to commence in futuro, is invalid, being an agreement which by its terms is not to be performed within one year from the making thereof. The New York court says:

The plaintiff, not being a party to the lease, assumed no legal obligation to pay rent for the term, as a lease for more than one year, not in writing was void. 2 Rev. St. 135, §§ 6, 8. The agreement between the parties, and under which the plaintiff entered into joint occupancy with the defendant, being void, gave to the plaintiff no right, and imposed upon the defendant no obligation, to permit him to go into or remain in possession of any portion of the house, and unless he became a yearly tenant his liability was for use and occupation for the time only which he occupied. Thomas v. Nelson, 69 N. Y. 118. The mere fact that a person goes into possession under a lease, void, because for a longer term than one year, does not create a yearly tenancy. If he remains in possession with the consent of the landlord for more than one year, under circumstances permitting the inference of his tenancy from year to year, the latter could treat him as such, and the tenant could not relieve himself from liability for rent up to the end of the current year; and the terms of the lease, void as to duration of term, would control in respect to the rent. Coudert v. Cohn, 118 N. Y.-, ante, 298. The parol agreement for five years was not effectual to create a tenancy for one year. Nor did the mere fact that the plaintiff went into possession have that effect. He remained in occupation a part of one year only, and the creation of a tenancy for a year was dependent upon something further. While it is not required that a new contract be made in express terms, there must be something from which it may be inferred,-something which tends to show that it is within the intention of the parties. The payment and receipt of an installment or aliquot part of the annual rent is evidence of such understanding, and goes in support of a yearly tenancy, and, without explanation to the contrary, it is controlling evidence for that purpose. Cox y. Bent, 5 Bing. 185; Bishop v. Howard, 2 Barn. & C. 100; Braythwayte v. Hitchcock, 10 Mess. & W. 494; Mann v. Lovejoy, Ryan & M. 355; Thomas v. Packer, 1 Hurl. & N. 672; Doe v. Crago, 6 C. B. 90.

While there may appear to have been some confusion in the cases in this State upon the subject, this doctrine has been more recently recognized. Reeder v. Sayre, 70 N. Y. 184; Laughran v. Smith, 75 N. Y. 209. In the cases last cited the tenants had been in possession more than a year when the question arose, but having gone into occupancy under an invalid lease, their yearly tenancy was held dependant upon a new contract, which might be implied from the payment and acceptance of rent, and, when once created, could be terminated by neither party, without the consent of the other, only at the end of a year. The contention, therefore, that by force of the original agreement between the parties, aided by the fact that the plaintiff went into the possession with the consent of the defendant, is not alone sufficient to support an inference of the new contract requisite to create a yearly tenancy. The plaintiff paid no rent, nor while he was in possession was any request of or promise by him made to pay any. He simply went in under the original void agreement, and left within the year. There was no evidence to require the conclusion of the trial court that the plaintiff had assumed any relation to the premises which charged him with liability, other than for use and occupation, during the time he

remained in possession. The defendant's counsel, to support his proposition that the entry by the plaintiff with the consent of the defendant made him a yearly tenant, cites Craske v. Publishing Co., 17 Hun, 319, where it was remarked that a parol lease for a longer term than one year "operated so as to create a tenancy from year to year." It that was intended by the learned justice as a suggestion that such a void lease operated as a demise for one year, it is not in harmony with the view of the court in Laughran v. Smith, supra. That remark in the Craske Case was not essential to the determination there made, as rent was in fact paid for a portion of the term; nor can it be assumed that it was intended to have the import sought to be given to it. It must be assumed, upon authority and reason, that a parol lease for more than one year is ineffectual to vest any term whatever in the lessee named, and that when he goes into possession under it, with the consent of the lessor, without any further agreement, he is a tenant at will merely, subject to liability to pay at the rate of the stipulated rent as for use and occupation. Barlow v. Wainwright, 22 Vt. 88. This may be converted into the yearly tenancy by a new contract, which may be implied from circumstances, when they permit it.

