imposition or surprise upon the defendant as would support an application on his part to set it aside entirely. These, and the like circumstances, though ordinarily indispensable, are yet far from sufficient in themselves, as constituting a case invoking the relief-extraordinary in its character-sometimes administered by the courts through the instrumentality of a decree for specific performance." There are then contracts which are perfectly valid, and which a court of equity would not set aside for fraud, mistake, or for any unfairness, but which, nevertheless, are so unfair that specific performance will not be decreed. This has always been the rule with courts of equity. They will not aid in the enforcement of a harsh and unjust contract, even though it be valid. The case cited also holds that the party seeking such relief must show, both by averment and proof, that the contract is, as to the defendant, fair and just. That the evidence must show such a case cannot be doubted, and this case distinctly holds that what must be proven on that subject must also be averred. This does not mean that it must be alleged in hæc verba that the contract was supported by an adequate consideration, and is, as to the defendant, fair and just. These might be held insufficient, but the fact that the contract is such as will satisfy the conscience of the chancellor in the respects mentioned must appear from a proper statement of facts. The rule has been frequently affirmed since, as in Nicholson v. Tarpey, 70 Cal. 608, 12 Pac. 778; Morrill v. Everson, 77 Cal. 114, 19 Pac. 190; and in the very recent cases of Windsor v. Miner, 124 Cal. 492, 57 Pac. 386; and Prince v. Lamb, 128 Cal. 120, 60 Pac. 689.

It is also contended that the complaint is defective because it does not show that the contract was founded upon an adequate consideration, and was not obtained through undue influence, inasmuch as the parties to it were husband and wife. A quotation is made from White v. Warren, 120 Cal. 323, 49 Pac. 129, 52 Pac. 723, giving what was said to be the effect of sections 158 and 2235 of the Civil Code as applied to husband and wife: "All transactions between the husband and wife by which one obtains an advantage over the other are presumed to be entered into by the latter without consideration, and under undue influence." Several opinions were rendered in that case, and it may be doubted whether the above statement of the law received the sanction of a majority of the court. Certainly another proposition contained in that opinion, upon which this in part depended, did not receive the approval of the court; that is, that the trustee obtains an "advantage," within the meaning of section 2235, Civ. Code, only when he gets the best of the trade. This construction would partially repeal the section, the main effect of which is to put the burden of proof upon the trustee to show the

propriety of his conduct in all transactions with his beneficiary. The rule is older than the Code, and is that such a contract, without any proof of unfairness, is voidable at the option of the beneficiary; but "it is possible for the trustee to overcome the presumption of invalidity." 2 Pom. Eq. Jur. § 958. The rule which was codified declared the presumption to be that the trustee got the best in every transaction with his beneficiary, and did not give an adequate consideration for what he got. To say that the beneficiary must prove the consideration was inadequate is to reverse this time honored rule. These two sections of the Code were discussed in Dimond v. Sanderson, 103 Cal. 97, 37 Pac. 189, and again in Tillaux v. Tillaux, 115 Cal. 663, 47 Pac. 691. The general conclusion reached in these cases accords with my views, although I would reach the end in a slightly different way. Section 158, Civ. Code, authorizes husband and wife to enter into any transaction with each other, "subject to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title on trusts." The most important provision on this subject found in the chapter on trusts is found in section 2235, which reads: "All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence." It will be seen that the presumption of unfairness is against the trustee and in favor of the beneficiary. beneficiary may get an advantage from the trustee. If the transaction is a fair one, each would get an advantage from the other. The presumption could not be in favor of and against each at the same time, that he obtained his advantage without sufficient consideration and by the use of undue influence. These conflicting presumptions are just as impossible in the case of husband and wife. Neither husband nor wife is a technical trustee of the other in respect to the subject of these transactions, but the section is to be construed, as all laws should be, with reference to conditions and circumstances. By our statutes so great a change has been made in the property rights of a wife from those formerly existing that it may be said that she is thereby, with reference to her separate property, emancipated from the control of her husband. This emancipation from a control which was previously quite complete was largely accomplished by section 158. But in giving her the right freely to contract in regard to property with her husband the legislature naturally sought to give her some protection from the influence of her husband. The right to control her own affairs would not free her from what usually in fact is, and is always presumed

