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he was accustomed to carry about his person, and thus taking the oath. The judge at the same time remarked that strictly speaking a Parsee should be sworn holding the tail of a cow. Tyler in his History of Oaths says that Sir James Macintosh told him that at Bombay he once had a cow brought into court for this purpose. This would seem a good way to swear a milkman, but a Parsee ought to be sworn upon a grammar. The twelve judges, in Morgan's case, 1 Leach. 24, held that a Mahometan might swear upon the Koran. In Ormichund. v. Barker, 1 Atk. 21, it was held that a Gentoo might be sworn by touching the foot of one of his priests. In Eutrehman's case, Cur. & M. 248, it was settled that a broken china saucer is essential to a Chinaman's oath. The Israelite swears upon the Pentateuch or Old Testament, with covered head. The Bedouin grasps the middle tent pole and swear bythe life of the tent and its owner. One form ofsweyaring among the Scythians was by the roal hearth. In an interesting paper by Mr.s James L. Angle, of Rochester, N. Y., on "the Supernatural in the Administration of Justice," he says: "In his treaty with the king of Sodom, Abraham swore by the uplifted hand (Gen. xiv, 22); in his treaty with Abimelech he swore by Elohim (Gen. xxi, 23); and the Hebrews were commanded to swear by the name of Elohim (Deut. vi, 13; x, 20). The angel in the Apocalypse is represented as combining the two-the uplifted hand and the name of God (Rev. x, 5-6); when standing on sea and land he swears that time shall be no longer. Jehovah is represented as swearing by Himself (Gen. xxii, 16; xxvi, 3; Ex. vi, 8; Heb. vi, 13-17); as swearing by His own life, (Num. xix, 28), and by the uplifted hand (Deut. xxxii, 40). * * * Jacob swore by the fear of his father, Isaac (Gen. xxix, 53), and Joseph by the life of Pharaoh (Gen. xi, 11-15)." Erskine once fell in with a witness who insisted on being sworn with the uplifted hand, because the angel in the Apocalypse was thus sworn. "But," said Erskine, "you are no angel; and then you don't know how he would have been sworn if he had stood on dry land, as you do." We heartily sympathize with Mr. Angle in his observations about "kissing the book." He says; "The custom of kissing the leather covering of a Bible prevails with us; usually the book has been in use for that purpose for many years; it has passed through thousands of dirty, perhaps filthy hands, and been pressed to 10,000 lips, many of them redolent with tobacco juice or reeking with other unsavory liquids, some of them bloated, sore and corrupted, by disease and debauchery. I have seen Bibles in use for this purpose whose stained and begrimmed covers looked like fit mediums for contagion, and emblematic of any thing but purity and truth; and the osculatory part of our form, while it might make the gorge rise, would certainly have nothing sacred or solemn in its influence. We read that when 'Jacob kissed Rachel he lifted up his voice and wept" (Gen. xxix, 1); why he wept I recollect hearing discussed in my younger years, and the young

people of my time could never satisfactorily account for such an effect from such a cause, but I can understand why the kissing of some of our court-room Bibles should produce a feeling distorting the features as much as weeping." In People v. Cook, 4 Seld. 84, an oath on Watt's Psalms and Hymns, the affiants supposing it to be the Bible or New Testament, was held binding.-Albany Law Journal.

THE GENESIS OF PERJURY.

