act by painstaking language has made it a substantive right that the jury shall pass upon the amount of the dispensation that is to be allowed to a defendant for the proportion of fault attributable to an employe, even though it might be thought that the general principle declared might not necesarily control in a case of abatement from the amount declared in a judgment for a tort.

Let us suppose it to be within the province of state law to provide, that a jury by its verdict in a case, under the federal act, should specify amount of recovery for the injury and also should say how much of that is to be recovered for the proportionate fault of the employes, could the court say too little had been allowed by way of reduction? Certainly under the act and under the principle in the Kennon case, it could not touch the former sum recov ered for the injury-and it sems to us that the amount for contributory negligence is as strongly submitted to the jury for determination. The act appears industriously to place within the power of the jury one question just as it does the other. It is a matter of substantive right, both in the aspect of negligence and in contributory negligence, and there is want of jurisdiction in the state court to do aught else than to affirm or reverse, so far as amount of damages is concerned, any local practice to the contrary not withstanding.

PARTNERSHIP-STOCKHOLDERS OF DE FACTO CORPORATION.-In Wesco Supply Co. v. Smith, 203 S. W. 6, decided by Arkansas Supreme Court, it was held that where an attempt to form a corporation was not perfected by filing its articles in the office of the Secretary of the State, after having filed them in the office of the county clerk, and the incorporators and others purchasing its stock held themselves out to the public and to those deal ing with the alleged corporation, it was a de facto corporation and there was no liability of its stockholders as partners.

The rule as generally supported is that there must be a statute attempted to be complied with to constitute a de facto corporation and a subsequent holding out itself as such, and though there be an appropriate statute authorizing organizations as corporations, there must be good faith in an attempt to comply therewith. In the instant case it does not appear whether there was an honest effort to comply with the statute or not. There seemed not the slightest ambiguity in the organizing statute. It required a filing, first, with the County Clerk, and a final filing with the Secretary of State.

All that was done was purely as preliminary to obtaining a certificate evidencing the creation of the corporation. The filing with the county clerk was but a step towards procuring the needed certificate, which was to be evidence of incorporation, or, in itself, full incorporation.

Taking it, that the rule invoked by the court does not apply where good faith is not exercised, was it right for the court on any theory of estoppel against a creditor dealing with the corporation as a corporation to determine as matter of law, that incorporators were not liable as partners? Fraud not being sufficient to give a corporation a de facto existence, it cuts no figure in the way of estoppel in favor of a participant in the fraud. There was considered in 85 Cent. L. J. 351 a question very similar to that involved in the instant case, and in the case there considered it was expressly stated by the court that there was attempt in good faith to create a corporation. It might be more difficult for the court to say the same in the instant case.

CHARITIES-CERTAINTY OF PURPOSE IN DEVISE-In Monaghan v. Joyce, 103 Atl. 582, decided by Chancery Court of Delaware, a devise to a bishop or his successor in a particular diocese "to be applied to such charitable purposes of the diocese of Wilmington, Dela., as he may deem fitting," was held not fatal by reason of uncertainty in its objects.

The court after considering various objections and overruling them, said: "The only feature which requires special consideration is that which imposes on the trustee the duty and right to select the charitable purposes. There are decisions of courts elsewhere, both in England and in this country, which take opposite views as to the validity of such a gift. Some hold it bad because the will of the trustee was substituted for that of the testator in selecting the objects, and others because there was no one who could demand and enforce performance by the trustee. On the other hand, these reasons were held insufficient by the courts." Then the court proceeds to speak of the question not being an open one in Maryland, referring to Griffith v. State of Dela., Ch. 421.

