therefore, giving the statute a reasonable construction, may be disregarded."""

Nature of Action.-The remedy for violation of the act is an action by the Government for the penalty. Such action is civil in its nature and subject to all the incidents of a civil suit.91 Hence the government need only prove its case by a preponderance of evidence,92 and in case of an adverse decision may appeal.93 Violation of the Act is not a crime.94

Amount of Penalty.-The minimum penalty is one hundred dollars and the maximum five hundred. Within these limits it is the court's province to fix the amount after verdict in accordance with the heinousness of the offense.95 In fixing the amount the court may properly consider the fact that the defendant had or had not instructed its employees to strictly obey the law, or in an action against a connecting carrier for receiving a shipment confined overtime, that the first carrier had already been fined.97

96

Washington, D. C.

JOHN PURYEAR.

(90) U. S. v. N. Y. C. & H. R. R. Co. (N. Y.), 191 Fed. 938.

(91) U. S. v. Atlantic C. L. R. Co. (Va.), 173 Fed. 764.

(92) U. S. v. Sou. Pac. Co. (Cal), 157 Fed. 459; U. S. v. Sou. Pac. Co. (Cal.), 162 Fed. 412; Atchison, T. & S. F. Ry. Co. v. U. S. (Kan.), 178 Fed. 12; Missouri, K. & T. Ry. Co. v. U. S. (Kan.), 178 Fed. 15. Contra: U. S. v. Louisville & N. R. Co. (Ky.), 157 Fed. 979 (criminal in nature and Government must prove its case beyond reasonable doubt).

(93) Baltimore & Ohio S. W. R. Co. v. U. S. 220 U. S. 94. U. S. v. Baltimore & Ohio S. W. R. Co. (O.), 159 Fed. 33.

(94) Montana C. R. Co. v. U. S. (Mont.), 164 Fed. 400.

(95) U. S. v. Sou, Pac. Co. (Cal.), 162 Fed. 412; Missouri, K. & T. Ry. Co. (Kan.), 178 Fed. 15; Atchison, T. & S. F. Ry. Co. v. U, S. (Kan.), 178 Fed. 12; Missouri, K. & T. Ry. Co. v. U. S. (Kan.), 178 Fed. 15; U. S. v. Boston & A. R. Co. (Mass.), 15 Fed. 209.

(96) U. S. v. Delaware, L. & W. R. Co. (N. Y.), 220 Fed. 944.

(97) U. S. v. Nor. Pac. Term. Co. (Ore.), 186 Fed. 947.

EVIDENCE-ATTEMPT TO SUPPRESS.

STATE v. LITTLE.

Supreme Court of North Carolina. Nov. 21, 1917.

94 S. E. 97.

Evidence of an assault by defendant upon the prosecuting witness during the term of court was competent as showing an effort to suppress evidence or to intimidate a witness.

Allen, J. A juror was called and stated upon his examination that he would not convict any one on the testimony of W. E. Reynolds, the witness upon whom the state had to rely for a conviction, and the court, in the exercise of its discretion, excused him from service on the jury, and the defendant excepted. This ruling is clearly correct. State v. Vann, 162 N. C. 538, 77 S. E. 295. But if erroneous it was not prejudicial, as it does not appear that any juror was challenged, or that the jury which served was not one entirely satisfactory to the defendant. State v. Cunningham, 72 N. C. 469.

The state was permitted to prove, over the objection of the defendant, that the defendant made a violent assault on the prosecuting wit ness, Reynolds, during the term of court, and this was referred to in the charge to which defendant excepted. This evidence was com petent on the question of the guilt of the defendant as a circumstance tending to show an effort to suppress evidence or to intimidate a witness against him.

The evidence of Baldwin as to a conversation with the witness Reynolds was properly admitted as corroborative, and to this his honor confined it.

The fifth, sixth and seventh exceptions are taken to the solicitor's manner of questioning the defendant on cross-examination, the objectionable remarks being as follows:

"Now, tell me the truth about this, if you know how." "Now, Mr. Little, I want you to answer this question; you have been dodging me." "Come on, and tell me what trouble you had."