We shall probably never see, and perhaps we have no right to expect, the advent of time when Parliament will treat things just in exact proportion to their real place and importance. What is personal will claim and get in most popular assemblies, our own not accepted, precedence over what is more material, but not so salient and conspicuous; the vivid, obtrusive interest of the moment will push aside things of more permanent consequence. We have not far to look for examples of this tendency, which is so natural as scarcely to merit censure. If Parliament were guided solely by reference to the intrinsic importance of things, it would have found, sooner or later, a little time for considering a matter, the significance of which cannot be easily overrated. At Manchester, the other day, Lord Coleridge took occasion to tell the grand jury that the crime of perjury was greatly on the increase. He had not in view merely local circumstances; for another judge, Lord Justice Baggally, speaking to the grand jury of Carnarvonshire, made much the same remark, expressing his regret that this offence was now so prevalent. If these judgments be correct-and there is no reason to doubt that they contain an element of truth-they unvail a defect in the administration of justice to which all others are secondary. What is the good of Judicature Acts and amending measures, if the very fountains of law are being thus poisoned? It will be all in vain to seek to improve legal machinery if this internal deterioration, to which judges of experience testify, be really going on. Lawyers of the old school will probably say that they are not surprised at this declension. It is, they will argue, the natural, though mournful, outcome of the changes which enable parties on the record and persons interested generally to give evidence. It was predicted, when such a change was suggested, that perjury would become rife; and it will be said that we are now only reaping as we sowed in 1843, 1851, and 1853. This explanation is more plausible than satisfactory. It is not conspicuously witnesses who are "interested," in the legal sense of the term, and who once might have been objected to as incompetent, that are reckless in regard to what they say in the box. Oaths are not more respected in criminal cases, where a remnant of the old rule survives, than in civil cases, from which it is banished. not at all certain that if the stupid exclusive system which shuts the mouths of almost everyone who knew anything about the matter in dis

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pute were in full force, fewer perjuries would be committed than is now the case. At any rate, it would be paying dearly for a slight diminution, to forego what are usually the most valuable indications of truth. We shall, perhaps, be told also that the vice is more or less due to the careless, unimpressive, and barely decent way in which an oath is administered in the English courts of justice. Mumbled or gabbled over by some subordinate official, no one heeding what is going on, the oath loses its force over those whom it is intended to affect, and who, it is supposed, would speak under a less keen sense of responsibility if their evidence were prefaced by a bare affirmation. We cite this criticism for what it is worth. There is certainly a contrast, not wholly to our honor, between an oath as administered in foreign courts by the presiding judge, and the same ceremony as slurred over in an offhand way in an English court. If evidence is to be taken under oath-if we are to abide by the maxim, In judicio non creditur nisi juratis—the accessories should not be such as to suggest to a witness the thought, "This is a mere form; everybody in court, from the judge to the usher, treats it as such." There is, however, no reason to suppose that things would be very different if taking an oath were made to look a little more important than shaking hands, bowing, or any secular act of politeness. It would be inventing a far-fetched, unsubstantial explanation, to suppose that the unseemly manner in which witnesses are sworn is at the bottom of much of the evil of which Lord Coleridge and Lord Justice Baggally complain. Make the ceremony as impressive as you can, it will fail to affect very deeply many minds. False witnesses who never studied casuistry under Sanches or Escobar have always had, their little devices by which they palliated to their own satisfaction the crime they committed. They kissed their thumbs instead of the Book. They made mental reservations while they repeated the formula prescribed by law. There is no reason to think that this sort of sophistry is at all more common than it was, or that any fresh appeals to men's consciences would put an end to it. What may be new, and what is perhaps responsible for much loose testimony, is the knowledge more or less precisely possessed by most people, that it is extremely difficult to convict a person who has committed perjury; that convictions for this offence are rare, and that the punishment is at worst not very severe. A man may go into the witness-box and utter there a series of falsehoods in his own interest or that of some other person. It may be plain to everybody who hears him that he lies. Yet in ninety-nine cases out of a hundred he stands down in perfect safety. His sole punishment, in all probability, will be a rebuke from the bench. As soon as the question of prosecuting him arises, difficulties present themselves. It must be shown that he has deposed to some statement which is material to the issue; and that qualification-said to have been due to a blunder as to the meaning of a passage in