But the devise in this case was sustained on the principle that “a gift to a priest or minister in his public office, to be used by him for such public, religious and charitable purposes as he sees fit, will be held to be charitable, but it must be a gift to the donee in his official capacity to be expended for public charitable

of beneficiaries but there was a wide discretion given to the trustee in their selection. In this will neither the purposes, nor the beneficiaries of the charity are at all indicated, or remotely suggested. It seems to us there was no way of applying the devise either to purposes or beneficiaries. There was nothing to be executed except the will of the trustee and that not within any certain period of time. But Illinois courts appear to rule that though the object be uncertain yet if a trustee has power to make this certain gift may be sustained. Volunteers of America v. Pierce, 267 Ill. 406, 108 N. E. 418.

Also the principle of the instant case seems in accord with the ruling re Kimberly's Estate, 249 Pa. 469, 95 Atl. 82.

DUTY AND LIABILITY OF ATTORNEY IN REGARD TO HIS KNOWL EDGE OF THE LAW.

Introductory.-It would be extremely difficult to define the exact limit by which the skill and diligence which an attorney at law undertakes to furnish in the conduct of a cause is bounded; or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisfy his undertaking, and that negligence or want of care for which he is undoubtedly responsible.

"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

Reasonable Skill Required.—An attorney at law impliedly represents that he has the learning commonly possessed by members of his profession in good standing, and that he will exercise a reasonable degree of skill.3

Attorneys, counsellors and conveyancers, like agents in any other professional employment, and like all mechanics, artists and other employes, are bound to possess some skill and knowledge of their business or profession. This skill or knowledge. must be reasonable in amount, and such as the employer is entitled, in the nature of things, to expect from them. There can be no doubt that they are not responsible for every unskillful or mistaken act they. may commit, or for every erroneous opinion they may utter to those who consult and confide in them."зa

He not only professes to be reasonably well acquainted with the law and the rules and practice of the courts, but he is bound to use a reasonable degree of care, pru

(1) Citizens' Loan, etc., Assn. v. Friedley, 123 Ind. 143, 23 N. E. 1075, 7 L. R. A. 669, 18 Am. St. Rep. 320.

(2) Citizens' Loan, etc., Assn. v. Friedley, 123 Ind. 143, 23 N. E. 1075, 7 L. R. A. 669, 18 Am. St. Rep. 320.

(3) Savings Bank v. Ward, 100 U. S. 195, 25 L..Ed. 621; Gambert v. Hart, 44 Cal. 542; Stevens v. Dexter, 55 Ill. 151; Spangler v. Sellers, 5 Fed. 882; Morrison V. Burnett, 56 Ill. App. 129. Kissam v. Bremerman, 44 App. Div. 588, 61 N. Y. Supp. 75.

(3a) Estate of A. B., Tuck 247.

More than ordinary skill and diligence can be required of him only when he enters into a special contract calling for such. Any other rule would subject his rights to be controlled by the vagaries and imaginations of witnesses and jurors, and even to errors committed by courts. "This the law never has done; and the fact that the best lawyers in the country find themselves mistaken as to what the law is, and are constantly differing as to the application of the law to a given state of facts, and even the ablest jurists find themselves frequently differing as to both, shows both the fallacy and danger of any other doctrine; and especially is this so as to questions of practice, the construction of statutes, and particularly those arising under our criminal and probate laws."5

"These all admonish courts and jurors that great care and consideration should be given to questions involving the proper service to be rendered by attorneys when they have acted in good faith, and with a fair degree of intelligence, in the discharge. of their duties when employed under the usual implied contract. Under such circumstances, the errors which may be made by them must be very gross before the attorney can be held responsible. They They should be such as to render wholly improbable a disagreement among good lawyers as to the character of the services required to be performed, and as to the manner of their performance under all the circumstances in the given case, before such responsibility attaches."sa

If the duty is a plain one, and there are no doubtful questions of law for decision, nor any conflicting mode of precedure to embarrass or mislead, he is liable for a

(4) Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621; Hillegass v. Bender, 78 Ind. 225.

(5) Babbitt v. Bumpus, 73 Mich. 331, 41 N. W. 417, 16 Am. St. Rep. 585.

