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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.

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It is said to be a contract which "concerns the amount of compensation to be paid to an officer of this court for professional services." This is true of every contract between a lawyer and his client. The court has no greater power over such contracts than it has over any other. It certainly cannot be successfully maintained that a lawyer's contract with his client, fixing the compensation he is to receive for his professional services goes for nothing. Lawyers labor under no such diзability. But the stipulation is said to be "a substitute for his common law costs." It is not quite clear whether the pronoun “his” in this sentence refers to the plaintiff in the action or his attorney and it is not material. Neither the plaintiff nor his attorney at common law was entitled to costs. "There were no costs at common law." 4 "By the common law, costs were not recoverable in a plea real, personal or mixt."5 Every taxable item of costs is specified in the fee bill and no other can be taxed.6

It is admitted such contracts are mischievous and oppressive. An attempt is made to palliate their injurious effects by adopting a rule of decision as novel as it is dangerous to the sanctity of all contracts. The remedy is worse than the disease, and is besides inadequate. The error lies in giving vitality to such contracts. If their validity is once conceded, it is then beyond the reach of judicial power to restrain or control them, except for reasons equally applicable to other contracts. Extirpation and not palliation is the remedy.

The sound view seems to be that such a provision is a stipulation for a penalty, tends

4 Bacon Ab. Title Costs, (A).

5 Comyn's Digest Title Costs, (A1); Day v. Woodworth, 13 How. 369; Kneas v. Schuylkill Bk., 4 Wash. C. C. 106.

6 The Ship Liverpool Packet, 2 Sprague 37; Lyell v. Miller, 6 McLean 422; Dedekam v. Vose, 3 Blatch C. C. 153.

to the oppression of the debtor and to encourage litigation, is a cover for usury, is without any valid consideration to support it, s contrary to public policy and for these reasons void.7

Bullock v. Taylor, 39 Mich. 139; Meyer v. Hart, 40 Id. 517; Witherspoon v. Mussulman, 14 Bush. 214; Shelton v. Gill, 11 Ohio 417; Martin v. Trustees Bel. mont Bk., 13 Id. 250; Dow v. Updike, 11 Neb. 95; 2 Parsons, Notes and Bills, 414; Merchant's Nat. Bk. v. Sevier, 14 Fed. Rep. 662. And see to same effect note to Jones v. Radatz, 11 Cent. L. J. 513; 12 Id. 337; 14 Am. Law Rev. 858.


The doctrine of imputable negligence is the attributing to a child, the negligence of the parent, guardian or protector; that is to say if a child of immature years and discretion, acts, in such a manner as would constitute negligence in one of mature years, and is thereby injured, it is considered that the parent or guardian is responsible for, and was negligent in allowing such acts, and that the child is thereby precluded from all redress; and this doctrine has been held to be the law in New York,1 Indiana,2 Massachusetts, perhaps Illinois and other States where the question has arisen in some of its many variations.5 And the same is the

1 Hatfield v. Roper, 21 Wend. 615; Flynn v. Hatton, 4 Daly 552; Maugam v. Brooklyn, R. Co., 38 N. Y. 455; Lehman v. Brooklyn, 29 Barb. 231; Burke v. Broadway & S. Ave. R. Co., 49 Barb. 529; Houegsberger v. Second Ave. R. Co., 1 Keyes. 570; Jetter v. N. Y. & H. R. Co., 2 Abbott Ct. App. 458; Bulger v. Albany R. Co., 42 N. Y. 459; Thuber v. Harlem R. Co., 60 N. Y. 326; Castello v. Syracruse B. & N. Y. R. Co., 65 Barb. 92; Brown v. Maxwell, 6 Hill 592; Munger v. Tonawanda R. Co., 4 N. Y. 319; Willetts v. Buffalo R. Co., 14 Barb. 585; Kreig v. Wells, 1 E. D. Smith 74; Morrison v. Railroad, 56 N. Y. 302; Button v. Hudson, Riv. R. Co., 18 N. Y. 251.

2 Hathway v. Toledo, W. & W. R. Co., 46 Ind. 25; Pittsburg, Ft. W. & C. R. Co. v. Vining, 27 Ind. 513; Lafayette & I. R. Co. v. Huffman, 28 Ind. 287; J. M. & I. R. Co. v. Bowen, 40 Ind. 545; Toledo R. Co. v. Goddard, 25 Ind. 185; Evansville v. Crawfordsville R. Co., 69 Ind. 89; Evansville R. Co. v. Wolf, 59 Ind. 89.

