tural advice to this effect: "Agree with thine adversary quickly while you are in the way with him." My notion is that more than likely in an hour or so of my talk at the bar, the court would find out that I had a poor case, that, in that time, I would make its poverty so conspicuously naked that the court could not help seeing it and blushing at it.

One all-sufficient

Why argue a case? reason is that men get wisdom by discourse with each other. Another is, that the court likes to hear a good argument. It is restful to the mind,-though it might be said that a poor argument is often restful too, but in another way, and not a winning one either. Another reason for an oral argument is that it is the practice of some appellate courts at the close of a day's hearing, or presently, to take a tentative vote on cases that have been orally argued. This vote is tentative, remember. It binds no one. No judge is entitled to a fixed opinion or pride of opinion based

on mere oral argument. This, because the cold printed record may tell a different story. But, after all, a ball may be curved so at the pitch of it that it reaches a given point. So the human mind may get such a bent or twist through its first impression that those impressions last to the end. This tentative vote, peradventure, may be the decisive vote. Your oral argument, then, may easily become a factor in winning a case on appeal.

Above all things should a young lawyer with a good case argue it. A wholesome judge cannot help taking an interest in a young man. He sees in his effort a chapter in the earlier efforts of his own life. If he is a little confused, it will be pardoned to him. If he is enthusiastic, ten to one it will warm the cockles of the heart of an old judge, and a glow of satisfaction will spread over his weather-beaten face. If he is meek, the court, it may be, will apply to him automatically the doctrine that the meek should inherit the earth. The truth is that human nature sits on the bench personified in the judge, and that

the lawyer who is in some danger in an oral argument in an appellate court is the strong, self-reliant, seasoned veteran whose tone and poise and air show power and self-reliance,-show that he can take care of himself without the aid of any one, --and show, also, that his ingenuity is such that "he can distinguish and divide a hair twixt north and northwest side." Must not (I put it squarely), must not a court lean a little back during the argument of such a master in order to preserve a proper equilibrium in the scale of justice? Who knows?

Counsel not infrequently seem to act on the notion that the court knows beforehand all about their case. That is a rank heresy, a gross superstition! A court of review is too busy on assignments made in cases submitted, to send for the record as soon as it is filed, and devote time, otherwise mortgaged away in assigned duty, to read

ing transcripts, abstracts and briefs in cases

on the general docket and not yet argued or submitted. Therefore, when you arise. to state your case, go on the theory that the court knows not a whit about it, and never heard of it until the chief justice called it on the docket for hearing.

Another thing. Avoid reading your statement if long and complicated. Most Besides, you men read indifferently well.

can rest, with some degree of assurance on the proposition that most judges on an appellate bench can read for themselves. Stand at the counsel table and look the court in the eye.

If you are timid at the start take courage from the fact that, if you are full of your case, that fullness of knowledge is bound to come forth as you go on. If you have real complaints to make of the rulings below you will soon tell the upper court your grievances. you have propositions that answer your opponent's positions and are full of your case, you will soon make the court see what those propositions are.

If

There are some superstitions connected with appellate practice, There is a super

But

stition that sometimes appellate courts go to sleep during an oral argument. do not let this disconcert you or deter you fron your argument. It is a mere fanciful pleasantry. The court does not sleep. If a judge settles back in his chair and closes his eyes he is not asleep. He is but indulging in a spell of philosophical introspection. Furthermore, if the countenance of the good judge whose eyes are closed assumes a placid expression of benign and settled repose, he is still not asleep in a vulgar sense. What you see is but the outward expression of the inward judicial grace of calmness.

NOTES OF IMPORTANT DECISIONS.

CARRIERS-PLEADING ASSAULT BY FEL LOW PASSENGERS.-The recent case of Culberson v. Empire Coal Co. (Ala.), 47 So. 237, relates to a matter of pleading in the case of assault by one fellow passenger upon another in conjunction with the consequent negligent failure by the carrier's servants to protect the passenger thus assaulted. The point in controversy in the principal case to which reference is here made, is as to the necessity of alleging that the assault in such case was not provoked or was not in self defense. In holding that such an allegation was unnecessary, the court said: "It is true that a passenger cannot hold a carrier responsible for injuries by a servant or fellow passenger, if said injury was the result of his own wrong or misconduct. The law is intended to protect the innocent. If the act of the assailant be lawful, whether by a servant of the carrier or another, the carrier would not be liable. A carrier is not liable for an assault made upon a passenger in self-defense. Ry. Neg. of Imposed Duties, p. 371, § 114; Hutchison on Carriers, vol. 2, § 980; Lake Erie R. R. v. Arnold, 26 Ind. App. 190, 59 N. E. 394; Scott v. Central Park R. R., 3 Hun. 414, 6 N. Y. Supp. 382; N. O. & N. E. R. R. v. Jopes, 142 U. S. 18, 12 Sup. Ct. 109, 35 L. Ed. 919. But the fact that the assault was committed in self-defense and was brought on by the misconduct of the plaintiff is defensive matter, and the complaint does not have to allege the fact that the assault was not in self-defense or that it was unlawfully made. The complaint is sufficient if it avers an assault. Code 1896, § 3352, form 18. Lake Erie

