by the court except upon proof of fraud. But this contract is in most respects a peculiar one. It is made between a borrower and a lender at the moment when the want of the latter often puts him in the power of the former for a payment in the nature of a penalty, with little, if any, expectation on the part of the borrower, that the contingency upon which it is to become operative will ever happen. If not a mere cover for usury, it in effect concerns the amount of compensation to be paid to an officer of this court for professional services herein, by the adverse party as a substitute for his common law 'costs.' Such a contract is in some sense under the power of the court, and ought not to be enforced by it, unless it plainly appears to be reasonable and just." We are here introduced to a new kind of contract. It is a contract having obligatory force, not according to its terms, but according to the discretion of the court called upon to enforce it.

The things which must concur to constitute a valid contract, are: the assent of parties capable of contracting, expressed in plain terms, in relation to a subject-matter about which it is lawful to contract, and a sufficient consideration. The court found all these conditions fulfilled in the contract it was considering. Having reached the conclusion that the contract was valid, it would seem there was nothing left for the court but to render judgment for its enforcement. But instead of rendering judgment to enforce the contract made by the parties, a new contract was made for them by the court, upon which judgment was rendered. A contract with which such liberties may be taken, is not a contract at all. It is of the very essence of a contract, that it confers on one party the right to demand performance according to its terms, and on the other party, the duty of performance. A contract is defined to be an agreement enforceable by law. A contract not enforceable by law is void, and no court can enforce a void contract either in whole or in part.

The description given of the situation of the parties to such contracts, and the circumstances under which they are made, consti. tute, as we shall presently see, in the opinion of a good many courts, grounds for holding them void; but when it is conceded that such contracts are valid, the circumstances men

tioned confer no power on the court to change their obligation. The legal obligation of a contract is the right to have it enforced according to its terms. This obligation attaches to all contracts which are valid when made. The Constitution of the United States inhibits the States from passing laws impairing this this obligation. But this constitutional provision is of little worth, if the power denied by it to the States, may be exercised without a statute by the courts. Beyond question if the legislature of Oregon should enact a law declaring that only onefifth, or any sum less than the whole, of the fee stipulated for in such contracts could be recovered, any court holding such contracts valid, would be compelled to hold the law, as to contracts existing at the date of its enactment, unconstitutional and void, as impairing the obligation of contracts. Under the supreme authority of the Constitution of the United States the obligation of contracts is inviolable. It is not subject to invasion

from any quarter. Courts no more than legislatures can encroach upon it.

The law is in somethings somewhat flexible and elastic. But in the law of contracts there is no principle that will give the court power to divide a contract in the middle, and where the parties have agreed on a fixed compensation for a given service, declare the agreement to pay for the service valid, but disregard it in so far as it fixes the amount to be paid, and substitute in lieu thereof such compensation as it deems reasonable. And here an important inquiry suggests itself. If the attorney's fee stipulated for, is less than the services rendered are worth, will the court increase it? If not, why not? If the court take it upon itself to diminish the compensaion agreed upon by the parties, when it deems it excessive, why not increase it when it is found to be inadequate? Again, is the rule reciprocal? If a suit is brought on a contract containing such stipulation and the defendant has judgment, who pays his attorneys fees? If the court has the power to mould such contracts to meet the ends of justice, why not inject into them an implied obligation of the plaintiff to pay the defendant's attorneys fee where he succeeds in his defense? In Day v. Woodworth,3 the plaintiff

313 How. 873.

<contended that the jury should have been instructed to include in their verdict the plaintiff's counsel fees. In response to this contention, Mr. Justice Grier said there was no law to support it, and that "where such a rule of law exists allowing the jury to find costs de incremento in the shape of counsel fees, * they should be permitted to do the same for the defendant where he succeeds in his defense, otherwise the parties are not suffered to contend in an equal field."

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."

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 Belmont 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.

IMPUTABLE NEGLIGENCE.