3 Hally v. Boston Gas Light Co., 8 Gray. 123; Wright v. Malden & M. R. Co., 4 Allen 283; Callahan v. Bean, 9 Allen 401; Lynch v. Smith, 104 Mass. 52; s. C., 6 Am. Rep. 188; Elkins v. Boston & A. R. Co., 115 Mass. 190.

4 Chicago v. Starr, 42 Ill. 174.

5 Louisville P. C. R. Co. v. Murphy, 9 Bush. 522; Brown v. European & N. A. R. Co., 58 Me. 384; Leslie v. Lewiston, 62 Me. 468; Bannon v. B. & O. R. Co., 24 Md. 103; East Saginaw R. Co. v. Bohn, 2



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


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

road v. Moore furnishes a well reasoned decision and of very recent date upon the subject and is reported in full in the CENTRAL. LAW JOURNAL. 16

The court, in considering this case, adopts the language of the court in Street Railway v. Hanlon, and says: "If a child should be abandoned by its parents, thrown out as a mere waif on society, it is not possible, it 10 McGary v. Loomis, 63 N. Y. 104.

right is to arise, and this is entirely irrespec-gether.15. The case of the Galveston Rail-
tive of his age." In the same line with this
we have decisions that all persons are held to a
reasonable degree of prudence as to their own
safety and that a child of tender years is re-
quired to take the same care of itself as any
other person. An excellent reason for the
doctrine is given in a note to Cooley on Torts,9
in which the eminent jurist says, that "It may
be urged, with some plausibility, that this doc-
trine is more likely to guard the interests of
children and imbeciles than is the opposite.
If a heartless parent or guardian may suffer
a child to take his first lessons in walking in
the crowded streets of a city, and then, when
he is injured or killed as in all probability he
would be, may recover for, such injury or
killing, on the ground that the child himself
is too young to be chargeable with negligence
there will not, perhaps, be wanting depraved
custodians of children, unrestrained by any

Mich. 503; Karr v. Parks, 40 Cal. 188; Ewen v. Chicago
R. Co., 38 Wis. 613; Campbell on Negligence, Sec. 81;
Rauch v. Lloyd, 7 Casey 371; Railroad v. Spearin, 11
Wright 303.

6 Singleton v. Eastern County R. Co., 7 C. B. (N. S.) 287; Maugan v. Atterton, L. R. 1 Exch. 239; Lygo v. Newbald, 9 Exch. 302; Hughes v. Macfie, 2 Hurl. & C. 744; Lumsden v. Russell, 28 Jur. 181; Balfour v. Baird, 30 Jur. 124; Davidson v. Monkland, 27 Jur. 541.

7 21 Wend. 615.

8 Burke v. Broadway R. Co., 49 Barb, 529; Munger v. Tonawanda R. Co., 4 Comst. 349.

9 Page 682.

11 Maugam v. Brooklyn, R. Co., 38 N. Y. 455; Ihl v.. Forty Second St. R. Co., 47 N. Y. 317; Mowrey v. Central City R. Co., 51 N. Y. 666; Reynolds v. N. Y. Central R. Co., 58 N. Y. 248; Harris v. Uebelhoer, 75N. Y. 169; Casey v. N. Y. Cent. R. Co., 78 N. Y. 518; Cosgrove v. Ogdon, 49 N. Y. 255; s. C., 10 Am. Rep. 361; Bullock v. Babcock, 3 Wend. 391. 12 El. Bl. & El. 719.

13 16 Cent. L. J. 273.

14 Stillson v. Hannibal R. Co., 67 Mo. 671.

15 Walters v. C. R. I. & P. R. Co., 41 Iowa 71; Government St. R. Co. v. Haulon, 53 Ala. 70; Norfolk & R. R. Co. v. Ormsby, 27 Gratt. 455; Robinson v. Cone, 22 Vt. 213; Daley v. Norwich R. Co., 26 Conn. 591; N, Pa. R. Co., v. Mahoney, 57 Pa. St. 187; Smith v.. O'Conner, 48 Pa. St. 218; Bellefountain R. Co. v. Snyder, 18 Ohio St. 399; Railroad Co. v. Glodman, 15 Wal. 401; Birge v. Gordiner, 19 Conn. 507; Baltimore R. Co. v. State, 80 Md. 47; C. C. C. & I. R. Co. v. Mauson, 5 Cent. L. J. 413; Boland v. Missouri. R. Co., 36 Mo. 491; Ranch v. Lloyd, 31 Pa. St. 870.

