by the court except upon proof of fraud. But tioned confer no power on the court to change this contract is in most respects a peculiar their obligation. The legal obligation of a one. It is made between a borrower and a contract is the right to have it enforced aclender at the moment when the want of the cording to its terms. This obligation attaches latter often puts him in the power of the to all contracts which are valid when made. former for a payment in the nature of a pen- The Constitution of the United States inhibalty, with little, if any, expectation on the its the States from passing laws impairing part of the borrower, that the contingency this obligation. But this constitutional upon which it is to become operative will provision is of little worth, if the power ever happen. If not a mere cover for usury, denied by it to the States, may be exerit in effect concerns the amount of compensa. cised without a statute by the courts. Betion to be paid to an oflicer of this court for yond question if the legislature of Oregon professional services herein, by the adverse should enact a law declaring that only oneparty as a substitute for his common law fifth, or any sum less than the whole, of the costs.' Such a contract is in some sense un- fee stipulated for in such contracts could be der the power of the court, and ought not to recovered, any court holding such contracts be enforced by it, unless it plainly appears to valid, would be compelled to hold the law, as be reasonable and just." We are here intro- to contracts existing at the date of its enactduced to a new kind of contract. It is a con- ment, unconstitutional and void, as impairing tract having obligatory force, not according the obligation of contracts. Under the suto its terms, but according to the discretion preme authority of the Constitution of the of the court called upon to enforce it.

United States the obligation of contracts is The things which must concur to constitute inviolable. It is not subject to invasion a valid contract, are: the assent of parties from any quarter. Courts no more than legcapable of contracting, expressed in plain islatures can encroach upon it. terms, in relation to a subject matter about The law is in somethings somewhat flexible which it is lawful to contract, and a suflicient and elastic. But in the law of contracts there consideration. The court found all these is no principle that will give the court power conditions fulfilled in the contract it was to divide a contract in the middle, and where considering. Ilaving reached the conclusion the parties have agreed on a fixed compensathat the contract was valid, it would seem tion for a given service, declare the agreethere was nothing left for the court but to ment to pay for the service valid, but disrerender judgment for its enforcement. But gard it in so far as it fixes the amount to be instead of rendering judgment to enforce the paid, and substitute in lieu thereof such comcontract made by the parties, a new contract pensation as it deems reasonable. And here was made for them by the court, upon which an important inquiry suggests itself. If the judgment was rendered. A contract with attorney's fee stipulated for, is less than the which such liberties may be taken, is not a services rendered are worth, will the court incontract at all. It is of the very essence of crease it? If not, why not? If the court a contract, that it confers on one party the take it upon itself to diminish the compensaright to demand performance according to its ion agreed upon by the parties, when it terms, and on the other party, the duty of deems it excessive, why not increase it when performance. A contract is defined to be an it is found to be inadequate? Again, is the agreement enforceable by law. A contract rule reciprocal? If a suit is brought on a not enforceable by law is void, and no court contract containing such stipulation and the can enforce a void contract either in whole or defendant has judgment, who pays his attor

neys fees? If the court has the power to The description given of the situation of mould such contracts to meet the ends of justhe parties to such contracts, and the circum- tice, why not inject into them an implied obstances under which they are made, consti: | ligation of the plaintiff to pay the defendant's tute, as we shall presently see, in the opinion attorneys fee where he succeeds in his deof a good many courts, grounds for holding fense? In Day v. Woodworth, the plaintiff them void; but when it is conceded that such contracts are valid, the circumstances men- 313 How. 873.

in part.

7

6

view of the English Courts. The leading case, perhaps, in support of the doctrine, is Hartfield v. Raper, and Justice Cowen says that "The application may be harsh when made to small children; as they are known to have no personal discretion, common humanity is alive to their protection; but they are not therefore exempt from the legal rule when they bring an action for redress, and there is no other way of enforcing it, except by requiring due care at the hands of those to whom the law and the necessity of the case has delegated the exercise of discretion. An infant is not sui juris. He belongs to another to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose. In respect to third persons, his act must be deemed that of the infant; his neglect the infant's neglect. It is plain in the nature of things that if an infant insists on a right of action, he must show a compliance with the conditions, on which his

consideration of humanity, willing enough to count upon probable gains from such reckless conduct."

