. Home. Application for writ of mandamus. Alternative writ allowed. 169. Charles Schneider v. The State of Ohio. Motion to take canse 1071, on the General Docket, out of its order for hearing. Motion granted, and cause set for hearing October 4, 1881. 170 Matilda P. Hart, Administratrix v. J. H. Devereaux, Receiver. &c. Motion to dispense with printing in cause 1184, on the General Docket. Motion passed for notice. 171 Jarvis Postlewait et al. v. Trustees, Pleasant Township, &c. Motion to take cause No. 1021, on the General Docket, out of its order. Motion granted. 172. Samuel A. Van Fossen v. The State of Ohio. Motion for lave to file a petition in error to the Court of Common Pleas of Muskingum County. Motion granted, and cause taken out of its order for hearing. 174. Samuel T. Billingsley v. The State of Ohio. Motion to take cause No. 1168, on the General Docket, out of its order. Motion grantel. James R. Hulse et al v. Enoch T. Coffland et al, Trustees of Jackson Township, l'ickaway County. Application of plaintiffs for a restraining order in No. 493. on the General Docket. Application refused. The court called cases Nos. 176 to 225, both inclusive. Counsel must see that these cases are prepared by the time they are reached, otherwise they will be dismissed. SUPREME COURT. Judges Okey, Johnson, White and McIlvaine, of the Supreme Court, reported promptly for duty last week, after the summer vacation, and entered earnestly at work, hearing and disposing of motions and examining cases on the General Docket. On Tuesday morning their report disposed of five cases on the general docket and over twenty motions. Tuesday morning, forty-one candidates for admission, were present for examination. Their applications were passed upon by the court and a favorable report made on all of them. The examining committee consisted of Hon W. J. Gilmore, Hon. J. D. Burnett, E. L. Taylor, Esq. and S. F. Marsh, Esq., of Columbus; Judge Bucking. ham, of Newark; and P. H. Bright, of Logan. The clasu was one of the finest looking that has ever appeared here for examination. The court, Judge Okey presiding, called fifty cases on the general docket, commencing with number 176. Those not responded to were marked submitted. After the call of the docket, the court heard oral argument in the case of Charles Schneider v. The State of Ohio. Error to the Court of Common Pleas of Hamilton County. Major C. H. Blackburn, representing the plaintiff in error; George K. Nash, appearing for the State. Chief Justice Boynton expected to sail from Europe, homeward bound, last Thursday, in which event, he is expected in New York the latter part of this week. NEW ATTORNEYS. The following applicants were admitted to practice John L. Zimmerman, Springfield. John B. McNamee, Cleveland. George W. Romspert, Dayton. F. E. Drummond, St. Clairsville. SUPREME COURT RECORD. [New cases filed since our last report, up to Cct. 5, 1881.] 1184. Matilda P. Hart, admr'x. v. J. H. Devereaux, Receiver. Error to the District Court of Trumbull County. Hutchins & Tuttle for plaintiff; L. C. Jones for defendant. 1185. Townsend Reed v. Michael Radigan. Error to the District Court of Licking County. J. B. Jones for plaintiff; Dennis & Dennis for defendant. 1186. Simon Sherman et al. v. James H. Pierce et al. Error to the District Court of Wood County. J. B. Dunn for plaintiffs; Tyler & Meehan for defendants. 1187. Frederick Holtz et al. v. James Dick. Error to the District Court of Richland County. A. J. Mack and Thomas McBride for plaintiffs; Dirlam & Leyman for defendant. 1188. John M. Bankhardt v. Johanna E. Freeborn. Error to the District Court of Cuyahoga County. Willson & Sykora for plaintiff; Foster & Carpenter for defeudant. Ohio Law Journal. CONTINGENT FEES. It has become exceedingly fashionable for law COLUMBUS, OHIO, : :: OCT. 13, 1881. | journals to discuss the legality and morality of THE NATIONAL REPORTER. The announcement of this forthcoming periodical-to be issued by the proprietors of the OHIO LAW JOURNAL-which appeared in No. 49 of the latter paper, was sent to forty thousand lawyers, including all in good prac tice in the United States. The expression of concurrence with our own ideas as to the desirability of such a publication has been so universal and so unexpected, indeed, that all doubt of its ultimate and complete success has given place to a firm faith that the first number will mark a most important epoch in the history of legal publications. We therefore take our first steps, with such caution as the importance of the enterprise demands, and in so doing modify our original purpose by changing the time of the issue of the first number of the NATIONAL REPORTER to January, 1882. By this modification we will commence with the new year, and will publish in full all the decisions of all the Courts of last resort in all the States and Territories of the United States-rendered after January 1st, 1882. The terms will remain unchanged. The great number of orders now in our hands will receive the proper attention at the proper time, and the wishes of each of our many correspondents will be fully complied with. The NATIONAL REPORTER is copy-righted and its appearance and continuity a foregone certainty. Contir.gent Fees. The opponents of this very common method, of paying attorneys, may perhaps derive some comfort from the fact in the case of Chester Co. v. Barber, just decided in the Pennsylvania Supreme Court, it was held, " that a contract by county commissioners to pay counsel a contingent fee out of a fund sought to be recovered from the State Treasurer, is ultra vires commissioners would and therefore void; that the power of county not extend in such a case, further than to allow them to contract to pay a reasonable compensation, and that an agreement for any more than this is against public policy and void." The