"Bracton "-is an excellent safe-guard of rogues. It is not in practice so easy as it might, at first blush, seem, to prove that an averment is at once false and material. Probably, too, no accurate note of what the witness said exists. The enormous expenses incidental to trials for perjury also operate as an encouragement of the crime. Nothing can be taken for granted in a criminal proceeding. The circumstance that a jury in a civil case by implication gave it as their opinion that a witness swore falsely, does not conclude the matter at the Old Bailey or at the Assizes. Everything must be proved there; nothing can be taken for granted; and this rigorous principle necessitates, especially in proceedings for perjury, heavy outlay. The Tichborne trial, which cost the nation many thousands of pounds, has been an evil precedent, and has discouraged the instituting of proeedings for perjury in circumstances in which the crime has been obviously committed. What happens almost every week is not at all edifying. A witness steps into the box and makes statements about transactions said to have taken place in South America or Australia. The story is proved to be false; and the jury unmistakably show that is their view of it. No one, however, cares to go to the expense of making protracted inquiries into these distant countries, and of procuring and bringing over the necessary witnesses, and so the offender goes unpunished, to the scandal of public morals and the encouragement of the evil-disposed. evil-disposed. When a perjurer is brought to justice, his fate is not calculated to operate as a striking warning. Though his offence may be as heinous in the eye of a moralist as murder, though it may be committed with a view to destroying the character of the innocent, or robbing a man of his property, the judge finds his hands tied, and is forced to pronounce a totally inadequate sentence. It is a significant fact, that of 13,130 prisoners committed for trial for indictable offences in England and Wales, in 1879, only ninety-one were committed for perjury or subornation perjury; that only fifty of the ninety-one were convicted; and that only three of the fifty were sentenced to penal servitude. We need not as ume that perjury is more prevalent than it ever before was. It is well known. that, in spite of the national character for downright veracity, the commonness of this crime in English courts was always a subject of lamentation among our moralists. The pillory was specially reserved for it until recent times. The bishops actually met in 1754, to take counsel how to cope with this crying sin. The professional perjurer, with the straw in his shoe, is as prominent a figure as any in our legal history. In view of all this, we are not disposed to strain the remarks of Lord Coleridge and Lord Justice Baggally, and say that things are worse than they were at any previous time. There is nothing to show that the alterations, first largely introduced into the law of evidence in 1851, and extended, with misgivings in many minds, to the divorce court in 1869, have led to an increase

in perjury. After thirty years trial, of a liberal system ef evidence, no clear reason for retracing our footsteps can be adduced. But no one can be acquainted with the inside of our courts without being aware of the enormous amount of petty perjury there, and which passes unpunished. Men perjure themselves because they wish to make good their claims or escape liability. They do so because they are friendly to one of the parties, or because they have once incautiously out of court told some one a certain story and resolved to stick to it when subpoenead by an enterprising solicitor, or because they are vain and wish to figure in public proceedings. These motives will always operate, and cannot be effectually resisted. But men commit perjury also because they assume, with too much reason, that they will not be punished, and this is a temptation which might be diminished by means too obvious to require explanation.-London Times.

PROFESSIONAL ADVERTISING.

It is well for the old attorney, after years of struggle have given him fame, and a lucrative practice, to descant upon the professional degeneracy of the times if a young attorney resorts to printer's ink to inform the world that he is, where he is, and what he is; but the young attorney who is deterred by such antiquated professional ethics and ingenious sophistry from doing so straight forward and sensible a thing reflects discredit either upon his shrewdness in detecting sophistry or his moral courage in facing an old and absurd prejudice.

Is a young man to sit down Micawber-like in in the seclusion of his office and whisper to himself amidst its silence, "Here I am, let the world come and employ me?" But, my dear young friend, did it never occur to you that it is a species of presumptious egotism for you to suppose that the world even knows, much less cares anything about you; and that it is a species of moral cowardice in you to refrain from modestly announcing yourself to the world as an attorney at law? You thus simply do in one form what your ethical stickler does in another. He has reached a point where he can attain the same end by other methods; by his appearance before the public and in the public print in connection with celebrated cases, and in various other ways not yet open to you.