16 16 Cent. Law Journal 273. Decided March 61883. If a parent neglect his duty and his child of tender years is injured by the negligence of another, the father's neglect will be imputed to the child, or, excuse the party whose negligence caused the injury, in an action by the child. See Stout v. Sioux City R. Co.. 11 Am. L. Reg. 226; s. c., 6 Abbott's National Di. gest, 322.

seems to us, that one who negligently inflicts on it an injury, can be heard to invoke the parents' crime to shield himself from liability for wrong. It seems repulsive to our sense of justice, that because the parent is negligent of the child, others may with impunity be equally negligent of its helplessness and indifferent to its necessities. The law may not compel active charity for the relief of the child, but it does shield him from positive wrong or neglect. Without inquiring, therefore, whether negligence can be imputed to the parents of the plaintiff, because they permitted him to go into a crowded street of a populous city, unattended, we do hold that if it were negligence, it can not be charged to the plaintiff or affect his right to recover in this case. 17

In the English case of Gardner v. Grace, where an infant three years old ran into the street and was injured by defendant, it was held that even if the plaintiff was guilty of negligence, that such would not stop the infant from recovering; for the doctrine of contributory negligence does not apply to an infant of tender age. 18 The doctrine now generally accepted is, that the care required of a child is only such as is to be expected from one of his maturity and discretion. If he exercises such care, he may recover for an injury caused by the negligence of another, although a person of full age and capacity, acting in like manner, might be chargeable with contributory negligence, which would be fatal to his right of action.19 And as to

17 1 Fost. & F. 359.

18 Lyneh v. Nurden. 1 Ad. & El. 29; Hestonville Pass. R. Co. v. Cornell, 7 Norr. 520; Hestonville Pass. .R. Co. v. Kelley, 17 Cent. L. J. 150; Kay v. Pennsylvania R. Co., 65 Pa. St. 269; O'Mara v. Hudson River R. Co., 38 N. Y. 449.

19 Robinson v. Cone, 22 Vt. 213; Philadelphia, etc. R. Co. v. Kelley, 31 Pa. St. 372; Philadelphia, etc. R. Co. v. Spearen, 47 Pa. St. 300; Oakland R. Co. v. Fielding, 48 Pa. St. 320; Northern Pennsylvania Ry. v. Mahoney, 57 Pa. St. 187; Kay v. Pennsylvania Ry. Co., 65 Pa. St. 269; s. c., 3 Am. Rep. 628; Bellefountain, etc. Ry. Co. v. Snyder, 18 Ohio (N. S.) 399; Daley v. Norwich Ry. Co., 26 Conn. 359; Norfolk, etc. Ry. Co. v. Ormsby, 27 Gratt. 455; St. Paul Ry. Co. v. Kuby, 8 Minn. 154; Cahil v. Eastman, 18 Minn. 324; Whirley v. Whiteman, 1 Head. 610; Boland v. Missouri Ry. Co., 36 Mo. 484; Government St. Ry. Co. v. Hanlon, 53 Ala. 70; Birge v. Gordiner, 19 Conn. 507; Neal v. Gillett, 23 Conn. 437; Bronson v. Southbury, 37 Conn. 199; Washington, etc. Ry. Co. v. Gladman, 15 Wall. 401; Sioux City, etc. Ry. Co. v. Stout, 17 Wall. 657; s. c., 2 Dill. 294; Rauch v. Lloyd, 31 Pa. St. 358; Smith v. O'Connor, 48 Pa. St. 218; Flower v. Pennsylvania Ry. Co., 69 Pa. St. 210; Pittsburg, etc.

whether or not an injured child exercised the care and discretion compatible with its age, and which might reasonably be expected of him, is a question within the province of the jury.20 A child of tender years can not be made responsible for contributory negligence,. yet without negligence on the part of the defendant, there can be no recovery. 21