In the Minnesota case the court says:

The agreement upon which this action is prosecuted is clearly within the language of § 6. By its terms the agreement was not to be performed within one year from its making. There is no reason why that section should not be deemed applicable to such a case as this, unless it is to be considered that the exception in § 10, and the implied exception in § 12, of leases "for a term not exceeding one year," or for a period not longer than one year are effectual to exclude from the operation of § 6, leases for a term of one year, to commence in futuro. The reasons which led to the enactment of that part of § 6, above referred to, are as applicable to parol agreements leasing land, not to be performed within one year, as in respect to any other kind of a contract. The result likely to follow from allowing such a contract, the performance of which is to be long postponed, to rest in parol, without any written evidence showing the terms of the agreement, are of the same nature, and just as likely to occur, as in the case of any other contract. If a merely oral lease may be effectually made for a year to commence in futuro, it matters not how long the commencement of the term may be postponed. If such a case is not within the provision of § 6, then a lease may be thus made for a term to commence many years subsequent to the agreement. Such a case is so clearly within the plain, explicit language of § 6, and would so obviously involve the very evils to avoid which has been the well-undertsood purpose of this clause of the statute of frauds, that it should be construed as applicable, unless the other sections of the law very clearly manifest the intention to withdraw or exclude such cases from its operation. Such an intention is not manifest. Full effect may be given to the excepted cases in § 10, and to cases within the implied exception in § 12, consistently with the applicability of § 6 to parol leases for a term not to be completed within one year. "Leases for a term not exceeding one year," or for a period not longer than one year may be made, if the term is to commence at once, and such a contract would not come within the terms of the statute as to agreements not to be performed within one year. We see no sufficient reason, either from the terms or arrangement of the statute, for excluding such cases as that be

fore us from the operation of § 6. In this conclusion we are supported by the following authorities: Olt v. Lohnas, 19 Ill. 576; Wheeler v. Frankenthal, 78 Ill. 124; Wolf v. Dozer, 22 Kan. 436; Briar v. Robertson, 19 Mo. App. 66; Parker's Adm'r v. Hollis, 50 Ala. 411; Atwood v. Norton, 31 Ga. 507; White v. Holland, 17 Or. 3, 3 Pac. Rep. 573. See, also, Roberts v. Tennell, 3 T. B. Mon. 247.

The decisions upon the English statute of frauds (29 Car. II. ch. 3), have but little bearing upon the construction of our statute, for the reason that by that statute parol leases for a term not exceeding three years from the making thereof were authorized, and of course the provision in § 4, as to agreements not to be performed within one year, could not be applicable to such cases. The same is true as to the statute of Indiana, in which State parol leases like that under consideration are held valid. In Young v. Dake, 5 N. Y. 463, it was held, overruling Croswell v. Crane, 7 Barb. 191, that such a lease was valid. The decision, however, was placed upon considerations which cannot be regarded under our statute. One of these considerations was the fact that in the revision of the statute the legislature eliminated from the clause of the statute of frauds, excepting leases for a term not exceeding one year, the qualifying words, "from the making thereof," which was regarded as disclosing an intention to allow such a term to commence in futuro. Again, it was considered that the statutory provision as to contracts which by their terms were not to be performed within one year was not applicable to contracts relating to leases of or interests in real estate, for the reason that the former provision was embraced in title 2 of the statute, entitled "Of fraudulent conveyances and contracts, relative to goods, chattels, and things in action," while the provisions in which parol leases of real estate were authorized are found in title 1, relating to "Fraudulent conveyances and contracts relative to lands." This reason for the decision in Young v. Dake is not available under our statute since the Revision of 1866, in which all of the provisions under consideration are embraced in one title, denominated "Statute of Frauds." In Michigan and Wisconsin the statutes in this particular have been arranged and entitled as in New York, and in those States Young v. Dake has been followed, or cited with approval.