The profession of law in the times when, what we have termed antiquated ethics obtained, was strictly an honorable one and its followers being gentlemen of wealth, pursued it not as now for the purpose of earning a living; nay, it was even no less dishonorable to take pay for services than it was to seek an employment. Does the modern advocate of the old honored custom attest his sincerity by scorning to accept compensation for his own services? If not, is.it noble in him, having discarded half the rule himself. to disclaim the young attorney's right to discard the other half?

SUPREME COURT RECORD.

[New cases filed since last report, up to May 17, 1882.]

1157. George W. Moore v. The Greenville Building and Savings Association. Error to the District Court of Darke County.

1158. Joseph Fisher et al. v. Louisa Schlosser. Error to the District Court of Lawrence County. W. H. Enochs and W. S. McCune for plaintiffs; O. F. Moore and E. F. Williams for defendant.

1159. John Campbell v. Phoebe B. Johnson. Error to the District Court of Lawrence County. O. F. Moore aud Neal & Cherrington for plaintiff; John Hamilton for defendant.

1160. Continental Life Ins. Co. v. Andrew Hamilton. Error to the District Court of Delaware County. Sayler & Sayler and Jones & Lytle for plaintiff; E. I Poppleton for defendant.

1161. Mary J. Selman et al. v. J. H. Selman. Error to th District Court of Brown County. White, McKnight & White for plaintiffs; C. B. Fee for defendant. 1162. Wilber R. Smith et al. v. Hezekiah Bainum. Error to the District Court of Brown County. White, McKnight & White for plaintiffs; W. W. Young for defendant.

1163. Wilber R. Smith et al. v. Taylor Manchester. Error to the District Court of Brown County. White, McKnight & White for plaintiffs; Thomas & Thomas for defendant.

1164. Theophilus P. Brown v. The Merchants' National Bank of Toledo et al. Error to the District Court of Lucas County. Lee, Brown & Lee for plaintiff; Dodge & Raymond for defendants.

1165. William Bailey v. Jacob Stoneman. Error to the District Court of Cuyahoga County. R. E. Knight and A. T. Brewer, for plaintiff; Pennewell & Lamson for defendants.

1166. John Peters v. Isaac Peters. Error to the District Court of Lawrence County. Ralph Leete, John Hamilton and O. F. Moore for plaintiff; W. A. Hutchins and W. H. Enochs for defendant.

1167. Lewis Coster v. W. R. Hardman et al. Error to the District Court of Greene County. T. E. Scroggy for plaintift; Little & Shearer for defendants.

1168. Jane E. Sanders v. Annie R. Smith. Error to the District Court of Jefferson County. W. P. Hays and Walden & Elliott for plaintiff.

1169. Charles E. Beardsley v. Jarvis Wing, Guardian, &c. Error to the District Court of Putnam County. C. J. Swan, W. C. G. Krauss and E. N. Lamison for piai. ‘iff. 1170. Knickerbocker Casualty Insurance Co. v. N. E. Jordan, Administrator. Error to the District Court of Hamilton County. C. D. Kobertson for plaintiff; Jordan, Jordan & Williams for defendant.

1171. Irving W. Pope v. John Bleasdale. Error to the District Court of Cuyahoga County. Ranney & Ranney and J. M. Estep for plaintiff; A. J. Marvin for defendant.

SUPREME COURT ASSIGNMENT.

FOR ORAL ARGUMENT.

May 25th-No. 111. Bundy v. Ophir Iron Co. No. 112.

Simpson et al. v. Greenfield Building and Savings Associ

ation.

May 26th-No. 114. Coffin v. The Greenlees and Ransom Co.

May 31st-No. 1117. Charles Stoddard v. The State of Ohio. No. 1118. Jacob Ridenour v The State of Ohio. June 14th.-No. 1138. Nelson B. Stone et al. v. Henry C. Viele, Treasurer.

THE Supreme Court adjourned Saturday last, until Monday next.

