apparently mandatory in terms,5 although some courts have found the case easier when their constitution said, "the right to trial by jury shall remain inviolate." If trial by jury may thus be waived, it would seem, a fortiori, that a defendant could waive the one-sided grand jury proceeding, which is not final anyway, for the prosecutor may nol. pros. a true bill or hold the case over for another grand jury if the bill is ignored. This result has been reached in a few cases. A plea of guilty, by the better view, is strictly not a waiver of trial by jury, for the jury function does not arise unless there is an issue to be tried." In like manner a grand jury proceeding is a mere formality where there is no question of the defendant's guilt. The finding of a true bill by grand jury, as a prerequisite to the court's jurisdiction, is a procedural difficulty which is surmounted by the Pennsylvania statute, allowing the accused to plead guilty to a formal accusation drawn up by the prosecutor. It may be noted in passing, however, that a commission of judges in New York, though recognizing the desirability of dispensing with indictment on plea of guilty, considered it impossible without an amendment to the constitutional provision that "no person shall be held to answer for a capital or otherwise infamous crime except on presentment or indictment by grand jury."

"10

The principal case is in harmony with the tendency, legislative and judicial, to diminish the importance of the grand jury, so that it is now a disappearing institution. In the United States, indictment by grand jury no longer exists as a privilege of the criminal defendant in at least twenty-four states," prosecutions being begun either by indictment or by information.12 In most of these a grand jury may be called by the district or circuit judge in his discretion, to investigate and present the names in such a case as general corruption. There must generally be a preliminary hearing of both sides by a trained magistrate, thus protecting the innocent from the danger of being held unwarrantably for trial, with more efficiency than under the cumbrous and irresponsible grand jury system. The defendant's historical rights are amply preserved in the trial by jury, the public character of which makes the prosecutor and witnesses strictly accountable. A few of these states still require indictment in capital cases. At present there is a widespread attack on

13

5 Belt v. United States, 4 D. C. App. 25; Moore v. State, 22 Tex. App. 117, 2 S. W. 634; State v. Cottrill, 31 W. Va. 162, 6 S. E. 428 (statute upheld by divided court); State v. Griggs, 34 W. Va. 78, 11 S. E. 740, following result in previous case. 6 Brewster v. People, 183 Ill. 143, 55 N. E. 640.

7 United States v. Martin, 50 Fed. 918.

8 Edwards v. State, 45 N. J. L. 419; Lavery v. Commonwealth, 101 Pa. St. 560. See McGinnis v. State, 9 Humphreys (Tenn.) 43.

9 West v. Gammon, 98 Fed. 426; Hollibaugh v. Hehn, 13 Wyo. 269, 79 Pac. 1044. 10 See 4 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, 914-17.

"No question of due process under the federal Constitution is involved. A state may do away with the grand jury as far as it sees fit. Hurtado v. California, 110 U. S. 516.

12 See 3 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, 566, naming Arizona, California, Colorado, Connecticut, Florida, Idaho, Indiana, Kansas, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, North Dakota, Oklahoma, South Dakota, Utah, Vermont, Washington, Wisconsin, and Wyoming. The constitutions of several other states give the legislature power to abolish the grand jury. Oregon has changed back to indictment.

13 See 7 HARV. L. REV. 189, 190-92; 8 ibid. 424.

14

the grand jury system where still required, but its antiquity promises it life for another generation.

REGULATION OF ATTORNEYS' FEES FOR THE PROSECUTION OF CLAIMS AGAINST THE UNITED STATES.—It is, of course, within the power of Congress to regulate the payment of claims against the United States and to fix the conditions upon which such payments may be made. Thus, Congress may forbid the assignment of a claim against the government,1 or any agreement to give a lien thereon.2 Moreover, statutes fixing the compensation of the attorneys employed by the claimant, and making criminal the receipt of a greater amount, have been held within the legislative power. But a recent case shows that there are certain constitutional restrictions on this power. An attorney acting under a contract for a 33% per cent contingent fee secured a judgment for his client in the Court of Claims, on account of property taken during the Civil War. Congress thereupon passed a special appropriation act, limiting the attorney's fee to 20 per cent. It was held that the attorney could recover his full fee from his client, the restriction being unconstitutional. Moyers v. Fahey, 43 Wash. L. Rep. 691.4