The remarks preceded the various questions the solicitor asked the witness, and while they may not have been altogether polite, and are in the nature of comments which ought to have been reserved for argument before the jury, they do not exceed the bounds of legitimate discussion, and cannot be held reversible error.

After verdict the defendant moved for a new trial because a member of the petit jury was a member of the grand jury, which passed on

the bill of indictment against him, which was denied. This motion was addressed to the discretion of the judge and his decision thereon is not reviewable.

"It has always been held by us that a motion to set aside the verdict because of a defect as to one of the jurors comes too late after verdict, and addresses itself only to the discretion of the court. Walker, J., in State v. Lipscomb, 134 N. C. 697 (47 S. E. 44). In that case it was shown that the juror was under 21 years of age. In State v. Maultsby, 130 N. C. 664 (41 S. E. 97), the same ruling was made where a relationship was discovered after verdict between the prosecuting witness and a juror, and the court there cited many other cases where a disqualification of a juror on diverse grounds had been found after verdict, and in all which cases the court held that the matter rested in the discretion of the trial judge, and that the refusal of the motion was not reviewable on appeal." State v. Drakeford, 162 N. C. 671, 78 S. E. 309.

The defendant also moved to set aside the verdict, because, on the day before the trial of the defendant, his honor said to five jurors. who had stood for the acquittal of one Hinson, charged with retailing, that "they hindered the machinery of justice in holding out against the verdict of guilty, but that if the position they took was taken by reason of their conscientious judgment in the matter, that he had respect for them and that they were entitled to their judgment, and further suggested to the five men who stood for acquittal, that if there were any reasons arising out of prejudice or opposition to the law, why they should not return a verdict of guilty in a retailing case, that the court would relieve them of further duty from that date, but that if it was a mere question of judgment that they could return, that the matter was left with them."

No relation is shown between the two cases, none of the evidence in the Hinson case is set out, nor are the circumstances shown which caused the remarks to be made, and we cannot see that they were not entirely justified.

In any event, the defendant knew all the facts before the trial began, and he could not wait until after verdict, and then bring the matter to the attention of the court for the first time, except by an appeal to its discretion, which is not reviewable.

We have considered all of the exceptions and find no error.

No error.

NOTE-Suppression of Evidence in Criminal Case Creating Presumption Against Defendant. -In a very noted case in American jurisprudence, that of Com. v. Webster, 5 Cush. (Mass.) 295, one of our greatest judges, Shaw, C. J., said in his charge to the jury that: "All attempts on the part of the accused to suppress evidence, to

suggest false and deceptive explanations and to cast suspicion, without just cause, on other persons, all or any of which tend to prove consciousness of guilt, and, when proved to exert an influence against the accused "are admissible in evidence." The court, however, added the caution that: "This consideration is not to be pressed too urgently; because an innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs."

As a North Dakota case (State v. Rozum, 8 N. D. 548, 80 N. W. 477) states the matter, in a case where a proposed witness was threatened with violence, and it was evident that he was being intimidated, this "raises a presumption that such evidence is detrimental to the party seeking to destroy or withhold it." How strong the presumption it is not said. It is not meant to say, that there arises any presumption of the truth of the evidence.

In Snell v. Bray, 56 Wis. 156, 14 N. W. 14, the court adopted as a statutory rule, in a case where a letter warning another against testifying in an expected law suit, that laid down by Cock314. There the Chief Justice said: "The conburn, C. J., in Moriarity v. Ry. Co., 5 L. R. Q. B. duct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of the defense, if he is defendant, is honest and just, just as it is evidence against a prisoner that he has said one thing at one time and another at another, as showing that recourse to falsehood leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. So if you can show that a plaintiff has been suborning false testimony and has endeavored to have recourse to perjury, it is strong evidence that he knew perfectly well that his cause was an unrighteous one. I do not say it is conclusive. I fully agree that it should be put to the jury with the intimation that it does not always follow, because a man, not sure he shall be able to succeed by righteous means, has recourse to means of a different character, that that which he desires, namely the gaining of the victory, is not his due, or that he has not good ground for believing that justice entitles him to it. It does not necessarily follow that he has not a good cause of action any more than has a prisoner making a false statement to aid his appearance, if innocence is necessarily a proof of guilt, but it is always evidence which ought to be submitted to the consideration of the tribunal which has to judge of the facts."