CONSTITUTIONAL LAW-PEDDLER'S LICENSE -INTERSTATE COMMERCE. The Supreme Court of Georgia, in Wrought Iron Range Co. v. Johnson, 11 S. E. Rep. 233, yields an apparently grudging assent to the decisions of the United States Supreme Court on the subject of the constitutionality of State license laws, as interfering with interstate commerce. The Georgia court holds that one whose vocation is to go from place to place with a sample stove carried upon a wagon, exhibit the sample, and procure orders, which his employer afterwards fills by delivering through other agents the stoves so ordered, is a peddler, within the meaning of the Code of Georgia. But, though a peddler, if he is a citizen and resident of Virginia, and the

orders he solicits and procures are for stoves belonging to a Missouri corporation, which the latter holds in Missouri, and keeps there until they are thus ordered, he is protected by the constitution of the United States, as lately construed by the supreme court, against the provisions of the Code requiring a license to peddle, and declaring a forfeiture for not procuring such license. Bleckley, C. J., who delivered the opinion, evidently does not like the medicine he feels compelled to take. He says:

The next question relates to the invalidity of the execution as against Lee, the person who actually itinerated, and exhibited a sample stove, for the purpose of obtaining orders in behalf of the corporation for stoves manufactured in the State of Missouri, and to be forwarded from thence to this State in fllling orders so obtained. Lee is a citizen and resident of Virginia, and plies his vocation in Georgia to obtain orders for goods manufactured in Missouri, and not brought within this State until after ordered through him by purchasers, or those desiring to purchase. As he carries his sample stove from place to place upon a wagon drawn by mules, and exhibits the same as a means of trading, or inducing others to trade, he is doubtless a peddler, within the true sense and meaning of the Code. Section 1631 reads as follows: "Every peddler or itinerant trader, by sample or otherwise, must apply to the ordinary of each county where he may desire to trade for a license, which shall be granted to him on the terms said ordinary have or may impose. They are authorized to impose such tax as they may deem advisable, to be used for county purposes. The license extends only to the limits of the county." Section 1635 requires a license for every wagon or other vehicle employed or used in vending such goods, wares, or merchandise. Section 533 is as follows: "If any person, except a disabled soldier of this State, peddles, without first obtaining such license, in counties where the ordinaries take no action regulating peddling, he forfeits to the county one hundred dollars for the first act of peddling, and for each month thereafter twenty-five dollars more." We should consider these provisions decisive of the case as to Lee, could they be held constitutional in their application to him, and the business in which he is engaged. But this cannot be held consistently with the decisions of the Supreme Court of the United States in Robbing v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. Rep. 592, and Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. Rep. 1. These cases rule that statutes of Tennessee and Texas, not more obnoxious than our own to the interstate commerce clause of the constitution of the United States, are void, for their conflict with that constitution, in so far as they extend to soliciting orders, and making sales, by and for non-residents of the State within which the business required to be licensed is transacted. After full examination, we can have no doubt that these decisions apply to the present case, and control it. This being so, the matter admits of no further discussion at our hands. After the State has yielded to the federal army, it can very well afford to yield to the federal judiciary. Our sister States, Alabama and Louisiana have done so. State v. Agee, 83 Ala. 110 3 South. Rep. 856; Hardward Co. v McGuire, 39 La. Ann. 848, 2 South. Rep. 592. The doctrine of co-equality and co-ordination between th

Supreme Court of Georgia and the Supreme Court of the United States, so vigorously announced by Benning, J., in Padelford v. Savannah, 14 Ga. 439, regarded now from a practical stand-point, seems visionary. Its application to this or any like case would be a jarring discord in the harmony of the law. Moreover, any attempt to apply it effectively would be no less vain than discordant. When we know with certainty that a question arising under the constitution of the United States has been definitely decided by the supreme court of that government, it is our duty to accept the decision, for the time being, as correct, whether it coincides with our own opinion or not. Any failure of due subordination on our own part would be a breach, rather than the administration, of law.

The distinction between this case and that of Hynes v. Briggs, 41 Fed. Rep. 468, deeided by United States Circuit Judge Caldwell, should be noted. In the latter case the peddler was engaged in selling ranges previously shipped into the State and stored, and the court, while recognizing the general doctrine, as enunciated in the Georgia case, held that when goods are sent from one State to another for sale they become a part of the general property of the State into which they introduced, and amenable to its laws, and one selling cannot avoid the payment of a license or tax upon constitutional grounds. The recent case of Commonwealth v. Gardner, 19 Atl. Rep. 550, decided by the Supreme Court of Pennsylvania, should be studied in this connection. It was there held that the application of a statute, prohibiting "peddling," to citizens of another State, employed on a salary by a manufacturing company located in another State, to sell small articles from house to house, is not an interference with interstate commerce.