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

3

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. 234; 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; Tauber 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. 108; East Saginaw R. Co. v. Bohn, 2

7

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 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 compliance with the conditions, on which his right is to arise, and this is entirely irrespective 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 required 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," in which the eminent jurist says, that "It may be urged, with some plausibility, that this doctrine 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

8

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.

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

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.11 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, 13 "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 altogether. 15. The case of the Galveston Railroad v. Moore furnishes a well reasoned de-cision 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.

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, 75 N. 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, 30 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. 370.

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. Hestonville, 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. 867; 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. Brook. lyn 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.

Original proceedings in habeas corpus, in chancery.

S. N. Wood and Waters & Ensminger, for petitioner; W. A. Johnston & S. P. Young, for respondent.

BREWER, J., delivered the opinion:

This is an application in habeas corpus. The facts are these: The petitioner is in the custody of the respondent, the sheriff of Chase county, under a warrant of commitment issued by the district court of that county. It appears that in the forepart of 1882 an information was filed against the petitioner charging him, under sec. 15 of the Crimes Act, with administering medicines, drugs, etc., to a woman with a quick child, with the intent to destroy such child. The case was tried at the May term, 1882, and the defendant found guilty, under sec. 44 of such act, of administering medicines, etc., with intent to procure abortion. The motion for a new trial was made and overruled. All this took place at the May term. Thereupon a motion in arrest of judgment was filed and continued to the December term. On the journals of the court of the December term, at its last day, appears an entry overruling the motion in arrest of judgment, and sentencing the defendant to pay a fine of $50 and costs. A bill of exceptions was duly signed and such judgment appealed to this court, and the judgment affirmed at the July session for 1883. Now it is claimed by petitioner that this entry of a judgment at the December term of the district court is wrong; that in fact no judgment was then

entered; that the entry of the journal is an interpolation and unauthorized, and that he has never been sentenced by any court. As a matter of fact, if parol testimony is competent to contradict the record, it can be shown that at the last day of the December term the motion in arrest of judgment was called for hearing. The parties were not ready and desired further time. The presiding judge of that court had some time before tendered his resignation, to take effect January 1, 1883, and he, at that time, stated to the 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 further disposition of the case should be heard before Judge Peters, the then judge at Topeka, on the third or fourth of January following, and that the disposition which he should then make of the motion and the case should be entered of record as a part of the proceedings of the last day of the December term. On January third or fourth the motion in arrest was in fact argued before Judge Peters at Topeka, and his decision there announced, overruling the motion and sentencing the defendant. The journal entry containing this ruling was not there and then signed by him, but was forwarded to him at his residence in Harvey county, and within a day or two thereafter signed by him and forwarded to the clerk of Chase county district court, and by him entered on the journal. Now, if parol testimony is competent to contradict the record, it will appear that the motion in arrest of judgment and the oral announcement of the motion and sentence was made by Judge Peters after his term of office had expired by resignation, and when he was in fact a private citizen and outside of the district. This, therefore, is the question presented, whether, in a habeas corpus case, the entry of a judgment in the district court entered in the ordinary way on the journals of that court, and in all things apparently regular, can be overthrown by parol testimony. Such entry was ordered and directed by one who had ceased to be a judge of that court, and while assuming to act outside of the district. The case has been argued very fully, authorities cited on both sides, and appeal made to some elementary and familiar rules of law. On the one hand, it is said that no magistrate, judicial or other has jurisdiction outside of the territory of which he is an officer, Morrell v. Ingle, 22 Kas. 32; Coms. of Marion County v. Barker, 25 Kas. 258; Phillips v. Thralls, 26 Kas. 780. And again that no private citizen may usurp the functions of a court and pronounce judgment and sentence against a party. On the other hand, it is insisted that the records of a court import absolute verity and cannot be overthrown by parol testimony. With some hesitation in view of the decisions already made by this court, I think the latter proposition is controlling. It may be remarked, in the first instance that no fraud or deception has been