It is clear that the attorney's contract is not void as the assignment of a claim against the United States,5 since even an agreement to pay a certain percentage out of the amount recovered is not an assignment pro tanto, unless the attorney is expressly given a lien." Nor by the weight of authority is a contract for a contingent fee objectionable. Since, then, the contract was valid and binding when made, it is protected under the due process clause from arbitrary impairment. It is true that the Supreme Court, in Ball v. Halsell,10 held that a statute

14 See REPORt of Royal COMMISSION ON DELAY IN THE KING'S BENCH DIVISION, presented to Parliament February 10, 1914, recommending the abolition of the grand jury in England. Also similar recommendations by Mr. Taft to the New York Constitutional Convention, 1 Va. L. REG. (n. s.) 226.

1 Spofford v. Kirk, 97 U. S. 484. See Hager v. Swayne, 149 U. S. 242, 247; Ball v. Halsell, 161 U. S. 72.

2 See Nutt v. Knut, 200 U. S. 12, 20.

3 United States v. Fairchilds, Fed. Cas. No. 15,067, 1 Abb. 74; United States v. Marks, Fed. Cas. No. 15,721, 2 Abb. 531; United States v. Van Leuven, 62 Fed. 52 (pensions); Ball v. Halsell, 161 U. S. 72 (Indian depredations).

4 See RECENT CASES, this issue, p. 331.

5 Assignments of claims against the United States before the issuance of the warrant are void. U. S. COMP. STAT. 1913, § 6383.

Trist v. Child, 21 Wall. (U. S.) 441; Wright v. Tebbetts, 91 U. S. 252; Roberts v. Consaul, 24 A. C. (D. C.) 551; Wassell v. Armstrong, 35 Ark. 247. Contra, Jones v. Blacklidge, 9 Kan. 562.

I 20.

7 Nutt v. Knut, 200 U. S. 12. Contra, see Jones v. Rutherford, 26 A. C. (D. C.) 114,

8 Wylie v. Coxe, 15 How. (U. S.) 415; Taylor v. Bemiss, 110 U. S. 42; Bergen v. Frisbie, 125 Cal. 168, 57 Pac. 784; Matter of Hynes, 105 N. Y. 560, 12 N. E. 60. Contra, Ackert v. Barker, 131 Mass. 436.

"A vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference." COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., 517.

10 161 U. S. 72. The right to recover for Indian depredations is based on treaties with the Indians, by which it was agreed that the United States should indemnify those

establishing a court to try claims arising from Indian depredations and fixing the compensation of attorneys for prosecuting claims there invalidated a previous contract for a larger fee. But that decision is clearly distinguishable from the principal case, for Congress, in establishing a new tribunal in which the United States may be sued, has power to regulate the conditions under which attorneys may practice there. There is, in fact, no doubt that Congress could at any time abolish the Court of Claims, and so deprive attorneys of compensation promised them for prosecuting a claim there. But after the attorney has performed his contract and the Court of Claims has rendered judgment, it seems an unjust interference with his rights under the contract for Congress, after appropriating the money, to restrict the claimant in his payment of creditors.

Thus, the result of the principal case is wholly satisfactory. The court, however, based its decision on the broad ground that the legislature cannot interfere with liberty of contract, and neglected to consider the exceptions that must be made to such a sweeping rule. It is subinitted that Congress might nullify preëxisting unexecuted contracts by forbidding any attorney to practice in the Court of Claims unless he agreed not to demand more than a fixed fee, since the regulation of that court is entirely within the legislative power. Moreover, it would seem that the legislature might constitutionally declare that in future all contracts for an excessive contingent fee should be void. Such a statute would be a declaration of public policy and a justifiable exercise of the police power. Such a rule, as applied to claims against the government, would involve little more restraint on freedom of contract than the restrictions against assignments and liens, which are of unquestioned validity." Similar statutes fixing the compensation of pension attorneys have often been held constitutional.12 It must be remembered, however, that the pension cases are to a certain extent sui generis, since Congress, under its power to "raise and support an army,' ," 13 has full control over the pension laws and can in every way regulate the method of distribution.14 Indeed, it would seem that even executed contracts with pension attorneys might be nullified by the legislature, since the licensed pension attorney is, in a sense, the creature of Congress, and at all times subject to its regulation, to the extent that Congress considers necessary for the protection of the pensioners, who are wards of the government.