ATTORNEY AND CLIENT ERRONEOUS ADVICE.—A case of interest to practitioners, involving the liability of an attorney for erroneous advice given to the client, is Citizens' Loan, Fund & Sav. Association v. Friedley, 23 N. E. Rep. 1075, decided by the Supreme Court of Indiana. It appears that before the Supreme Court of Indiana had decided that a mortgage executed by husband and wife on land held by them as tenants by entireties is void as to both of them, an attorney advised his client that such a mortgage was good. It was held not such a mistake as would render the attorney responsible. Mitchell, C. J., says:

It is insisted that the complaint shows that the association sustained loss in consequence of the ignorance, carelessness, or unskillfulness of its attorney, and that the latter, with his sureties, must therefore respond to

it in damages for the amount lost. No neglect or want of skill appears, except that the attorney was mistaken as to the law applicable to the state of the title of the borrower, and its availability as a security for the loan. Attorneys are very properly held to the same rule of liability for want of professional skill and diligence in practice, and for erroneous or negligent advice to those who employ them, as are physician and surgeons, and other persons who hold themselves out to the world as professing skill and qualification in their respective trades or professions. Waugh v. Shunk, 20 Pa. St. 130. The practice of law is not merely an art. It is a science which demands from all who engage in it, without detriment to the public, special qualifications, which can only be attained by careful preliminary study and training, and by constant and unremitting investigation and research. But, as the law is not an exact science there is no attainable degree of skill or excellence at which all differences of opinion or doubts in respect to questions of law are removed from the minds of lawyers and judges. Absolute certainty is not always possible. "That part of the profession," said Lord MANSFIELD, in Pitt. v. Yalden, 4 Burrows, 2060, "which is carried on by attorneys, is liberal and reputable, as well as useful to the public, when they conduct themselves with honor and integrity; and they ought to be protected where they act to the best of their skill and knowlodge. But every man is liable to error; and I should be very sorry that it should be taken for granted that an attorney is answerable for every error or mistake, and to be punished for it by being charged with the debt which he has been employed to recover for his client." Watson v. Muirhead, 57 Pa. St. 161; Mortgage Co. v. Henderson, 111 Ind. 24, 34, 12 N. E. Rep. 88. An attorney who undertakes the management of business committed to his charge thereby impliedly represents that he possesses the skill, and that he will exhibit the diligence, ordinarily possessed and employed by well-informed members of his profession in the conduct of business such as he has undertaken. He will be liable if his client's interests suffer on account of his failure to understand and apply those rules and principles of law that are well established and clearly defined in the elementary books, or which have been declared in adjudged cases that have been reported, and published a sufficient length of time to have become known to those who exercise reasonable diligence in keeping pace with the literature of the profession. Hillegass v. Bender, 78 Ind. 225, and cases cited; Pennington v. Yell, 11 Ark. 212; Goodman v. Walker. 30 Ala. 482; Weeks, Attys, §§ 284-289; Fenaille v. Coudert, 44 N. J. Law, 286; Gambert v. Hart, 44 Cal. 553. Thus, it has been said: "An attorney is liable for the consequences of his ignorance or non-observance of the rules of practice of the court he practices in,-for the want of care in the preparation of a cause for trial; while, on the other hand, he is not answerable for an error in judgment upon points of new occurrance, or of nice or doubtful construction." Chit. Cont. 482; Godefroy v. Dalton, 6 Bing. 460; Dearborn v. Dearborn, 15 Mass. 316. It is his own fault, however, if he understakes without knowing what he needs only to use dilligence to find out, or applies less than the occasion requires. A lawyer is without excuse who is ignorant of the odinary settled rules of pleading and practice, and of the statutes and published decisions in his own State; but he is not to be charged with negligence when he accepts as a correct exposition of the law a decision of the Supreme Court of his own State; nor can he be held liable for a mistake in reference to a matter in which members of the profession possessed of reason

able skill and knowledge may differ as to the law, until it has been settled in the courts, nor if he is mistaken in a point of law on which reasonable doubt may be entertained by well-informed lawyers. Marsh v. Whitmore, 21 Wall. 178; Kemp v. Burt. 1 Nev. & M. 262.