In Levison v. State, 54 Ala. 519, defendant was shown by an accomplice to have visited her on the night of his arrest, but when he knew he would be arrested. While she was lying in bed defendant whispered to her and was heard to tell her to "lie still and keep your damned mouth shut."

The court said it was natural that: "The subject of the conversation would be the anticipated arrest, and entreaty, persuasion, threats or commands would be employed to keep her from purposely or by inadvertence disclosing their mutual guilt," if he was guilty. "Considering the

circumstances, we cannot say this evidence had not a relevancy to the main and material fact."

In People v. Chin Hane, 108 Cal. 597, 41 Pac. 697, one on trial for murder, it was shown over objection of defendants, that they each told a witness called to identify them, that they would kill him, if he testified. The court said: "Threats made by a defendant against a witness whom he expects to testify against him, with the evident purpose of intimidating the witness, are proper evidence."

In Kessier v. State, 154 Ind. 242, 56 N. E. 232, the state was permitted to show, that after defendant had made an ineffectual effort to induce a witness to enter his employment, said to him: "If you give us any trouble, and send me over the road, or so I will go there, I have brothers that will watch you all your life." The court cited numerous cases to the effect that attempts to bribe, or intimidate witnesses may properly be considered in determining the guilt or innocence of a person charged with crime; but they are not conclusive. Such conduct is regarded as in the nature of an admission that the party has a bad case, which cannot be supported by honest proof."

After all, such evidence is but a fact of more or less weight according to the circumstances of the acts complained of being committed. It would seem to require some independent evidence, which it is intended to support.

ITEMS OF PROFESSIONAL

INTEREST.

C.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

QUESTION No. 139.

Employment; Relation to Other; Attorneys; Relation to Client; Civic Duties-Duties of lawyer, who has declined employment to appear at public hearing ostensibly as a citizen and taxpayer but in fact as hired advocate. Shall he make public disclosure of attempt to employ him, and of his other relevant knowledge?— A, an attorney, is approached by the attorneys for a public service corporation, with whom he has no previous acquaintance, and is asked to appear at a public hearing as a citizen and taxpayer to object to action to which the corporation is opposed; the attorneys offer to pay him a fee for doing so. A declines the employment. The attorneys, in the course of the conversation, inform A that his name has been suggested by X, an attorney and a man of prominence and influence, as one who may be available

for the purpose; after A declines, they mention the names of some others who had been suggested for this employment and ask A's views as to their availability; they particularly inquire about Y, another attorney of prominence in local politics. A takes no part in the matter referred to. He subsequently learns that at the hearing Y appeared as a citizen and taxpayer in opposition to the action referred to. The subject matter of the hearing is involved in a subject which is about to come up for important public action. Knowledge on the part of the public of the foregoing facts and particularly of the relations of X and Y and of the corporation and its attorneys to the transaction might materially influence the attitude of the public on the question. Whether that influence would tend toward a desirable or an undesirable result is not at present clear to A, partly because persons on both sides of the controversy are likely to be affected by the disclosure.

The questions on which the Committee's opinion is asked are:

(1) Would A have been justified in accepting the employment offered?

(2) What is A's duty with respect to mak ing public disclosure of the facts stated above and more particularly:

(a)

Is he under a duty to the corporation and its attorneys not to disclose them? (b) Is he under a duty to the public to disclose them?

(c) Is he justified in entering into a public discussion on the merits of the question in which he will express his own personal views without disclosing the foregoing facts?

(d) Is he justified in using his own judg ment and in disclosing or not disclosing the foregoing facts, according, as in his own opinion, their disclosure will tend to action in the public interest or the reverse? ANSWER No. 139.