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1. Under the act of March 31st, 1874, entitled "an act to secure pay to persons performing labor and furnishing materials in constructing railroads," (71 0. L. 51), a substantial compliance with the conditions of the statute providing for the service of written notice upon the owner of the road is essential to create any obligation on the part of such owner toward the person performing labor or furnishing materials under a contractor or sub-contractor, or to give to such person any right of action against such owner.

2. Where from the nature of the action defendant has notice that the plaintiff intends to charge him with the possession of a written instrument, formal notice to produce the same at the trial is not essential as a foundation for the introduction of parol testimony touching its contents.

respects complying with the requirements of the statute in such case made and provided: thereby making said claim a lien upon said Railway, and said indebtedness payable from defendant to plaintiff. That said Railway company has not paid such claim, or any part thereof to said plaintiff; wherefore plaintiff prays judgment against said Railway company for said amount of fifteen dollars and forty-three cents, and interest thereon, from said 30th day of January, 1876.

"By Wм. E. GILMORE, his Att'y."

On the day set for the trial of the cause, the plaintiff in error, by his attorney, filed a motion. to dismiss the action for reasons therein assigned, among which is the following, viz:

"Because there is no cause of action against the defendant alleged in the bill of particulars." The motion was overruled by the justice, to which the plaintiff in error excepted.

At a subsequent day the cause was tried to a jury, and after the evidence for the defendant in error, all of which is embodied in the bill of exceptions, was closed, the plaintiff in error moved. the justice "to withdraw said cause from the jury, and to dismiss said action, because there was no evidence offered on behalf of the plaintiff to make out a cause of action against the defendant, and because the testimony of the plaintiff showed that more than thirty days had elapsed between the alleged service of notice upon the company and the bringing of the action." This motion was also overruled and exception noted.

Plaintiff in error also asked the justice to charge the jury that they must find for defendant in case it should appear that the suit was not commenced within thirty days from the time the notice of the claim was served upon the company. This charge, the justice refused to give.

At the trial, after proof of service of the notice upon the company, parol evidence of its this statute must be brought, applies to controversies contents was given against defendant's objection,

3. The limitation of time within which suits under

arising between the contractor or sub-contractor and the person furnishing materials or work, and not to rights of action on the part of the latter against the owner of the road.

Error to the District Court of Ross County.

The defendant in error commenced an action against the plaintiff in error, before a justice of the peace, on the 24th day of July, 1876. In his bill of particulars he states his cause of action in the following language:

"The said plaintiff, Dennis Cronin, says, that the firm of Spotts, Frank & Co., contractors for building a part of the Scioto Valley Railway, was indebted to him, the said Dennis Cronin, in the sum of fifteen dollars and forty-three cents, for work and labor bestowed by said. plaintiff in grade-making upon the line of said Railway. That said amount is yet due to said plaintiff, and is wholly unpaid. That on the 30th day of January, 1876, plaintiff filed with defendant, the Scioto Valley Railway Com pany, a notice of said claim, in writing, in al

without showing that the written notice had been lost or destroyed, or that any demand had been made upon defendant for its production.

The verdict and judgment were for plaintiff, and upon error the judgment was affirmed in the court of common pleas, and the action of the latter court was in turn, affirmed by the district

court.

LONGWORTH, J.

The cause of action upon which suit was originally brought, was created by the act of March 31st, 1874, (71 O. L. 51), entitled "an act to secure pay to persons performing labor and furnishing materials in constructing railroads," and the solution of the questions raised in this court, depends upon the proper construction of its terms. These questions we shall treat in the following order:

1st. Was the bill of particulars sufficient? 2nd. Was parol evidence of the contents of the notice properly received?

3rd. Was the written notice sufficient under the statute?

4th. Did the lapse of more than thirty days bar the right of action?

I. The rules which govern pleading in courts of record at common law and under the code of civil procedure have never been strictly applied in proceedings before justices of the peace. From the earliest days a very liberal practice, has obtained in this State in reviewing proceedings had before these officers, where the question of their jurisdiction is not involved. A different course would be unreasonable and impracticable, and, to use the language of this court in Harding v. Trustees of New Haven Tp., 3 O. R. 232, "would not only destroy their usefulness, but render them in a great degree deceptive and mischievous."