court avoids any consideration of the legality of contingent fees in general, or as to whether the English acts against champerty were ever extended to Penn sylvania. In this case, the point made by the court was, that the compensation agreed to be paid as the attorney's fee was unreasonable. That certainly cannot affect the legality or otherwise, of the contingent fee. The court could hardly say whether the fee must be paid out of a fund in hand or out of a fund to be recovered by a suit at law. And we feel confident that to that point courts will not soon proceed. The fact of the matter is, that a contingent fee in a proper case, is precisely as legal and as righteous as any other fee. And the ability of a lawyer to pay in advance or the willingness of the employee to wait for his pay, until the work is done, is purely a private matter and courts and public writers as well, who attempt to meddle, would do well to remember the eleventh commandment. Champerty and contingent fees are not necessarily combined or related to each other in any way whatever. It might as well be said that Col. Bob Ingersoll, when he received his one thousand dollar retaining fee for the defence of stolen goods or the Star Route Thieves, became the receiver of an accessory after the fact, because the one thousand dollars was a part of the stolen property. Why do not these sticklers for high morality go to the length of saying, that the money paid to an attorney by any thief is of necessity stolen money, and that the attorney becomes particeps criminis in receiving it and making a defence. There would be more sense and more plausibility in that, than in the wholesale denunciation of contingent fees. The whole matter may be summed up briefly: No righteous cause can be made wrong, and a contract therein for the payn at of attorney's fees can not become champertous by simply making the time of payment or size of the fee contingent upon the success of the party in the right. And no unrighteous cause can be made right and proper, legally and morally, by the payment of a fee in advance or absolutely free from any contingencies. If any reasoner or heavy law-writer can change these plain propositions let him speak. and slighted the work. After years of litigation she found her money all gone and her wrongs no more nearly righted than when she began. She then consulted Johnson, than whom no more honest man ever lived, and offered him a certain per cent. of all he could recover. He took the case and fought it bravely and successfuly. His fee when paid, as it was in one check, amounted to the nice little sum of thirty-three thousand three hundred and thirty-three dollars. Had this poor widow consulted an honest lawyer at the start and contracted for the payment of a contingent fee, she would have saved many long years of agony and the loss of many thousand dollars paid to lazy scoundrels with sham honesty and no ability beyond a clamor for fees in advance, and a holy horror of any contract by which they would be compelled to succeed or get no fee whatever. THE SUPREME COURT. In this connection we may say that the largest single fee we have ever known to be paid, in this State, was a contingent fee earned by and paid to Judge Johnson of the Cincinnati Bar. The facts in that case were peculiar and interesting. The plaintiff was the widow of a contractor for supplies to the Federal army in the war of 1812. By the terms of the contract the contractor had agreed to furnish to the government a certain number of rations at twenty-five cents per ration. Payment was to be made upon the delivery of the rations to the quartermaster. When the British invaded the country and burned the capital a panic ensued and the price of flour and bacon ran up to such a high figure that the contractor was unable to continue the supply unless the government paid him a large amount of money then due. This the govern. ment could not do, and the contractor was not bound to go forward-the government having failed to perform its part. The secretary of war sent for the contractor and told him that there was no money in the treasury, and no provisions for the army, and things were in a very bad condition indeed; that if he could or would make an extra effort, that the government would allow him forty-five cents per ration for all he would furnish to the army. The contractor did make extra efforts and did supply to the close of the war. When a settlement was reached however the government refused to pay but twenty-so, they will be dismissed. five cents per ration confronting the claim for more, with the written contract, and settling upon that basis. The government claimed. that the verbal agreement made by the secretary of war was not good in law, and although not denied, was not considered as binding. The result was bankruptcy to the patriot and his speedy death. His widow exhausted her own private fortune, which was small, in feeing high-toned lawyers who held that contingent fees were not christian-like or proper, and who like all others of that highly moral class, took the fee No report was made by the court this week, owing to the Judges having gone to their respective homes to exercise the privilege of vot ing. The judges have been busily engaged, having this far, this month, disposed of some eleven cases on the general docket, and twentynine cases on the motion docket. Before the court took its summer vacation, all cases up to No. 120, on the General docket, had been disposed of. Cases up to and including No. 137, are in the hands of the court for disposition. In many cases, defects are apparent owing to the absence of printing, filing of briefs, &c., in which event, when reached they will be dismissed. Although cases on the docket from 176 to 225 were called last week, they will not be reached for consideration for some weeks