THE

OKLAHOMA

LAW JOURNAL

EDITED AND PUBLISHED MONTHLY BY

D. H. FERNANDES, GUTHRIE, Oklahoma.

VOL. 12.

March, 1914.

No. 9

PROBABILITY THE KEYSTONE OF SUCCESSFUL LAW PRACTICE.

In the practice of the law there are many things to take in consideration besides the substantive law of similar cases or the decisions that seem to support a particiular case about to be brought.

Such is a great mistake. It

One may think that his cause is just and that he has evidence to maintain it at the trial. But evidence to prove your side of the case is often spoken of as if it were all in one piece on a large canvass; that all one has to do at the trial is to place this canvass or map before the jury as a whole. will be well for the trial lawyer to have it clear in his minds eye as a map before him, but this is not enough. He must remember that his evidence as rule is in several pieces called facts; that while it is before him as a whole, it is often composed of many picces and that these pieces or facts stand in the canvass supported by somethingthat something is probability. If not so supported they will prove of no avail, and one by one will drop out and

leave his map without having served any useful purpose in sustaining the cause. The facts are the support of the case, and probability the support of the facts for probability is made up of the circumstances that surround and support them. If one was to state that he had been on top of a building and that he let himself down by jumping against the opposite perpendicular wall and by the rebound jumped into the floor below through a window, no one would believe him; but if he stated that he made a rope, even out of his own clothing sufficiently long to reach that window, there would be credibility in it. The circumstances that tend to establish facts are often stronger than positive testimony. As said by an able trial lawyer: "Probability is the atmosphere that surrounds facts." The work of the attorney is only begun when his client has told what he can prove. The question then becomes, are these facts as related probable, and such as men of ordinary experience will accept and believe.

In compulicated cases it has been said that "probability is a ray of light cast upon a dark spot." It is the light that must be secured from the circumstances and that of necessity must be attendant even with the positive testimony. As far back as the days of Aristotle the art of knowing the force of probability was well understood; for in his discussion on the 'Art of Reasoning," speaking of the rules of proof in law matters, he said that where an advocate could not call witnesses to establish facts by positive testimony, to say: "That it was impossible to lead probably estray on the score of money, and that probability is never detected bearing false testimony." This was true in Aristotle's day and it is true today-that the establishment of facts whether by direct or circumstantial evidence must be supported by probability, and that proba

bility cannot be brought. Thoughtful attention is the price paid for probability in complicated cases--it is the thorough search for minute details carefully gathered and appropriately grouped that must be ascertained to create the needed probability. And this probability that the lawyer needs is not merely that which may appear possibly true, but it must be made to appear probably true. That probability which carries conviction to courts and juries that probability which approaches the real absolute truth, according to human experience. As the celebrated Donovan has remarked, that, "the outcome of every hard fought case is not so dependent on its merits but on the lawyer that arranges the facts,”—the facts clothed with probability--the element that establishes belief. Even false facts clothed with probability often over power true ones. "Painted error often has greater influence than naked truth improperly explained."

BANKRUPTCY CASES.

Indorsers for Bankrupt-Payment-Rights of Indorsers-Act of July 1, 1889, 1. h. 541, Sec. 57 i, provides that whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove the same, such person may do so in the creditors name, and if he discharge the undertaking in whole or in part he should be subrogated to the extent of the rights of the creditor. HELD, that where the indorseres paid certain amounts less than their full face value to the holders and were thereupon discharg. ed from liability as indorsers, and the holders proved the notes for the entire amount as claims against the bankrupt's estate, the indoreers were not entitled to prove the amounts paid by them on the notes as claims against the estate, being only entitled to receive from the hold

any over plus more then the total amount due on the notes after crediting the dividends received from the bankrupt's estate and the amount received from the indorsers.

In re Manhattan Brush M. F. G. Co. 209 Fed. 997.

Bankruptcy-Partnership-Property of Partner.-A firm, of which Francis was a partner, was adjudicated bankrupt, and an order was entered subjecting the individual estate of Francis to administration in bankruptcy, although Francis had not been adjudicated bankrupt. Francis resisted this order on the ground that a partnership is an entity separate and distinct from the partners composing it, by virtue of § 5 Bankruptcy Act 1898, and that such Act does not provide for the administration in bankruptcy of the estate of a person not adjudicated bankrupt. HELD, the individual liability of partners for debts of the firm is primary and direct, and ×1 individual partner, even though he has not been adjudged a bankrupt, may be required to turn over his separate estate for administration to the trustee in bank. ruptcy of the firm, when the partnership and individual estates together are not enough to pay partneship debts. Franois vs. McNeal, (1913). 33 Sup. Ct. 701.

MICHIGAN LAW REVIEW.

Bankruptcy Appeal from Order-Disputed Facts.The proper remedy against an order of the District Court, resulting from a consideration of disputed facts and depending upon the findings made thereon, is an appeal under the provisions of section 24 (a) of the Bank ruptcy Act, and not a petition to revise under section 24b.

Wells v. Sharp, 31 Am. B. R. 348.

Appeal from District Court of Tilman County. Hon. Frank Mathews trial Judge.

Affirmed

1. It is not required that an indictment or information should set forth with precision some particular day as the time when the offense was committed, except where time is a material ingredient of the offense; and an indiotment charging the crime of statutory rape to have been committed "on the day of May, of A. D. 1911," is not subject to demurrer because the day of the month is left blank.

2. The exact words of the statute defining a crime need not be used, in the indictment or information charging it, but any words clearly and intelligibly setting forth the offense are sufficient.

3. The state has the right, on cross-examination, to show the nature of the relations existing between the witnes and the defendant, so far as their relations are such as would create a bias that might reasonably be supposed to affect the credibility of the witness, and this rule cannot be changed by the fact that such evidence would probably prejudice the defendant in the minds of the jury.

4. The privilege of degrading a witness by proof of disreputable conduct, not connected with the facts on trial, is one so liable to abuse that it should be closely guard.