In the opinion of the Committee: (1) It would have been improper for the attorney to masquerade as suggested. (See Canon 26 of the American Bar Association.)

(2) (a) No. The employment offered was not of proper professional nature and therefore imposed no confidential relation.

(b) No; but he may use his discretion.
(c) Yes.
(d) Yes.

charges by public-service corporations, advis ing shippers, etc., thereof, and obtaining redress therefor; disapproved.-Would it be ethical and proper for a lawyer to have financial interest in, and be retained as counsel for, a company organized for the special purpose of making investigations of rates and charges of public-service corporations, advising such latter corporations' patrons of overcharges, and taking same up for adjustment, or litigating same, through its counsel aforementioned, before the appropriate commission or other regulating body?

ANSWER No. 140.

This Committee does not pass upon the question whether or not the Company is practicing law in violation of the statutes of this state. That question is peculiarly within the province of another committee of this association. But the arrangement described in the inquiry appears to the Committee to constitute a device for systematically obtaining business for a lawyer, and for stirring up litigation for profit. For that reason, in the opinion of the Committee, the lawyer's participation therein is improper.

BOOK REVIEW.

BLACK ON INCOME AND OTHER FEDERAL TAXES.

HUMOR OF THE LAW.

The big, flat-footed, hungry negro was up for theft.

"I caught him nippin' a fresh-made pumpkin pie from the MacCregor house on Marguerite street," explained Officer Carey.

"Did you?" demanded the judge.

"Dat's a rough word, yo' Honah-sayin' I done stole hit. Now as ter de truf'-dat pumpkin pie was settin' dar on de winder ledge, abandoned, Jedge. Nobody nowhar nigh hit, Jedge. Hit wuz a case ob ‘justifiable adoption,' brought on by de Christmus sperrit."-Case and Comment.

It was the day following Christmas, and Peter Anderson was before the court for being "drunk and disorderly."

"Peter," said Judge Briles, "can't you realize that Christmas time is the last time in the world for riotous conduct? It's a purely religious occasion. Christmas and drink do not go together. Why is it that a man can't enjoy the good things of the holiday period

without-"

The accused suddenly interrupted.

"Wait, Jedge-wait," he said, "dey ain't no use ob yo' wastin' all dem fancy words. Crismus didn't hab nuthin' ter do wid me an' mah drinkin.' Hit dates back ter de 'lection nof. going ter suit me."-Case and Comment.

This work is by Mr. Henry Campbell Black, of Washington, D. C., author of treatises on Income Taxes, Bankruptcy, Rescission of Contracts, Constitutional Law, etc. It contains the War Revenue Act of Oct. 3, 1917, and follows up his work on Income Taxes, both because of the enactment of that Act. The scope of this ork is wider than the prior work. It treats of internal revenue taxes, estate tax, excess profits tax, etc., etc., and reference is made not only to judicial rulings, but to rulings and regulations of departments.

It is intended that the work not only shall be valuable to the profession, but also to business men and investors.

The work is logical in arrangement and style of the writer, is bound in law buckram, of typographical excellence, and issues from Vernon Law Book Company, Kansas City, Mo., 1917.

The Old Timer looked up from his ricky and asked:

"You think that story on Bill Sims is a good one, eh?"

"Good or bad, it's true."

"Well, so is this," said the Old Timer, "and it happened down in Texas by the Rio Grande. I used to live down that way for a while, and in the village which I graced with my presence a certain old horse doctor was elected justice of the peace. What he didn't know about the law was sufficient. He knew nothing; he should have made an ideal justice of the peace. "His first case, however, was that of a man arrested for stealing a horse.

"Guilty or not guilty?' asked the justice." "Not guilty.' answered the prisoner.

""Then, what the deuce are you doing here?" demanded the justice of the peace. 'Get out!'San Francisco Chronicle.

1.