The

I

to be, the predominating influence of her husband. At common law she could enter into no contract, and her husband could not convey property to her, but only to a trustee for her benefit. Her civil existence was merged in that of her husband. She could not be held responsible for a common assault committed in his presence, but he would be liable for such acts on her part. In fact, the entire framework of the law in regard to the property rights of married women rested upon the assumption of the do-. minion of the husband over the wife. This section was a change in that system in favor of the wife, and the protection here furnished is to her. I do not contend that there is no legal presumption that the wife has great influence over her husband. Such presumption does exist, and may be an important factor in any litigation between them. The question is whether this influence is presumed to be "undue influence," within the meaning of section 1575 of the Civil Code, without proof of the fact, in case she has a business transaction with her husband. think not, and such, I think, is the effect of the two cases I have cited above. In this case, as already stated, the circumstances are not shown, save by the recitals in the contract. If we can regard those, it appears that the wife had brought suit against her husband to recover two promissory notes of the alleged value of $4,000, and had besides sued him for a divorce. By the agreement she relinquished her claim to the notes and promised to dismiss her action for a divorce "on the merits." She avers that he paid her the money, and conveyed a portion of the homestead to her, and refused to convey the balance. Assuming that these matters may be considered, they show that the wife was not then under the predominating influence of her husband, and that the consideration for the agreement may in part have been to compose a matrimonial dispute. far as it was, that would not be capable of pecuniary estimation. But there is nothing to show that the contract was fair and just as to the defendant. Upon this proposition the construction of section 158, Civ. Code, has nothing to do, while the recited facts suggest the possibility of unfairness. She could have shown in her complaint that she made claim to the notes in good faith, and was not founding her claim upon violated confidence reposed in her by her husband, as was the case in Brison v. Brison, 90 Cal. 323, 27 Pac. 186. So, too, in regard to the action for a divorce. She could have shown that it was not brought for the purpose, and was not used to extort a harsh and unreasonable settlement from the defendant. That such an action could be so used under some circumstances is obvious. For instance, charges might be made in some cases which the defendant would make great sacrifice to avoid a trial of. A reversal will necessitate a reconstruction of the pleadings if the case

So

(39 Or. 466) ALBERT v. CITY OF SALEM et al. (Supreme Court of Oregon. Oct. 7, 1901.) APPEAL AND ERROR-COSTS-RETAXING SALE. 1. Where, in the absence of the official stenographer, the plaintiff and defendant employed stenographers to report the testimony and transcribe the same for use in the trial court, and the cost was not taxed in the trial court, and no appeal was taken therefrom, the supreme court will not allow such cost.

2. Where the transcript contained copies of the original answer, motion to strike out parts thereof, a demurrer thereto, an order of the court thereon, an amended answer, a motion to strike out parts thereof, and a demurrer thereto, which were rendered nugatory by a second amended answer, the expense for the copies thereof in the record is not taxable as costs, under Sup. Ct. Rule 24 (37 Pac. ix.), providing that the clerk shall not tax costs for any matter included in the transcript contrary to the rules.

On plaintiff's motion to retax costs. Motion denied.

For former opinion, see 65 Pac. 1068.

MOORE, J. This is a motion to retax costs. The decree having been reversed, the appellant filed a cost bill, and, objections thereto having been interposed, he filed an amended verified statement, from which it appears that he paid $30 to a stenographer for transcribing the shorthand notes of the testimony, and $25 to the clerk of the trial court for the transcript of the cause. The sum paid for transcribing the testimony was disallowed by the clerk, who taxed only $15 for the transcript, whereupon his action in that respect was brought up for review. It appears that in the absence of an official reporter in the trial court the plaintiff and the defendant employed stenographers, who reported the testimony in shorthand, and transcribed the notes thereof for the use of, and which were used in, the trial court, and thereafter sent up with the transcript. If the cost of extending the notes is allowable at all under the circumstances, it was a disbursement in the trial court; but, not having been there taxed, and no appeal therefrom having been taken involving the question of costs, this court is powerless in the matter. An examination of the transcript shows that it contains copies of the original answer, motion to strike out parts thereof, a demurrer thereto, an order of the court thereon, an amended answer, a motion to strike out parts thereof, and a demurrer thereto, which were rendered nugatory by the filing of a second amended answer; and hence the outlay for the copies thereof in the record is not taxable as costs. Rule 24, 35 Or. 603, 37 Pac. ix., and note to rule 2, 35 Or. 591, 37 Pac. vi. The computation of the fees properly

chargeable for procuring the transcript of the cause, after eliminating such superfluous matter, shows that the clerk made a very liberal allowance therefor. These considerations lead to a denial of the motion.

(42 Or. 624)

WALLING v. TREVOR. (Supreme Court of Oregon. Oct. 7, 1901.) APPEAL-MOTION TO DISMISS-SERVICE.

Where the notice of an appeal contained the signature of two attorneys, and the notice of motion to dismiss the appeal was served on only one of them, who wrote to the clerk that he was not, and never had been, the attorney for the appellant, and there was no appearance for the appellant, the motion to dismiss will be continued.

Appeal from circuit court, Tillamook county; H. P. Boise, Judge.

Action between Martha J. Walling and William Trevor. From the judgment in favor of Trevor, Martha J. Walling appeals. Heard on motion to dismiss the appeal. Motion continued.