v. Arnold, supra, decided by the Indiana Court of Appeals, holds a contrary doctrine and is not in conformity with the weight of authority and our own system of pleading. The opinion treats the plaintiff's conduct as contributory negligence, and holds that the plaintiff should aver his freedom from contributory negligence. Clearly contributory negligence is, under our system of pleading, defensive matter, the nonexistence of which need not be averred in the complaint.

WHAT CRITERION FIXES THE AMOUNT IN CONTROVERSY IN A GARNISHMENT PROCEEDING?

The question is one of construction; it will always arise under some statutory provision giving an appellate court jurisdiction where the amount in controversy is equal to or more than a sum named. Frequently the perplexity must intrude itself upon the troubles of the commercial lawyer. Does an appeal lie? Shall the amount of the original judgment, the amount found to be in the hands of the garnishee, the garnishee's answer, or some other standard, fix the jurisdictional sum? To what source of information must we go to find out what such sum is?

For the reason that the bother is generally raised in the appellate court by motion to dismiss for want of jurisdiction, and the action of the court on such motion is not always nor often, it is believed, voiced in a written opinion, the question will be found passed upon in but few of our reported cases. The cases where the question has been raised say no more than that "It is thus or so," they treat the problem with no respect, touch but lightly upon its surface, and give you not the why or the wherefore of their yea or nay.

The status of the question being as stated, if it be a question, then invitation beckons reason come, make analysis and give conclusion. It is the purpose of this paper to show that it is a question, a novel question, to attempt analysis and give conclusion. 1:

The difficulty may present itself under different lights. It may the better be discussed after a statement of some of these possible phases of case, and with this idea in view they are stated as follows: (A) The garnishee has not answered. (B) The garnishee has answered acknowledging in

an

debtedness to the defendant in a sum less than the jurisdiction of the court will attach to. (C.) The garnishee has swered acknowledging indebtedness to the defendant in a sum greater than the juris

diction of the court will attach to.

In general practice the rule is that the principal sum sued for or the amount claimed by appropriate allegations in plaintiff's pleading as due him from the defendant, is the amount in controversy. The sense of this rule reaches and must apply itself to a garnishment proceeding. In a garnishment proceeding, in best sense and reason, the amount in controversy must be that sum set forth and claimed in plaintiff's affidavit and application for the writ to be due and owing him by the defendant. Such a rule avoids absurdities, inconsistencies and injustice, thus:

I. A court has and must have a potential jurisdiction, a something to which, in point of mind, jurisdiction will attach upon the institution of a suit. In the conception of a law suit there must be something to furnish itself as the basis for jurisdiction over subject matter, and such matter must have existence in pleading, and so much, in fact, when the same is instituted, else from the beginning there is no jurisdiction. To hold the contrary is to hold that there exists such a concept as a suspended jurisJurisdiction must obtain ab ini

diction.

tio. To find a point for rule such a truism may stand upon in a garnishment proceeding we must, of course, go to the beginning, and this beginning is plaintiff's affidavit and application for the writ-here we find the amount in controversy and rest To wait for the upon simplicity of rule. filing of the garnishee's answer or the finding of funds in his hands is to hang jurisdiction mid-air until the happening of these

eventualities. be considered.

This is an absurdity not to The garnishee might not answer or nothing be found in his possession.

2. The affidavit or writ might be quashed where no answer has been filed by the garnishee or nothing found in his hands. In such a case, unless plaintiff's application and affidavit furnish the basis for calculation, there would be no amount in controversy to give appellate jurisdiction, and the right of revision by a higher court

would be denied for want of controversial figures. Such an absurd result cannot be countenanced.

3. If the garnishee's answer or the amount in his hands is to fix the jurisdictional sum, and such sum is found to be less than the jurisdiction of the court will attach to, immediately then the jurisdiction would abate, the court could render no judgment against the garnishee. To avoid such a situation as this we must look to plaintiff's affidavit and application.