When an infant has committed no negligent act, the conduct of the parent or protector, is immaterial. 10

11

The courts of New York while they have not formally overruled their earliest decisions. now limit the doctrine to quite young children, unattended, and who are of an age, at which they ought not to be trusted with the care of themselves.1 Waite v. Northeastern Railroad Co.,12 is the leading English case upon the subject and limits the operation of the rule to cases where the protector is actually present and controlling the actions of the child; "and to us," says Justice Stayton in Galveston Railroad v. Moore, 18 "this would seem to be the utmost limit to which the rule, in reason and upon sound principle, could be extended." 14 But many authorities reject the doctrine of imputable negligence alto

22

1

social standing and condition, and that where entered; that the entry of the journal is an interparents are laborers and their time constantly | polation and unauthorized, and that he has never employed, it can not be imputed as neg

been sentenced by any court. As a matter of

fact, if parol testimony is competent to contraligence on the part of such parents, if they

dict the record, it can be shown that at the last fail to provide a constant watch over their

day of the December term the motion in arrest of children of tender years.

judgment was called for hearing. The parties Danville, Ind.

M. W. HOPKINS. were not ready and desired further time. The

presiding judge of that court had some time be

fore tendered his resignation, to take effect Jan22 Kay v. Pennsylvania R. Co., 65 Pa. St. 269; Chicago v. IIesing, 83 Ill. 204; Chicago v. Major, 18 Ill.

uary 1, 1883, and he, at that time, stated to the 349; Chicago, etc. R. Co. v. Gregory, 58 III. 226. parties that it must then be heard or go over for

consideration by his successor. It was thereupon agreed by the county attorney and the attorney

for defendant, that the motion in arrest and the IIABEAS CORPUS RECORD OF A COURT

further disposition of the case should be heard OF GENERAL JURISDICTION CAN NOT

before Judge Peters, the then judge at Topeka, BE OVERTHROWN BY PAROL TESTI.

on the third or fourih of January following, and MONY.

that the disposition which he should then make

of the motion and the case should be entered of WATSON v. BALCH.

record as a part of the proceedings of the last

day of the December term. On January third or Supreme Court of Ransas, August 8, 1883.

fourth the motion in arrest was in fact argued be

fore Judge Peters at Topeka, and his decision While it may be shown by parol testimony that the court in fact had no jurisdiction, because no process

there announced, overruling the motion and has been served, yet, when once it is admitted that

sentencing the defendant. The journal entry conthe court did have jurisdiction, the only evidence taining this ruling was not there and then signed which can be received of the action of the court is its by him, but was forwarded to him at his resirecord, and that record is eonclusive of any collateral dence in Harvey county, and within a day or two proceeding against parol attack.

thereafter signed by him and forwarded to the

clerk of Chase county district court, and by him Original proceedings in habeas corpus, in chan- entered on the journal. Now, if parol testimony cery.

is competent to contradict the record, it will apS. N. Wood and Waters & Ensminger, for peti- pear that the motion in arrest of judgment and tioner; W. A. Johnston & S. P. Young, for re- the oral announcement of the motion and sentspondent.

ence was made by Judge Peters after his term of BREWER, J., delivered the orinion:

office had expired by resignation, and when he This is an application in habeas corpus. The was in fact a private citizen and outside of the facts are these: The petitioner is in the custody district. This, therefore, is the question presented, of the respondent, the sheriff of Chase county, whether, in a habeas corpus case, the entry of a under a warrant of commitment issued by the judgment in the district court entered in the orddistrict court of that county. It appears that in inary way on the journals of that court, and in all the forepart of 1882 an information was filed things apparently regular, can be overthrown by against the petitioner charging him, under sec. parol testimony. Such entry was ordered and di15 of the Crimes Act, with administering medi- rected by one who had ceased to be a judge of cines, drugs, etc., to a woman with a quick child, that court, and while assuming to act outside of with the intent to destroy such child. The case the district. The case has been argued very fully, was tried at the May term, 1882, and the defend. authorities cited on both sides, and appeal made ant found guilty, under sec. 44 of such act, of ad- to some elementary and familiar rules of law. On ministering medicines, etc., with intent to pro- the one hand, it is said that no magistrate, cure abortion. The motion for a new trial was judicial or other has jurisdiction outside of made and overruled. All this took place at the the territory of which he is an officer, Morrell May term. Thereupon a motion in arrest of v. Ingle, 22 Kas. 32; Coms. of Marion County judgment was filed and continued to the Decem- v. Barker, 25 Kas. 258; Phillips v. Thralls, 26 ber term. On the journals of the court of the Kas. 780. And again that no private citizen December term, at its last day, appears au entry may usurp the functions of a court and prooverruling the motion in arrest of judgment, and nounce judgment and sentence against a party. sentencing the defendant to pay a fine of $50 and On the other hand, it is insisted that the reccosts. A bill of exceptions was duly signed and ords of a court import absolute verity and cansuch judgment appealed to this court, and the not be overthrown by parol testimony. With judgment affirmed at the July session for 1883. some hesitation in view of the decisions already Now it is claimed by petitioner that this entry of made by this court, I think the latter proposition a judgment at the December term of the district is controlling. It may be remarked, in the first court is wrong; that in fact no judgment was then instance that no fraud or deception has been