by a judicial officer in any administration of the law which is effective must be discretionary, and therefore not subject to control by inflexible stautes or rules, and not reviewable. Any such control abolishes discretion, and any such review substitutes the discretion of the appellate Court for the discretion of the trial Court. The injustice. often arising can only be understood by those who have carefully studied the course of contested cases and fully realize how little of the flesh and blood of a living tria' cling to the dry bones of a judicial record. The law is not an exact science. The administration of justice can never be made infallible while humanity is fallible. The right of a litigated cause can rarely be determined from mere printed words. It can be caught only in the atmosphere of a trial Court room. It is to be read in the glance of an eye, in the quiver of a muscle, the flushing of a brow, the paling of a cheek, the faltering of a tongue-in the thousand things, seeming trivial in themselves, which the most skillful Court reporter cannot transcribe, but which in combination speak in tones so thunderous as to drown the puny efforts of the most vehement advocate. Hence, the rule, too often ignored to the undoing of the blind goddess: that Courts of review will not disturb findings of fact made by those who have seen and heard the witnesses if the evidence be conflicting. The solution of all these difficulties, I contend, is to leave in our trial. Courts the widest possible discretion and put upon their benches men of such unqualified ability and integrity as to stamp them in every way fit to be entrusted with such prerogatives. When you have done that, give them such security in their tenure as to guarantee independence, and such compensation for their services as their qualifications merit. Then will "the oppressor's wrongs" and "the law's delay" no longer furnish a sufficient excuse for suicide.

Sterling, Colo.

H. P. BURKE.

GARNISHMENT-AGENT OF DEBTOR

DAKOTA NAT. BANK v. BRODIE (HUGHES, Garnishee).

Supreme Court of North Dakota. Jan. 10, 1920. Rehearing Denied March 1, 1920.

(Syllabus by the Court.)

176 N. W. 738.

An agent of the defendant may be held as garnishee for property or moneys of the defendant in his possession.

BRONSON, J. This is an appeal from judgment of the district court in favor of the plaintiff and against the garnishee, the appellant herein. On December 31, 1918, the plaintiff instituted an action to recover the amount of a promissory note made by the defendant, upon grounds of false representations, as alleged that the defendant was the owner of certain lands in McKenzie county. Garnishee process was then served upon the appellant herein, as a garnishee. His garnishee fees were not then paid, but later in the day were tendered to and received by him, but afterwards, in the evening of the same day, he returned such money to the officer.

The appellant principally specifies error upon the grounds:

(1) That the complaint sounds in tort, and not in contract, and therefore the claim was not subject to garnishment.

(2) That the evidence discloses that the garnishee was not indebted to the defendant at the time of the service of the garnishee summons for the reason that previously the bonds had been mailed back to the defendant.

(3) That the garnishee at the time of the service of the garnishee summons was not paid garnishee fees as required by law.

(4) That there is no evidence adduced of the value of the Liberty Bonds.

(5) That in any event the garnishee was a mere agent of the defendant, acting pursuant to instructions, and not liable as a garnishee.

Although, as contended by the appellant, the complaint may be construed as an action in tort, nevertheless the complaint sets forth

facts sufficient to constitute a cause of action in contract upon a promissory note. The parties to the main action have permitted it so to be construed, and the judgment, in fact, was so entered, pursuant to stipulation of the defendant's attorney. Furthermore, the affidavit for a garnishment in this action, made by the plaintiff's attorney, states that the cause of action is founded upon contract. In February, 1919, the garnishee made his affidavit denying liability. On January 6, 1919, the plaintiff took issue with such affidavit. Later, in March, 1919, the garnishee made a motion upon the order to show cause for dismissal of the garnishment, upon the ground that the action was not upon contract. This motion was denied by the trial court.

We are satisfied, therefore, upon this record, that the plaintiff and the defendant had the undoubted right to treat this action as an action on contract, and that the garnishee after disclosure was not in a position to question the nature of the main action, as treated and construed both by the parties and the court. See note 13 Am. Dec. 341; 100 Am. Dec. 511; 20 Cyc. 1076; Rood on Garnishment, § 182; Ihorn v. Wallace, 88 Ill. App. 562, 564; May v. Gesellschaft, 211 III. 310, 71 N. E. 1001.