(5a) Babbitt v. Bumpus, 73 Mich. 331, 41 N. W. 417, 16 Am. St. Rep. 585.

remedies for enforcing or securing the have sufficient learning to determine, with reasonable accuracy, upon the appropriate rights of his clients, and sufficient skill to conduct the proceedings appropriate to such remedies.'

He does not profess to know all the law, or to be incapable of error or mistake in applying it to the facts of every case. Even the most skillful of the profession would be unable to measure up to such a standard.s

"God forbid," said Chief Justice Abbott, "that it should be imagined that an attorney, or a counsel, or even a judge, is bound to know all the law."

He is not liable for every mistake that may occur in practice, nor held responsible for every error of judgment in the conduct of his client's cause."

"For the common accountabilities of life, all men, even those of the lowest degree of legal sanity, are presumed to know the law, and are held responsible for its violations. Every member of the legal profession admits the necessity of this rule, and yet we all know that the greatest legal minds have fallen into error. Law is certainly the most comprehensive of all the sciences; its mastery and practice the most intricate of all the professions. Change and progress, if not improvement, are observable at every epoch of its history. If, under these circumstances, members of the legal profession were held accountable for the consequences of each act which may be pronounced an error by the courts of the country, no one, I apprehend, would be found rash enough to incur such fearful risks. On the other hand, it surely cannot

failure to understand and apply well-established principles of law, settled by text books and cases published long enough for him, exercising reasonable diligence, to have informed himself of them. In other words, an attorney has no right to be a clam, and shut himself up in the seclusion of self-conceived knowledge of the law. He must keep pace, so far as reasonable diligence and a fair amount of common sense will enable him to do so, with the literature of his profession, and what the courts have decided. But the law does not require and never has required of a member of the profession that he should be a true Sir Oracle of what the courts have decided or will decide as the law applicable to every given state of facts."16

Recently Enacted Statute.-Soon after the death of the claimant's husband her stepson demanded his share of his father's estate, and urged a partition suit. The claimant applied to the present testator, who was her attorney, for professional advice. The testator gave her advice without, it seemed, consulting the statute book of the preceding year, and advised her that, as widow, she had a dower interest only in the realty of her husband. A compromise was effected with the son, and a probable expense of a partition induced a pecuniary arrangement. Most of the personal property of the estate was set apart to the stepson, who released his claim to the real estate to his stepmother and half brother. The present testator drew the. papers, and superintended their execution and delivery. At the death of the claimant's husband there was in effect the following law, passed the year before the transaction in question: "At the decease of the husband or wife, intestate, leaving minor child or children, the survivor shall hold, possess and enjoy all the real estate. of which the husband or wife died seized, and all the rents, issues and profits thereof, during the minority of the youngest child.

(16) Hill v. Mynatt, Tenn., 1900, 59 S. W. 163.

and one-third thereof during his or her natural life."

The mistaken advice of her attorney having caused her considerable loss, the claimant sought to recover against his estate. In holding the estate to be liable for the testator's mistake, the court in part said: "In the present case, it is impossible to impute to the testator, the legal adviser, a want of knowledge, or of skill in his profession, in the ordinary acceptation of such a phrase. All who knew him could testify to his long and honorable career of laborious duty, continued through forty years of successful practice at the bar. The error arose from want of diligent watchfulness in respect to legislative changes. He did not remember that it might be necessary to look at the statutes of the year before. Perhaps he had forgotten the saying, that 'no man's life, liberty or property are safe while the Legislature is in session.' "

Law of Foreign State.-It has been held that an attorney is not presumed to know the law of a state other than the one in which he is practicing. An attorney who was practicing in New York, and who undertook to draw a contract for building on land in New Jersey, did not, by undertaking such employment, impliedly represent that he was acquainted with the laws of the latter state respecting the necessity of filing such contracts for protection against claims of workmen and materialmen under the mechanics' lien law.