If the payment of the claim in the principal case could be regarded as a conditional gift, which might be recovered back if the condition were broken, it would seem unjust and inequitable to compel a forfeiture. But it is clear that the payment in such a case is not a mere gratuity, but the fulfillment of an obligation, since an implied contract to make

injured and get reimbursement out of the annuities of the Indians who were at fault. See McKinzie v. United States, 34 Ct. Cl. 278, 286.

11 See notes 1, 2, and 5, supra.

12 United States v. Fairchilds, Fed. Cas. No. 15,067; United States v. Marks, Fed. Cas. No. 15,721; Frisbie v. United States, 157 U. S. 160.

13 U. S. CONST., art. I, § 8.

14 See United States v. Fairchilds, Fed. Cas. No. 15,067; United States v. Hall, 98 U. S. 343, 353.

compensation arises under Article V, when property is taken for the use of the United States.15 Since the United States cannot be sued without its consent, the contract is not enforcible at law; but a moral obligation clearly exists. A conditional gift of money can only be recovered in quasi-contract; 16 and there can be no recovery in quasicontract if the money paid, though not legally due, was due ex aequo et bono." Accordingly, the enforcement of the contract cannot result in any loss to the claimant beyond the amount of the fee he agreed to pay.

RECENT CASES

FORCIBLE PRE

ASSAULT AND BATTERY-CRIMINAL RESPONSIBILITY VENTION OF WRONGFUL LEVY ON DEFENDANT'S PROPERTY. — The defendant, using no unnecessary force, resisted a constable who attempted to attach his goods as the property of another person. Held, that he is guilty of a criminal assault. State v. Selengut, 95 Atl. 503 (R. I.).

It is a general rule that a trespasser may be resisted with reasonable force. See I BISHOP, CRIMINAL LAW, 8 ed., § 861. A wrongful attachment is a trespass. Buck v. Colbach, 3 Wall. (U. S.) 334; McAllaster v. Bailey, 127 N. Y. 583, 28 N. E. 591. Therefore, on strict principle, it would seem justifiable to resist a wrongful attachment. Some authority supports this view. Commonwealth v. Kennard, 8 Pick. (Mass.) 133; Wentworth v. People, 4 Scammon (Ill.) 550; Lassiter v. State, 163 S. W. 710 (Tex.). Cf. Smith v. State, 105 Ala. 136, 17 So. 107. However, since the protection of property by personal force involves a breach of the peace, it is submitted that the rule permitting it can only be justified when the alternative offered by the legal remedies is seriously inadequate. Now, in a wrongful attachment a protection to the owner, not present in a private trespass, is afforded by the liability of the attaching officer on his bond. See 2 FREEMAN, EXECUTIONS, 3 ed., § 272. Furthermore, if private persons were permitted to resist wrongful attachments, it would give debtors an opportunity to resist rightful attachments until they had secreted or disposed of their goods, and would entirely defeat the purpose of mesne attachments. Hence it would seem that there should be no right to resist attachment by force, and the weight of authority supports this view. State v. Downer, 8 Vt. 424; Faris v. State, 3 Oh. St. 159; State v. Richardson, 38 N. H. 208; People v. Hall, 31 Hun (N. Y.) 404. It is true that an illegal arrest may everywhere be resisted. State v. Belk, 76 N. C. 10; Massie v. State, 27 Tex. App. 617, 11 S. W. 638. But such an arrest is an irreparable personal injury which cannot be adequately compensated in damages.

BANKS AND BANKING-NATIONAL BANKS COLLATERAL ATTACK ON ULTRA VIRES ACT-AUTHORITY TO PURCHASE STOCK IN BUILDING CORPORATION AS INCIDENTAL TO SECURING BANKING QUARTERS. A national bank

15 Brooke v. United States, 2 Ct. Cl. 180; Wixon v. United States, 14 Ct. Cl. 59. 16 Williamson v. Johnson, 62 Vt. 378, 20 Atl. 279. But if a chattel is given conditionally, a breach of condition is a forfeiture, and the donor may replevy the chattel. Halbert v. Halbert, 21 Mo. 277.