Adverse Possession

Presumption.-In trespass to try title, where it appeared that plaintiffs asserted right to the land which it was claimed had not been asserted by their ancestors for 50 years, the question of the presumption of the grant by reason of the lapse of time should be submitted to the jury.-House v. Stephens, Tex., 198 S. W. 384.

2. -Sufficiency of Possession.-Where line to which plaintiff claimed was marked by weeds and brush and he cultivated to within a few feet thereof and the adjoining owners only cultivated thereto, plaintiff held to have a sufficient possession to ripen into title.-Bugner v. Chicago Title & Trust Co., Ill., 117 N. E. 711.

3. Animals-Damages.-Where defendant was not, in writing, notified to dip his cattle, horses. and mules to eradicate fever ticks until after the filing of the complaint and information, he cannot be convicted on account of failure.McGee v. State, Tex., 198 S. W. 302.

4. Arbitration and Award-Attacking Award. -A party to an award who attacks it on the ground that the arbitrators did not furnish a transcript of evidence, and that each member of the board did not read the testimony before making the award, as required by the agreement, must show that such condition was not complied with.-Clark v. Courter, Ill., 117 N. E. 720.

$4,000.-Mytton v. New York, C. & St. L. R. Co., Mo., 198 S. W. 189.

6. Disbarment.-An attorney, converting his client's money to his own use with full knowledge on his part of the violation of his professional obligation, will be disbarred.-In re Wilkenfeld, N. Y., 167 N. Y. S. 508.

7. Discharge of Attorney.-Client has right arbitrarily to discharge his attorneys, and if he does so he is liable for services rendered by them only up to time of discharge.-In re Board of Water Supply of City of New York, N. Y., 167 N. Y. S. 531.

8. Stale Charge.-Where alleged unprofessional conduct occurred seven years ago, and the matter has been before the courts and examined by the bar associations, which failed to find sufficient ground to present charges, a proceeding for discipline will be dismissed.-In re Tuck, N. Y., 167 N. Y. S. 534.

9.

Bankruptcy-Bidder at Sale.-Unsuccessful bidder at sale of bankrupt's property held bewithout standing to oppose confirmation, cause he would have bid more if property had been sold as a whole, instead of separately.— Jacobsohn v. Larkey, U. S. C. C. A., 245 Fed. 538.

10. Estoppel.-That one creditor of a bankrupt had orally promised another creditor of the same class that its claim should be paid does not estop the former from receiving dividends equally with the latter.-Moise v. Scheibel, U. S. C. C. A., 245 Fed. 546.

11. Preference.-As respected question of preference, held that transaction whereby claimant advanced $1,000 and took mortgage to secure it and previous loans by his wife, was not changed in legal effect by the indirect manner in which it was carried out.-In re Sutherland Co., U. S. D. C., 245 Fed. 663.

12.- -Preference.-Where the bankrupt gave a mortgage less than four months before his adjudication as bankrupt, covering the entire stock of goods in trade and the mortgagee permitted him to sell the goods and treat them as his own without applying the proceeds to the debt, the mortgage was invalid as against creditors. Pierre Banking & Trust Co. v. Winkler, S. D., 165 N. W. 2.

13. Stock Subscription.-A creditor of a bankrupt corporation, who was also holder of unpaid stock, held erroneously required to pay his stock subscription in full as a condition to the allowance of his claim.-Moise v. Scheibel, U. S. C. C. A., 245 Fed. 546.

14. Banks and Banking-Coupon Holders.Bank, made depository of railroad funds to pay coupons on two bond issues, held not a trustee for the coupon holders, and receiver of railroad was entitled to the balance of the fund yet unpaid to coupon holders.-Noyes v. First Nat. Bank, N. Y., 167 N. Y. S. 288.

15. -Stockholder.-A bank does not become party to a stockholder's contract of sale of his stock, giving his right to share in doubtful assets collected by it, by its retaining and collecting them.-First Nat. Bank v. Armstrong, Ky., 198 S. W. 226.

16. Bills and Notes-Joint and Several Signers. Where several signed a note reading, "We, or either of us, promise to pay," etc., it is a