Now, while it is quite true that section 5119, Rev. St. 1881, which took effect September 19, 1881, prohibited a married woman from entering into any contract of suretyship, and declared all such contracts yoid as to her, and while it had been thoroughly settled that a married woman who had joined in a mortgage of her separate property to secure the debt of her husband was to be regarded as his surety (Leary v. Shaffer, 79 Ind. 467), it had never been held, prior to the 23d day of January, 1884, when the judgment in Dodge v. Kinzy, 101 Ind. 102, was pronounced, that a mortgage executed by a husband and wife on lands held by them as tenants by entireties was void as to both of them. It cannot fairly be said, therefore, that, before the decision in Dodge v. Kinzy, supra, was made and promulgated, so as to have become known by those reasonably diligent in the profession, it was such a mistake to advise that a husband and wife might secure a debt of the former on his estate in lands held by himself as tenants by the entireties as could only have resulted from the want of ordinary knowledge and skill, or from the failure to exercise reasonable care and caution. The error must be regarded as one into which any reasonably careful and prudent lawyer might have fallen, and therefore one for which the attorney was not liable.

involved, or only to compel the performance of duties imposed by law. It is issued to an inferior tribunal, corporation, board or person to compel the performance of an act, which the law specially enjoins as a duty, resulting from an office, trust or station."

Notwithstanding these decisions, it is not clear that the writ is confined to public officers, or to public affairs. Lord Mansfield is credited with being the judge who developed this writ into one of great usefulness. 10 Prior to his chief justiceship the writ had been used principally, if not entirely, to enforce restitution to public offices, and it is always designated in the older abridgements and reports as "the writ of restitution." He acted on the principle, that where there is a wrong there should be a remedy, and decided that where there is a right to execute an office, perform a service, or exercise a franchise, and a person is kept out of possession or dispossessed of such right, the writ of mandamus should issue to assist such person, as a matter of justice, and as a matter of public policy to preserve peace, order and good government. 12 A chaplain was kept out of his

Is the Writ Confined to Public Rights? It has been often decided, that

the

writ of mandamus is never issued, except in the cases of public persons or officers, and to compel the performance of public duties.1 Other courts have expressed the same idea by different phraseology. The writ lies, only for the enforcement of public duties enjoined by law, only where there is a plain dereliction of duty by public officers, only when the party required to act occupies some official or quasiofficial position, only to enforce official duty imposed by statute, regularly only in cases relating to the public and the government, only where a public trust or official duty is

5

13 Stephens Nisi Prius 2291, 2292; R. v. London Assur. Co., 5 B. & Ald. 901; American R. F. Co. v. Haven, 101 Mass. 406; R. v. Bank of England, 2 B. & Ald. 620; R. v. Clear, 4 B. & C. 901; R. v. Stafford, 3 T. R. 646.

2 Chumasero v. Potts, 2 Mont. 242.

3 State v. Commrs. of Shelby Co., 36 Ohio St. 326.

4 State v. Tolle, 71 Mo. 645.

5 Bank of State v. Harrison, 66 Ga. 696.

6 Bacon's Ab. title "Mand."

lands attached to the chapel, which belonged to the chaplain by right of his function. The court held that the chaplain was entitled to the writ to restore him to his chaplaincy. This was a private right, and the principal reasons

operating on the court seemed to be, that otherwise he was remediless, it being very doubtful whether under the circumstances of the case, he could bring an action of trespass, or of ejectment. 13 In a subsequent case Lord Mansfield restored a dissenting clergyman to his pulpit, who had certain emoluments attached to his position or function. The court inclined to the opinion, that since the act of toleration dissenters and their re

ligious worship should have the assistance of the law, probably because such protection was extended to the State-church. In this opinion it was not considered necessary that

7 Parrott v. City of Bridgeport, 44 Conn. 180. 8 Bailey v. Oviatt, 46 Vt. 627.

9 State v. Gracey, 11 Nev. 223; People v. Insp. State Prison, 4 Mich. 187; Fremont v. Crippen, 10 Cal. 211; Smalley v. Yates, 36 Kan. 519; In re Woffenden, 1 Ariz. 237; Boggs v. Chicago, etc. R. R., 54 Iowa, 435. 10 People v. Steele, 2 Barb. 397. 11 Tapping on Mandamus 3. 12 Rex V. Barker, 3 Burr. 1265. 13 Rex v. Blooer, 2 Burr. 1043.

the functions should be a matter of public concern or attended with profit; but if such questions were involved in the case, the inducement would be greater for the court to act.1 14 In another case a few years later a dissenting clergyman was restored to his pulpit.

