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After making further observations along this line, it is said: "We cannot conclude that plaintiff, Marston, or his children would have their consciences violated by the reading of the Bible."

When it comes to the Jew, the court cites the Declaration of Independence, speaking of our "Creator," "the Supreme Judge of the world," and "our Lord," and oaths, concluding with "So help me God." It is said, in regard to reading the New and Old Testament, that: "with the Jew it is different. He denies that the New Testament is the word of God, and he denies our Savior. He does not deny most of the moral teachings of Jesus Christ, but he denies His divinity, and His resurrection." Therefore it is said a Bible, as containing the Old Testament and the New Testament is not his Bible and it is a denial of his religious rights that his child. should be taught that it is.2

THE ABSOLUTE PRIVILEGE OF A JUDGE. The Supreme Court of Washington rules that while the immunity of an attorney or party from liability for slander, based on words spoken in course of a judicial proceeding, is but qualified and does not apply in the case of matter irrelevant to the proceeding, the privilege in the case of a judge is absolute, there being no right of action for slander against him for any statements made in his official capacity while trying a cause. The court cited an early New York case, where Chief Justice Kent said:

"We meet with the principle here stated as early as the Book of Assize, 27 Edw. III, pl. 18. The case there was that A. was indicted for that, being a judge of oyer and terminer, certain persons were indicted before him of trespass, and he had entered upon the record that they were indicted of felony, and judgment was demanded, if he should answer for falsifying the record, since he was a judge by commission; and all the judges were of opinion that the presentment was void."3

And a case in the Supreme Court of the United States where Mr. Justice Harlan said:

"The same principle was announced in England in the case of Fray v. Blackburn, 3 B. & S. 576, in which Mr. Justice Crompton said: 'It is a principle of our law that no action will lie against a judge of one of the superior courts for judicial act, though it be alleged to have been done maliciously and corruptly; therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which, indeed, existed for their benefit, and was established in order to secure the independence of the judges and prevent them from being harassed by vexatious actions.' The principle was applied in one case for the protection of a county court judge, who was sued for slander; the words complained of having been spoken by him in his capacity as judge, while sitting in court, engaged in the trial of a cause in which the plain

2 Harold v. Parish Board, 68 S.

3 Yates v. Lansing, 5 Johns. 282.

tiff was defendant. Chief Baron Kelly observed that a series of decisions, uniformly to the same effect, extending from the time of Lord Coke to the present time, established the general proposition that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice, and that the doctrine had been applied to the court of a coroner, and to a court martial, as well as to the superior courts. He said: 'It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law, independently and freely, without favor and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. How could a judge so exercise his office if he were in daily and hourly fear of an action being brought against him, and of having the question submitted to a jury whether a matter on which he had commented judicially was or was not relevant to the case before him?" "4

These reasons render plain the necessity of the rule of public policy which prevents inquiry into the question of relevancy of the words spoken to the public matter in hand. The exemption is absolute if they are spoken in the performance of an official act, No decision of any court is out of harmony with this view. A judge, for any such wrong, is answerable only to the public, through such process of law, impeachment, or otherwise, as may be provided."

CARD INDEX ADMISSIBLE IN EVIDENCE TO PROVE ACCOUNT.—In South Dakota in an action to recover a balance due for merchandise sold to the defendant by the plaintiff, a wholesaler, it is ruled by the Supreme Court that a card index used in the warehouse is admissible to show the state of the defendant's account at the time, the Court saying:

In Wis. Steel Co. v. Md. Steel Co., 203 Fed. 403, 121 C. C. A. 507, books of original entries (based on time cards turned in by workmen), in permanent form, were received in evidence, together with the time cards themselves. The court says: "Workmen's time cards and other parts of the system (apart from the books) were properly admitted, in our judgment, if for no other reason, because they tended to furnish the 'circumstantial guaranty' of the correctness of the book entries. But we are of the opinion that the books, time cards, and other parts of the system were admissible under the Wisconsin statutes, as well as under the general law of evidence." Feuchtwanger v. Manotowoc Malting Company, 187 Fed. 713; 109 C. C. A. 461; Wigmore, § 1730. The evidence in the case at bar shows that the ledger cards used by plaintiff in its system of bookkeeping constitute the original, permanent, and only records of accounts with its customers. This card system is substantially the same as a loose-leaf ledger system of accounts. In Presley Co. v. I. C. R. R. Co., 120 Minn. 295, 139 N. W. 609, the court says: "Error is also assigned because the court received in evidence a sheet from plaintiff's loose-leaf ledger, on the ground that it is not shown to be an account

4 Scott v. Stansfield, L. R. 3 Ex. 220, 223.

5 Houghton v. Humphries, 147 P. 641.

book within the terms of R. L. 1905, § 4719.. The ledger entry was, however, properly received. It was, in fact, an original entry. Mr. Graupman, plaintiff's manager, testified in substance that this ledger is a record kept in plaintiff's office; that the entries in it are made, at the time of the transactions, from temporary sales slips which are not preserved; that this entry was made by a clerk in the office; that he did not know whose handwriting it was; that he saw it at the time it was made up; and that it was a true and correct statement of the account of the sale of this car. . The foundation was sufficient." Many of the numerous decisions upon this subject are under statutory provisions. We have no such statute in this state, and must rest our decision upon reasons which underlie the recognized rules and principles of evidence, as applied to modern business methods and conditions. The original rule has long since outgrown one of the limitations placed upon it by the earlier decisions and law writers, which was that it (Vosburgh v. Thayer, 12 Johns [N. Y.] 461) "was intended for cases of small traders who kept no clerks."6

6 Haley & Lang Co. v. Del Vecchio, 153 N. W. 898.

NOTES OF RECENT DECISIONS.

AGENCY-REAL ESTATE BROKER-COMMISSIONS.-1. Where a broker's contract for the sale of real estate provides for a net amount to the owner, his compensation is such sum as the purchaser is ready and willing to pay in excess of such net price. 2. Where a broker brings the purchaser and owner together, the fact that they conclude a transaction different in terms from the one which the broker was authorized to negotiate does not deprive him of his right to commissions. 3. A stipulation in a real estate broker's contract promising him a compensation in the event of a sale of the property by the owner himself during the life of the contract is valid and enforceable, where the broker has used ordinary diligence in endeavoring to make a sale of the property. Futsell v. Reeves, 176 S. W. 1151. (Ky.)

ATTORNEYS CHAMPERTY AND MAINTENANCE.-It is not against public policy as champerty or maintenance, for an attorney to solicit business, or to advance money to a poor client for his living expenses during litigation, or to advise a client against the settlement of his case. Johnson v. R. Co., 151 N. W. 125; 81 Cent. L. J. 9 note. (Minn.)

AUCTIONS BY BIDDING-OFFER AND ACCEPTANCE.-Where an owner does not, at a sale by auction, announce his intention to bid, by-bidding is illegal and he cannot hold a purchaser where the price has been run up by such means. A bid at auction for the sale of real estate, without notice of reservation, is but an offer to purchase and not an acceptance of an offer, and where a bid is not accepted there is no contract and the knocking down of the property on a higher bid made by an agent of the owner must at least be given the effect of a withdrawal of the property from sale. The action was for specific performance and a decree sustaining a demurrer to the bill was affirmed. Freeman v. Poole, 93 A. 786. (R. I.)

BANKS AND BANKING-DEATH OF DEPOSITOR.-To the extent that a bank check works an assignment pro tanto of a fund on deposit, the death of the depositor will not revoke the authority of the bank to pay the check which has been given for a valuable consideration, and is therefore coupled with an interest. Elgin v. Gross-Kelly Co., 150 P. 922; 81 Cent. L. J. 207. note. (N. M.)