By some courts, which impute the negli gence of the parent to the child, it has been said, that the negligence of the parents will depend in a great measure upon the parents"

R. Co. v. Caldwell, 74 Pa. St. 421; Crissey v. Heston-ville, etc. R. Co., 75 Pa. St. 83; Philadelphia R. Co. v. Long, 75 Pa. St. 257; Philadelphia City Pass. R. Co.. v. Hassard, 75 Pa. St. 367; State v. Baltimore, etc. R. Co. 24 Md. 84; Baltimore, etc. R. Co. v. State, 30 Md. 47; McMahon v. Northern Cent. R. Co., 39 Md. 438; : Baltimore City Pass. R. Co. v. McDonnell, 43 Md. 534;. Chicago, etc. R. Co. v. Dewey, 26 Ill. 255; Kerr v. Forgue, 54 Ill. 482; Chicago, etc. R. Co. v. Murray, 71 Ill. 601; Mick v. Lauder, 75 Ill. 93; Chicago, etc. R. Co. v. Becker, 76 Ill. 25, (reported again in 84 Ill. 483); Rockford, etc. R. Co. v. Delaney, 82 Ill. 198; O'Flaherty v. Union R. Co., 45 Mo. 70; Donaho v. Vulcan Iron Works, 7 Mo. App. 447; Schmidt v. Milwaukee, etc. R. Co., 23 Wis. 186; Walters v. C., R. I. & P. R. Co., 41 Iowa, 71 (reported also in 36 Iowa, 458); McMillan v. Burlington, etc. R. Co., 46 Iowa, 231; Brown v. E. & N. A. R. Co., 58 Me. 384; Daniels. v. Clegg, 28 Mich. 32; O'Mara v. Hudson River R. Co., 38 N. Y. 445; Reynolds v. New York Cent. R. Co., 58 N. Y. 284; Munn v. Reed, 4 Allen, 431; Lynch v. Smith, 104 Mass. 52, Lynch v. Nurdin, 1 Q. B. 29;. Gardner v. Grace, 1 F. & F. 359; Galveston, etc. R. Co. v. Moore, 16 Cent. L. J. 273.

20 Karr v. Parks, 40 Cal. 188; Schierhold v. N. B. & M. R. Co., 40 Cal. 447; Chicago v. Major, 18 Ill. 349;

P., Ft. W. & C. R. Co. v. Bumstead, 48 Ill. 221; Chicago, etc. R. Co. v. Gregory, 58 Ill. 226; Frick v. St. Louis, etc. R. Co., 6 Cent. L. J. 317; Cosgrove v. Og. den, 49 N. Y. 255; Hunt v. Salem, 121 Mass. 294; Mulligan v. Curtis, 100 Mass. 512. The fact of a person, not sui juris, being found in a place of danger, does not of itself, in law, establish negligence on the part of the parents, or of the proper custodian. Railroad Co. v. Stout, 17 Wall. 657; Maugam v. Brooklyn R. Co., 38 N. Y. 455; and it has been so held in regard to a child six years of age: Oldfield v. Harlem, R. Co., 14 N. Y. 310; Cosgrove v. Ogden, 49 N. Y. 255; to one two years of age: Boland v. Missouri R. Co., 36 Mo. 484; three years: Robinson v. Crone, 22 Vt. 213; a child of four: Chicago v. Major, 18 Ill. 349. Nor, as a matter of law, is it negligence in a child seven years old to sit upon the sidewalk of a public highway: Murley v. Roche, 130 Mass. 330. And the same in regard to children of nine: Sheridan v. Brooklyn R. Co., 36 N. Y. 39; and eight years of age: Drew v. Sixth Ave. R. Co., 26 N. Y. 49. But for a contrary holding as to negligence as a matter of law, see Hartfield v. Roper, 21 Wend. 615; Callahan v. Bean, 9 Allen, 401; Kreig v. Wells, 1 E. D. Smith 74; Chicago v. Starr, 42 Ill. 174.

21 Hestonville R. Co. v. Kelley, 17 Cent. L. J. 150;. Hestonville R. Co. v. Cornell, 7 Norr. 520. The incapacity of the child will create no liability, and its injuries will be its own misfortune. See, Railroad v. Spearin, 11 Wright, 304.



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

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