Upon the issue that the property was not in the possession of the garnishee at the time of the service of the garnishee summons, the trial court has found adversely to the contention of the appellant. Without reviewing in detail the evidence and circumstances necessary to justify such findings, we are, of the opinion that there is presented upon this record a question of fact whether the bonds were in the possession of the garnishee at the time of the service of the garnishee summons, and, upon usual presumptions, that the findings of the trial court in that regard should not be disturbed. Upon this record the contention of the gar nishee concerning the payment of garnishee fees is without merit. The evidence is fully sufficient to establish a waiver in that regard. Concerning the question of value, the presumption obtains that the bonds of our federal government are worth par value until the contrary is shown. Section 7180, C. L. 1913; Patterson v. Plummer, 10 N. D. 95, 86 N. W. 111; Anderson v. Bank, 6 N. D. 497, 72 N. W. 916. There is some contention made upon this ap peal that the garnishee was a mere agent of the defendant for a certain purpose, and as such could not be subject to garnishment. Under our statutes an agent may be liable for

property in his possession belonging to his principal through garnishment proceedings. Section 7567, C. L. 1913; 20 Cyc. 118. See, also, Shortridge v. Sturdivant, 32 N. D. 154, 155 N. W. 20; Petrie v. Wyman, 35 N. D. 126, 143, 159 N. W. 616.

The judgment is in all things affirmed, with costs to the respondent.

CHRISTIANSON, ROBINSON, and BIRDZELL, JJ., concur.

GRACE, J. (dissenting). The evidence is conclusive that at the time the garnishee summons was served upon the garnishee he had no property in his possession belonging to the defendant.

On December 30, 1918, the garnishee had by United States mail remitted to the defendant the bonds in question. There is no evidence to dispute this fact. He was not garnisheed until the following day.

As we understand the matter, there was no order of the court restraining the garnishee from remitting the bonds as he did, and he had a perfect right to remit the bonds. Hence at the time of the service of the garnishee summons he had no property in his possession or under his control belonging to the defendant.

NOTE Garnishment of Agent Holding Funds for Specific Purpose.-It is not attempted in this note to treat of agents of corporations being or not garnishable, the authorities on this subject being in irreconcilable opposition. The rule as to garnishees of an individual generally is that their possession is to be deemed personal. But the specific purpose bringing about possession in an agent may qualify this general rule.

Thus, where a check was received by a garnishee to be delivered to another, the check being made payable to the garnishee, this was held not a personal possession by him. Campbell v. Hanney, 19 R. I. 300, 33 Atl. 444. The garnishee happened to be an agent of a corporation, but this fact was not stressed. It was said "the mailing of the check was tantamount to delivery to the company, and consequently it nor its agent did not have in their possession any of the personal property of defendant." In Atwood v. Hale, 17 Mo. App. 81, it was ruled that the whole tenor of attachment laws and garnishment thereunder regards operation on legal property rights, and, therefore, where there is employment and service making real possession and control with employer, the employe is not garnishable.

In Skowhegan Bank v. Farrar, 46 Me. 393, it was said there must be privity of contract, express or implied, between the principal debtor and the garnishee. And, therefore, it was ruled that

where one had possession of mortgaged property as agent of mortgagee, he is not chargeable as garnishee of mortgagor "for the obvious reason that the mortgagor has not intrusted or placed the property in his hands."

In Barker v. Esty, 19 Vermont 131, it was said: "It has never been considered that trustee process (garnishment process) extended to any other class of debtors or demands than such as are the ordinary result of contract."

In Penniman v. Ruffles, 6 N. H. 166, a case in which an attaching officer had placed goods with an auctioneer to sell, a third person sought to reach the proceeds in the hands of the auctioneer. The Court held him not liable "as there was no privity of contract between him and the (principal) defendant, and that he should account to the officer who employed him."

In Freeman on Executions, § 162, it is said: "Garnishment, whether made under an attachment or under an execution, is a legal and not an equitable proceeding."

In 20 Cyc. 1018, it is said that property which has been turned over to an agent for the payment of designated creditors notified of such disposition and acquiesced therein, cannot have its disposition interfered with by other creditors or claimants. There are numerous cases cited in support of this proposition; thus Walton v. Bethune, 37 Ga. 319; Johnson v. Pace, 78 Ill. 143; Van Winkle v. Iowa Iron, etc., Co., 56 Iowa 245, 9 N. W. 211; Mayhew v. Paine, 42 Me. 296; Collins v. Smith, 78 Mass. 431.

And where notes or other demands have been given to an agent for collection, he cannot, prior to their collection, be made liable to garnishment. Thus in Mayes (Garnishee) v. Phillips, 60 Miss. 547, where an attorney had been garnished as to possession of promissory notes due by third persons he was undertaking to collect, it was ruled he could not surrender them into the possession of the Court, and it had no power to compel him to collect them.

In Hurbut v. Hicks, 17 Vt. 193, 44 Am. Dec. 329, it was ruled that an attorney only could be made liable to trustee (garnishee) process if he collects the money after service of the process and previous to the making of his return.

But where notes were delivered to an agent with instructions to pay proceeds, when collected, to certain notes, the Court thought it did not appear that this was an irrevocable delivery, so far as the proceeds were concerned, and they could be seized under a proceeding in garnishment in a suit against their owner. Clark v. Cilby, 36 Ala. 652, 76 Am. Dec. 343. This is a brief case and concerned merely an arrangement by the principal debtor.