yet. However, attorneys should see to it, that their cases are fully prepared for the court, for if not Chief Justice Boynton is expected on the bench at its open session next week. OBITUARY. Hon. Thomas W. Ewart died at Granville, Licking County, Friday last, October 7th, in his 66th year. Judge Ewart was formerly a member of the Washington County bar at Marietta. Last winter he came to Columbus, and established his office in the Converse building, where he remained but a short time, owing to growing feebleness, which compelled him to return to Granville, where he remained until his death. THE Pennsylvania Supreme Court has recently oecided the somewhat famous case of Stack v. O'Hara, from the Lycoming judicial district. This was the well known action brought by Tather Stack, of the Catholic Church of WilHamsport, against Bishop O'Hara, for damages for being wrongfully and unlawfully removed by the Bishop and interdicted from preaching at Williamsport. The court below decided adversely to the plaintiff. The plaintiff held that the letter of the Bishop removing him was an accusation, and that it was the duty of the court to insist that the vague and implied charges in the letter should be made definite. Justice Trunkey, who delivered the decision, did not favor this idea, holding that inasmuch as the Bishop has the right to make removals under the Church law, he need not make specific charges. He may dismiss a priest without assigning any cause. He further said that the plaintiff was not deprived of his priestly functions, as he was only prohibited from exercising them in Williamsport, and therefore was not entitled to damages on that behalf. Judgment of the court below was affirmed, Sharswood and Gordon dissenting. VOLUME 36, Ohio State Reports will be ready for delivery to the profession about October 20. The OHIO LAW JOURNAL will deliver this volume to any part of the State free on receipt of $1.75. THE U. S. Supreme Court convened at Washington, Monday last, with Chief Justice Waite, and Justices Miller, Bradley, Harlan, Woods and Matthews, on the bench. A ROMANCE IN REAL LIFE. AN OHIO TICHBORNE CASE. MARYSVILLE, OHIO, OCT. 1881. The old-fashioned clock standing in the hall of the old American House in this unromantic village was striking eleven on Saturday night the 27th of November, 1832, and the landlord strode to the wide hall door, flung it open, and peered out as was his custom before putting up the bars and the shutters for the night. But the good host started back in amazement, for before him on the threshold stood a stranger tall and powerful, and quaintly dressed. From beneath his buckeye hat long black hair fell in waves and curls over his broad shoulders, almost concealing even in front the wide collar of spotless white, which was turned back over the neck bands of his coat and vest. White duck breeches and top boots with soles fully an inch in thickness completed the attire of this unex pected guest who stepped within-shaking the snow from his hat and hair by a toss of the head like a huge dog-and in a word demanded lodging. The landlord accustomed to the brusque manners of that day took a candle and showed the new-comer to a room on the second floor. His guest remained longer than guests usually do: He occupied that same room for nearly forty-two years! He gave his name as Robson Lovett Broome, but of his history, his family or his business, he gave nothing. He lived the life of a hermit although in a public house. He never allowed a living soul to enter his room after he took possession on that night-in 1832. He was his own chamber maid, bell boy, boot black and porter. His locks were proof against all prying parties, and during his frequent journeys to-no one knew where-which often consumed weeks or months, his room remained untouched. He bought lands, loaned money, and made his irregall his employment, nearly. He would walk up ular trips to the unknown country, and this was and down the reception room of the hotel for hours, days, and weeks, only stopping to eat and sleep. He volunteered no information concerning himself, and answered no questions. In 1873 he died, while on the eve of a marriage with a widow in the neighborhood. He left no will and no writing to guide to any discovery of his relations or family. The proper authorities took charge of his effects. An administrator was appointed, and his notes, mortgages and lands were found to aggregate between $50,000 and $60,000. All efforts, however, to find who or what he had been, failed disastrously. The Broomes of New York City attempted to establish a line of descent from one branch of that family to one John Broome who had resided in Ohio, near Marietta, and who, they claimed, had two children, a son and daughter, both of whom, however, had disappeared and were supposed to be dead; and that this son of John Broome was R. S. Broome, the intestate eccentric of Marysville, Ohio. Pending these attempted genealogical patchings, Col, Robinson, of the law firm of Robinson & Piper, became the attorney for the administrator, and, in looking over some notes and mortgages found pencil memoranda as follows: "Levi Brewster, b. 1793, N. L. Ct." "Lemuel Bruce, Posey Co. Ind., 1818." "Lot Bene, Butler Co., O., 1822." "Lemuel Brown, N. Y., 1830." And on a separate slip the following: "1820, Woodsfield, O., Lydia Watterman." "1828, Rochester, Nancy Gray." It must be confessed that this was not much of a clue. Yet by following it up persistently and shrewdly Col. Robinson discovered the facts which follow and which constitute the framework of a romance in real life, as remarkable as any on record. Levi Brewster was born in New London, Connecticut, in 1793, went from home in his early young manhood and appeared at Woodsfield, Ohio, about 1819, where he married Lydia Watterman in 1820. In 1827 he abandoned his fam |