Whether there were any emoluments in this case does not appear, the note thereof being very brief. 15 In fact as is well known, the phraseology of the decisions rendered at this period and at an earlier date cannot be relied on, since they were often transcribed by the reporters from memory, or from the notes on the papers, and an examination shows that the various reporters often differ in their reports of the same case as to the statements of the judges. The later decisions seem inclined to limit the writ to public affairs. The writ has often been issued to ecclesiastical officers, such as bishops, but they were by law recognized as State officers, and were called on to perform duties imposed on them by law. The books show a number of cases where the writ was issued to officers of schools, but so far as the writer has been able to ascertain, such schools were corporations created by letters patent from the crown. Corporations are considered to be subject to this writ, because the courts have such supervisory jurisdiction over them to see that they act agreeably to the end of their institution, and that the king's charters are properly observed. 16 Lord Mansfield said, that the public interest would not be scrupulously weighed, and a number of cases are mentioned in the text-books, as being illustrations of that statement. These cases, however, seem to refer to corporate rights, and even in such cases it was necessary to show some public interest, because at one time the English courts refused to issue the writ in the case of trading corporations, unless there was some public interest involved in the case.17 This position, however, they have long since abandoned. 18 In the case of private charities, the writ has on some occasions been denied, and on other occasions granted.19 On the other hand the

14 Rex v. Barker, supra.
15 Rex v. Jotham, 3 T. R. 575.
16 R. v. Askew., 4 Burr. 2186.

17 R. v. Bank of England, 2 B. & Ald. 620.

18 Dacosta v. Russia Co., 2 Str. 783; Rex. v. Turkey Co., 2 Burr. 999; King v. St. Katherine's D. Co., 4 B. & Ald. 360.

19 Ex parte Trustees Rugby Charity, 9 D. & R. 214; R. v. Abrahams, 4 Q. B. 157.

writ has been refused for an office not found in the books and not judicially known.20

In the American courts there are but few cases to be found, where the writ has been applied for, for a function, dissociated from a public right, a public office or a corporation. The courts often quote with approval Lord Mansfield's ruling on the subject in Rex v. Barker, but, since the States have generally accepted the common law as it existed at the time of the first settlements in this country, such rulings made 150 years later are, of course, not binding. The common law relative to mandamus, as adopted in this country, was very vague and ill-defined, and in the absence of statutory definitions the courts have been compelled to establish the principles governing the issuance of this writ, and to a great extent they have followed the rulings of Lord Mansfield.

In Maryland, in 1799, a minister applied for the writ against the elders of his congregation. The real estate of the church was held in trust. By contract with the elders he agreed to preach to the congregation, and the elders contracted to furnish him with a house and a certain stipend annually. The court held that he was dispossessed of a function, carrying with it temporal rights, and that religion was a matter of public concern, and the writ was issued.21 In the same State, in 1805, a priest sought the writ against members of a certain congregation, to which he had been assigned by the bishop, who kept him out of the place and its functions. It does not appear, whether there were any emoluments attached to the position, nor whether the church was a corporation. The peremptory writ was issued because the return was adjudged insufficient in its statements.22 In Delaware, in 1855, a preacher applied for the writ against the parties who held the church property in trust, alleging that they would not allow him to accupy the pulpit of the church and preach to the congregation, which he was entitled to do under the laws of that religious denomination. The writ was refused, because it did not appear that there were any emoluments or compensation of any kind attached to the position or function of a preacher in charge of the church in question.23 In Massachusetts, 20 Anon., 2 Chit. 253.

21 Runkel v. Winemiller, 4 Harris & McH. 429.
22 Brosius v. Reuter, 1 Harr. & Johns. 551.
23 Union Church v. Sanders, 1 Houst. 100.