4. Again, if the garnishee's answer or the amount in his hands is to fix the jurisdictional sum and such sum is found to be

greater than the jurisdiction of the court will attach to, whence goes jurisdiction? The suit would abate. Though the garnishee had funds on hand belonging to the defendant amply sufficient to meet the demands of plaintiff, no judgment could be rendered against him. We again become dependent upon plaintiff's application and affidavit for jurisdictional figures.

5. If the amount stated in plaintiff's application and affidavit as due and owing him by defendant be not sufficient to entitle him to an appeal in the garnishment proceeding, but the amount found in the hands of the garnishee is sufficient for such purpose, will the plaintiff have an appeal here? It cannot be so; the amount plaintiff is seeking satisfaction of, as shown in his affidavit and application, must control his appellate rights.

6. In all three of the situations set forth and identified as A, B, and C above, the

court would be powerless to render a judgment in any sum; it would be in the power of the garnishee, a person most probably in sympathy with the defendant, to defeat the ends of the garnishment proceeding by not answering, or by answering that he had a less or a greater sum than the jurisdiction of the court would attach to. Are such situations consonant with the purpose of this procedure? No.

There is much of reason why plaintiff's affidavit and application should be looked to for the amount in controversy. Is there any reason why the garnishee's answer or the amount found in his possession should be looked to to give life to the court's dormant powers? None can be thought of, unless a play upon words furnishes reason. A punster might say, in a case where the garnishee holds an agreed sum, concerning which there are conflicting claims of ownership, their controversy is over so much, so that is the amount in controversy, and so end the question to his satisfaction. However, this answer does not end the inquiry in reason. The fact that any sum is in the hands of the garnishee and the ownership of it is disputed is only an incident of the procedure. In loose thought and in literal sense there is a dispute over a sum in hand; however, we must not be blinded by figures or rest satisfied with illusion. reading of a statute we must not adopt an interpretation which will lead to injustice, inconsistencies or absurdities, unless the language of the act clearly expresses such a foolish intent; we must adopt such interpretation as will give effect to the real sensible intent of the law-making power, and this, though such interpretation contrary to the literal sense of the terms used. This is a proposition requiring no citation of authorities. The rule contended for meets the proposition laid down.

In the

be

The rule established must be one of general practice. Every conceivable state of case where a value might be involved is not to have a rule unto itself as to what constitutes in itself the amount in controversy. Upon what ground, in reason and good

sense, can such a rule be better established than upon plaintiff's application and affidavit? To have it so fixed is not inconsistent with the principle that the garnishment proceeding is ancillary to the main suit; it is not to grant such dignity to the application. and affidavit as to concede it the starting of a new suit. The dependence of the application and affidavit upon the main suit are recognized therein by a recital of its terms, and, in the fact, that unless these terms are correctly stated the proceeding may be quashed. The affidavit and application will show any credit to which the original judgment is entitled, it will show the sum of which satisfaction is sought; and the very facts that the procedure is remedial in its nature, is ancillary to and a part of the original suit, require that we look to such showing of the original suit in determining the amount in controversy. this way no reference need be had to extraneous source for jurisdictional figures, and the garnishment proceeding is so made in itself a whole and connected story.

In

(1) In line with and sustaining the rule as contended for: Mayo v. Hansen, 94 Wis. 610, 69 N. W. 344, 36 L. R. A. 561, 59 Am. St. Rep. 919; Pace v. Drug Co., 2 I. T. 218, 48 S. W. 1061; Hutmacher v. Brewing Assn., 198 Ill. 613, 64 N. E. 1092; Home Ins. Co. v. Kirk, 23 Ill. App. 19; Nesbitt v. Dickover, 22 Ill. App. 140; Haines v. O'Conner, 5 Ill. App. 213; Carroll v. Wallace (La.), McGloin, 316; Handlin v. Burnett, McGloin, 244; Lehman v. Dreyfus, 2 McGloin, 192; Buisson v. Staats, 9 La. Ann. 236; Kelly v. Gibbs, 84 Tex. 144. Contra: Payne v. Chicago Ry., 170 Ill. 607, 48 N. E. 1053; Flask v. Schwabacker, 32 La. Ann. 356; McDonough v. Nugent, La. Ann. 28; Fertron v. Comean, 28 La. Ann. 633; Bridgeford v. Keenehan, 8 Ky. Law Rep. 268; Ashley v. Monarch, 8 Ky. Law Rep. 265.