17 Farmer v. Arundel, 2 Wm. Bl. 824; Goddard v. Seymour, 30 Conn. 394. See Moses v. MacFerlan, 2 Burr. 1005, 1012. See KEENER, QUASI-CONTRACTS, 43.ff.

Cf. the rule concerning "natural obligations" in the Roman law. See 2 ROBY, ROMAN PRIVATE LAW, 81.

bought shares of stock in a building corporation as part of a transaction in which it leased banking quarters in the building to be erected. The promoter of the corporation contracted to buy from the bank at a later date the stock acquired by it, and deposited security for his performance. When suit was brought on his promise, the defendant set up that the acts of the bank were ultra vires and the transaction void. The court held that the transaction was intra vires and intimated that the authority of the bank was not subject to attack in this manner. Fourth National Bank of Nashville v. Stahlman, 178 S. W. 942 (Tenn.).

For a discussion of the principles involved, see NOTES, p. 320.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW CLAIMS AGAINST UNITED STATES STATUTE LIMITING ATTORNEYS' FEES. The defendant employed the plaintiff to prosecute a claim against the United States for land taken during the Civil War, and contracted to pay him an amount equal to 333 per cent of the sum recovered. The Court of Claims having found for the claimant, Congress passed a special appropriation act, which provided that not more than 20 per cent of the amount thus appropriated should be paid for attorneys' services. Accordingly, 20 per cent was paid to the plaintiff, who now sues his client for the balance. Held, that he may recover, the restriction being unconstitutional. Moyers v. Fahey, 43 Wash. L. Rep. 691 (Sup. Ct., D. C.).

For a discussion of the question involved in this decision, see NOTES, p. 328.

DIVORCE GROUNDS DESERTION - DEED OF SEPARATION. When a husband was about to desert his wife, they executed a deed of separation, in which it was mutually agreed that they should live apart, and he agreed to pay her a weekly allowance. About a year later he ceased paying and left for Australia with another woman. Held, that the wife is entitled to a divorce on the grounds of adultery and desertion. Smith v. Smith, 60 Sol. J. 25 (P. D.).

American courts regard covenants to live apart as against public policy, and therefore unenforcible. Aspinwall v. Aspinwall, 49 N. J. Eq. 302; Smith v. Knowles, 2 Grant Cas. (Pa.) 413. Thus, though such covenants are evidence of consent to separation, the consent may be revoked, causing further living apart to be desertion. Schanck v. Schanck, 33 N. J. Eq. 363. See Hankinson v. Hankinson, 33 N. J. Eq. 66, 70. But in England such covenants are now specifically enforced by injunction against proceedings for the restitution of conjugal rights. Hunt v. Hunt, 4 DeG. F. & J. 221; Besant v. Wood, 12 Ch. Div. 605. See R. J. Peaslee, "Separation Agreements Under the English Law," 15 HARV. L. REV. 638, 653, 654. And under the Judicature Act they may be pleaded by way of defense to such suits. Marshall v. Marshall, 5 P. D. 19. Logically they should also be a defense to actions for divorce on the ground of desertion, since the consent cannot be revoked when embodied in a valid contract. Queen v. Leresche, [1891] 2 Q. B. 418; Crabb v. Crabb, 1 P. & D. 601. However, separation deeds will, upon equitable principles, be held invalid, if they have been procured by fraud or coercion, or if they are unfair to the wife. Dagg v. Dagg & Speake, 7 P. D. 17; Lambert v. Lambert, 2 Bro. P. C. 18; see Crabb v. Crabb, 1 P. & D. 601, 604. Of course a separation deed giving permission to live apart does not include permission to commit adultery. Morrall v. Morrall, 6 P. D. 98. But in England proof of adultery by the husband entitles the wife only to a judicial separation: in order to obtain a decree of dissolution she must also prove either cruelty or desertion. Fitzgerald v. Fitzgerald, 1 P. & D. 694; Balcombe v. Balcombe, [1908] P. D. 176, 177, 178.

GROUNDS - DESERTION: REFUSAL TO LIVE WITH HUSBAND'S - The plaintiff petitioned for a divorce, on the ground of his wife's