CARRIERS OF GOODS-COMPLETION OF DELIVERY OF GOODS-PRIVATE TRACK.FREIGHT AND DEMURRAGE.-Where a shipment of coal was consigned for delivery to a coal dealer on a private track, which was located, however, on land owned by the carrier and under its exclusive control, the carrier was not entitled to payment of freight and the coal dealer incurred no liability for demurrage until the cars had been placed on said private track. New York, Etc., R. Co., v. Porter, 108 N. E. 499. (Mass.)

CARRIERS OF PASSENGERS-INJURIES TO PASSENGERS BY FELLOW PASSENGERS.-While plaintiff was a passenger on defendant's railroad, P., another passenger, began threatening damage to him. He complained to the conductor, who looked at P., who ceased to annoy plaintiff until the conductor passed to another car, when he again began to threaten violence and to indicate that he would destroy plaintiff's baggage. A man in uniform, who could have been found to be a trainman, came into the car and, seeing what was going on, asked P. to cease bothering plaintiff. P. told

him to "Get out of here!" and he at once went into another car, whereupon P. immediately assaulted plaintiff. Held that the trainman's knowledge of the conduct of P. was such as to make a question for the jury whether the carrier complied with its obligation to use the highest degree of caution in preventing injuries to passengers from all sources. Isenberg v. R. Co., 108 N. E. 1046. (Mass.)

LAW-WAREHOUSEMEN-DUE

CONSTITUTIONAL PROCESS OF LAW.-The Code of South Dakota, declaring that no person, firm or corporation doing a warehouse business, having issued a receipt for the storage of grain, shall be permitted to deny that the grain represented thereby is the property of the person to whom such receipt is issued, and such receipt shall be deemed, so far as the duties of such a bailee are concerned, conclusive evidence that the party to whom it was issued is the owner, is not invalid as an invasion of the province of the judiciary or a deprivation of property without due process. Street v. Farmers' Elev. Co., 149 N. W. 429. (S. D.)

CONTRACTS-LOBBYING-Any person interested in any proposed legislation before any legislative body, including the common council or other lawmaking body of a municipal corporation, may legally employ an agent or an attorney to collect facts relating thereto, and to prepare a bill, and to explain the desired measure to the legislative body or any committee thereof fairly and openly, and have it introduced, and a contract to pay for such services, so rendered, is not a violation of law or of public policy. By an agreement defendant paving company engaged to pay plaintiff 3 per cent of the contract price on all contracts for street Improvement work entered into between it and a city, to be earned when the contracts should have been duly signed by the company and the city, such agreement providing that plaintiff should "at all times do everything in his power" to further the business of the company, it being contemplated that the plaintiff was to circulate petitions among property owners asking that streets be paved with the company's product and obtain signatures of 20 per cent of the property owners, to present such petitions to the city council, to answer remonstrances and, by bringing property owners before the street committee and the council, to procure the passage of ordinances and resolutions authorizing the paving of streets and assessing the expense on the adjacent lots. Such agreement was treated as in effect a selling or promoting proposition, and in view of the fact that the compensation was contingent and was broad enough to cover services of any kind, secret or open, honest or dishonest, and the exercise of personal and private influence upon the city council, and of the further fact that such compensation was probably included in the company's contract price, the agreement was held invalid as against public policy. Hyland v. Oregon Pav. Co., 144 P. 1160. (Ore.)

CONVICTS-COMMUTATION OF SENTENCE.—A prisoner sentenced to the state prison for life, whose sentence is commuted to one for a term of years, is entitled to diminution of that sentence by reason of good conduct commencing on the day of his arrival in prison, and not from the time of commutation of his sentence. State v. Wolfor, 148 N. W. 876. (Minn.)

DAMAGES REDUCTION OF CLAIM-EVIDENCE-In an action for personal injuries, evidence that plaintiff, having an accident insurance policy for $2,000, settled the claim thereunder for the same injuries for $300, was properly excluded, since while if plaintiff had stated to the insurance company or anyone else that his injuries were less than he testified them to be at the trial, or if he thus contradicted himself by acts as well as words, such contradictory statements or acts might be proved, the fact

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