In the case before us the bill clearly informed the defendant of the nature of the cause of action sued on and the amount for which a recovery was sought.

We are not disposed to quarrel with it because it is not as complete in its statement of facts as might be required of it, had it been filed as a petition in a court of record.

II. It is undoubtedly true that secondary evidence to prove a fact cannot be resorted to until all sources of original evidence have been exhausted, and in general where a written instrument is in the hands of an adverse party, its contents cannot be proved by parol until its production has been called for and refused. There are, however, as laid down by Mr. Greenleaf, three well established exceptions to this general rule, and in which notice to produce is not necessary. First, where the instrument to be produced and that to be proved are duplicate originals; secondly, when the instrument to be proved is itself a notice, such as a notice to quit, or notice of the dishonor of a bill of exchange; and thirdly, where from the nature of the action, the defendant has notice that the plaintiff intends to charge him with possession of the instrument. Greenl. on Ev. $561. See also 2 Phillips on Ev. 539, and cases therein refered to.

1

In the case before us the plaintiff's right of action is created by the statute and depends upon the fact of written notice served. Without proof of this no recovery could possibly be had. The bringing suit, therefore, apprised defendant that it would be necessary for plaintiff to introduce the written paper at the trial, which paper at the time was in defendant's possession.

We think the case clearly falls within the last exception to the rule quoted above, which seems to be founded in sound reason and common sense, in view of the fact that the law regards substance rather than mere form. The defendant being thus informed that plaintiff required this paper at the trial, no reason can exist for insisting that it should be a second time formally notified of this fact.

III. The statute provides that the notice shall be served upon the railroad company

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"within thirty days from the date that said person ceased furnishing said materials or laboring on said road as aforesaid, stating in said notice the kind and amount of materials furnished and labor performed, the time when, the contractor or sub-contractor for whom, and the section or place where on the line of the road the labor was performed or materials were furnished by him as aforesaid, and the amount due him therefor."

A substantial compliance with these requirements is unquestionably necessary to create any liability on the part of the company, their object being to apprise the company of all facts necessary to a thorough understanding of its rights and obligations in respect to its contractor and the person furnishing the materials or labor under him, with the latter of whom it had, up to the time of notice, made no contract and assumed no obligation.

The notice served upon the company was as follows:

"TO THE SCIOTO VALLEY RAILWAY COMPANY: You are hereby notified that there is due to me, and unpaid, from Spotts, Frank & Co., contractors, the sum of fifteen dollars and forty-three cents, for work and labor bestowed by me in grade-making upon the line of said railway, between the Scioto river bridge and Main street in the city of Chillicothe. I ceased to bestow said labor on the. day of 1876, and less than thirty days from the time of filing this notice."

DENNIS CRONIN.

In this we find a substantial compliance with the conditions of the statute. The company is advised of the nature of the plaintiff's claim, the character and value of the work done, the contractors under whom it was performed, the place where done and that it was finished within thirty days next preceding the notice. More than this, it was not the intent of the legislature to require.

These notices are drawn up and served in most cases by unlettered men without the aid of counsel. To require a literal compliance with the terms of the statute, would not only be objectless, but would in many cases defeat the very end and aim of the law.

IV. In answer to the claim that suit was not brought within thirty days, we have only to say that the limitation contained in the proviso relates only to disputes between the contractor and the claimant, and not. to controversies between the claimant and the railroad company.

It is further urged that the plaintiff failed to make out a case by omitting to prove that the aggregate indebtedness of the contractor for the labor let by the company did not exceed 90 per cent. of the contract price. This fact, if it existed, would have constituted a defense pro tanto, and might have been shown by the company. It was not a matter necessary to be proved to make out a right of action.

It is also insisted that there was no evidence tending to show that Spotts, Frank & Co. were

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