Where an attorney in answering summons in garnishment, declared on oath that he could not answer without disclosing matters confided to him in a professional relation, he should be excused. White v. Bird, 20 La. Ann. 188, 96 Am. Dec. 393.

So it appears that the right of garnishment of an agent is subject to some limitations, where facts may be shown that it interferes unduly with a situation outside of the ordinary relation between a principal and his agent. C.

ITEMS OF PROFESSIONAL

INTEREST.

WAR ASSOCIATION MEETINGS FOR 1920— WHEN AND WHERE TO BE HELD.

American-Statler Hotel, St. Louis, Mo., August 25, 26 and 27.

Arkansas-Hot Springs, June 2 and 3.
Georgia-Tybee Island, May 27, 28 and 29.
Hawaii Honolulu, May 26.

Illinois-Hotel Sherman, May 28 and 29.
Indiana―Indianapolis, July 7 and 8.
Iowa-Cedar Rapids, June 24 and 25.
Kentucky-Henderson, July 14 and 15.
Maryland-Hotel Chelsea, Atlantic City, N.
J., June 24, 25 and 26.

Michigan Detroit, June 25 and 26. Minnesota-St. Paul, July 27, 28 and 29. New Hampshire-Hotel Wentworth, Newcastle, June 26.

New Jersey-Atlantic City, June 11 and 12. North Carolina-Asheville, June 29, 30 and July 1.

Ohio-Cedar Point, July 6, 7 and 8. Pennsylvania--Bedford Springs, June 22, 23

and 24.

Texas-El Paso, July 1, 2, 3.

West Virginia-Wheeling, July 28, 29. Wisconsin-Milwaukee. September 28, 29 and

30..

CORRESPONDENCE.

SUITS AGAINST RAILROADS UNDER FEDERAL CONTROL.

Editor Central Law Journal:

I have just read Br. Edgar Watkins' article in your issue of April 2nd, page 245, relative to suits against railroads under Federal control. I also recall the former article by Mr. Watkins. Mr. Watkins apparently takes the position that General Order No. 50 of the Director General is not valid because the act of Congress permits causes of action arising during Federal control to be prosecuted against the carrier. It will be noticed that the act does not say that suits would be prosecuted against the railway company but against the carrier and the carrier during Federal control is the entity operated by the Government. The railroad com. pany has nothing to do with it. I have never been able to come to any other conclusion than the one arrived at in Haubert v. B. & O. R. R.,

THE FEDERAL CONSTITUTION.

Editor, Central Law Journal:

I have never been able to understand why plaintiffs persisted in asking judgment against the Railroad Company instead of the Director General, unless the plaintiff was seeking some ulterior benefit. Suppose in the Haubert case the plaintiff had taken judgment against the B. & O. R. R. Company for damage caused by the Director General. The Director General not being a party to the suit. And now the Government having relinquished control he could take his execution against the B. & O. Company and they would have no defense because it is clear that under any system of logical reasoning that whatever would be sufficient to restrain Haubert from having execution would have also been a good defense if interposed in the suit where judgment was sought. The judgment roll would not show that the Government had any connection with the cause of action and would not show that the Government was in any way liable and could not show it properly unless the Government had had its day in court.

While, if the Director General was made a party and makes his defense, then when the Government comes to pay the judgment as it would have to do, the judgment itself would show that it was such a judgment that the Government would be bound by it.

The question as to whether the company or the Government should ultimately pay the amount adjudged should be decided in the trial where the judgment is obtained and it could not be properly decided unless the Director General was a party.

When the law provides that suits may be brought and judgment rendered as provided by law it means that the substantial rights of the parties should be decided by the law as it existed prior to Government control. Suppose one cause of action arose in December, 1917, and another arose in January, 1918, after Government control; if both suits were against the Railroad, how could we know which one the Government should pay?

The Government should be bound on the face of the judgment.

Marshall, Tex.

F. H. PRENDERGAST.

I desire through the columns of your widely read Journal to propound two questions to the lawyers represented by Mr. Wayne B. Wheeler, in your Journal of February 27, 1920, and Mr. William L. Frierson, in the Harvard Law Re view for March, 1920.

Both of those gentlemen concur in Mr. Frierson's proposition on page 665, 33 Harvard Law Review, March, 1920, as follows:

"The legislatures of three fourths of the states are clothed with the final and absolute power of determining whether an amendment regularly proposed is wise, desirable, or necessary. When this power has been exerted, as in the case of the Eighteenth Amendment, there is no power in our government to prevent the amendment from becoming a part of the Constitution."

Suppose the legislatures of three fourths of the States, after necessary prerequisites have been complied with, have ratified a proposed amendment to the Constitution of the United States, repealing Article V in toto, and proclamation to that effect has been made by the Secretary of State of the United States, what legal redress have the objecting States?

Or suppose an amendment has been proclaimed as having been adopted by three fourths of the States, which requires representation of States in the Senate to be proportional to population, what legal redress have the objecting States?

According to the dicta of Mr. Wheeler and Mr. Frierson, "there is no power in our Government to prevent the amendment from becoming part of the Constitution."

The Constitution nowhere declares that Article V cannot be amended or repealed. There is nothing sacro-sanct in Article V on its face, and there is no provision in the Constitution which exempts that article from amendment more than any other article of the Constitution of the United States. The same power which enacted Article V of the Constitution can amend or repeal it.

The United States are nothing but a political or governmental corporation. Like any other corporation, its existence is subordinate to the power which created it; it is not a sovereign, except in relation to foreign countries. At home, it is only a creation of the States which are the only sovereigns.

Mobile, Ala.

FREDERICK G. BROMBERG.

BOOK REVIEW.

CORPUS JURIS VOLUME 14.

The long looked-for volume of Corpus Juris on the subject of Corporations has at last appeared. It was delayed because of the death of William Lawrence Clark, to whom the task of preparing the article on Corporations had been assigned. The article on Corporations completely fills Volume 14 and will require another volume to complete it. This was probably unexpected since volumes 15 to 18 were prepared and published without making any provision for the subject of Corporations requir ing more than one volume for its treatment. This will necessitate the numbering of the additional volume which will contain the discussion of the last six titles of the subject of Corporations, Volume 14a.

The discussion of the rules of law governing this most important of all business organizations is thoroughly practical. The authorities have been exhaustively cited and analyzed. This analysis, such a valuable characteristic of Corpus Juris, is carried out with such detail that almost every possible variation in the ap plication of the legal principles applicable to corporations is set forth and discussed either in the text or in the notes. To give one in stance, the subject of the liability of promoters is treated with a wealth of detail hardly to be found in any other treatment of that important subject.

The general treatment of the subject is divided into nineteen titles. I, In General; II, Incorporation and Organization; III, Corporate Existence and Franchise; IV, Defective Incorporation; V, Promotion of Corporations; VI, Corporate Name, Seal, Domicile and Place of Business; VII, By-Laws, Rules, Regulations and Records; VIII, Capital Stock; IX, Subscription to Capital Stock; X, Transfer, Sale, Mortgage or Pledge of Stock; XI, Dividends; XII, Members and Stockholders. These titles are discussed in Volume 14. The following titles will be treated in Volume 14a: XIII, Officers and Agents; XIV, Corporate Powers and Liabilities; XV, Insolvency and Receivers; XVI, Reincorporation and Reorganization; XVII, Consolidation; XVIII, Dissolution and Forfeiture of Franchise; XIX, Foreign Corporations..

The tremendous importance and vitality of the subject of Corporations in respect to the number and variety of the legal problems which it presents is evidenced by the great number of cases which are cited in this volume. It is

unlikely, however, that this great flood of cases will subside for some time and we may expect to see fine distinctions made still finer until the dividing of a hair between north and northwest side will not seem to be an extravagant simile by which to compare the close reasoning of the courts on questions connected with this growing branch of the law. The publishers of Corpus Juris expect to keep abreast of the new cases by the publication of Annual Annotations.

Printed on 1,138 pages of thin paper, bound in buckram and published by The American Law Book Company, New York.

HUMOR OF THE LAW.

"Poor old Bill ain't 'arf up against it! His firm 'ave agreed to the strike terms, an' 'is lot 'ave to go back to work."-Kansas City Star.

"Judge, I wish you'd put me on probation." "How long did I sentence you for?" "One year. But I want to get married." "You wish me to substitute for a sentence of one year a sentence for life? That would be unconstitutional." - Louisville Courier-Journal.

Smith-I lost my identity for two whole weeks last summer.

Jones-How did it happen?

Smith-Spent my vacation among wife's relations, where I was simply known as Anna's husband.-Philadelphia Inquirer.

A few compliments to the men of Salem:

"You may know a Salem man when you meet him in the world over. He carries about him a little auld lang syne that shows where he came from. Sometimes it is in the cut of his jib, sometimes of his coat, sometimes it is the way in which he shoots across a street, always slanting, never at right angles, or from his style of shortening things in the way he utters some familiar words; he never takes off his coat, but his 'cote'; he never rides upon the road, but always 'rode'; and if you should pick up a final 'g' in 'ing' you may be sure some of the Salem people are the unfortunate ones who have dropped it."--Address at the Fifth Half Century Anniversary of the Landing of John Endicott at Salem, Sept. 18, 1878.