P. H. D'Arcy, for the motion.

BEAN, C. J. The notice of appeal in the above-entitled case bears the signatures of Wm. Reid and T. B. Handley as attorneys for the appellant. Notice of motion to dismiss the appeal was served upon Wm. Reid. At the hearing there was no appearance for the appellant, and Mr. Reid, in a letter to the cierk, says that he is not, and never was, attorney for the appellant. In view of this fact, it is ordered that notice of the motion to dismiss be served upon Mr. Handley, and further consideration of the motion will be continued.

(63 Kan. 521)

MARLIN v. TEICHGRAEBER. (Supreme Court of Kansas, Division No. 1. Oct. 5, 1901.)

INSOLVENT CORPORATION-GENERAL ASSIGNMENT-VALIDITY AND EFFECT.

1. A corporation, being insolvent, and having decided to draw its business to a close, executed a chattel mortgage to a creditor, and on the next day made a general assignment of all its property for the benefit of creditors, subject to the mortgage. The chattel mortgage was never accepted by the mortgagee, and no lien asserted under it. Held, that the assignment was not invalidated, and that, if the execution of the mortgage and deed of assignment be regarded as part of the same transaction, the mortgage alone falls, and the assignment is not affected.

2. There being no fraud shown which inhered in the assignment itself, the fact that the debt sued for was fraudulently contracted furnished no ground for the seizure by attachment of property covered by a deed of general assignment made by the debtor.

(Syllabus by the Court.)

Error from district court, Greenwood county; A. M. Jackson, Judge.

Action by R. E. Teichgraeber against W. S. Marlin. Judgment for plaintiff, and defendant brings error. Reversed.

Jas. Schultz and Hodgson & Hodgson, for plaintiff in error. D. B. Fuller, for defendant in error.

SMITH, J. In an action brought by the defendant in error against the Greenwood County Co-operative Exchange Association, a corporation, upon an account for goods sold and delivered, a writ of attachment was sued out at the commencement of the suit, and levied on personal property in the possession of the assignee for the benefit of the creditors of said corporation. The deed of assignment was executed and delivered on July 15, and the writ of attachment levied on July 30, 1896. The grounds for the attachment, as stated in the affidavit, were two: First, that the defendant corporation had assigned, removed, and disposed of its property, or a part thereof, with intent to hinder and delay its creditors; and, second, that it fraudulently contracted the debt and incurred the obligation and liability for which the suit was brought. On the hearing of a motion filed by the assignee to discharge the attached property, it appeared that at a meeting of the directors of the Cooperative Exchange Association, held on July 14, 1896, it was decided to draw the business of the company to a close. A resolution was passed, authorizing a mortgage to be executed in favor of the First National Bank to secure a note of the association indorsed by the directors. At an adjourned meeting, held on the following day, the directors ordered that an assignment be made for the benefit of creditors. Pursuant to this action a chattel mortgage was executed on July 14th to secure a note to the bank for $350. The bank officers, however, refused to accept the mortgage, giving as a reason that the note held by the bank was amply secured by individual indorsement. The mortgage, however, was filed for record. It purports to assign all the property of the corporation for the purpose of paying the debts of the concern ratably and without preference, except that it was subject to the chattel mortgage mentioned. It was shown on the hearing that the balance of the account sued on was contracted for goods obtained on representations which led the seller to believe the concern was solvent, when in fact the contrary was true; and that, had defendant in error known of the true financial condition of the association, he would not have parted with his merchandise. On these facts the court below overruled the motion of the assignee to discharge the attached property, and ordered the same sold in satisfaction of the claim sued on.

We are quite clear that the court erred in its ruling on the motion. If the execution of the mortgage and deed of assignment be taken together as part of the same transac tion, the mortgage alone falls, and the validity of the assignment is not affected. Marshall v. Van De Mark, 57 Kan. 304, 46 Pac.

308. If the mortgage was fraudulent as against creditors, the assignee could maintain an action to set it aside. Chapin v. Jenkins, 50 Kan. 385, 31 Pac. 1084; Walton v. Eby, 53 Kan. 257, 36 Pac. 332. In this case the mortgage became no lien on the property by reason of its nonacceptance by the mortgagee. No rights were asserted under it, and there is no claim that the debt which the directors attempted to secure by it was not valid and just. The fact that the debt sued for was fraudulently contracted furnished no ground for the seizure of property covered by the deed of assignment. There was no fraud shown which inhered in the assignment itself, or had relation thereto. The false statements on which defendant in error relied when he sold the goods were made more than two months prior to the execution of the assignment. If the seller had rescinded the contract, and sought to reclaim his goods from the assignee, a different question would arise. The fraudulent contracting of a debt or obligation is but one of the grounds for attachment contained in the statute. There are ten others. If the mere fact that the defendant's property was subject to attachment would authorize its seizure after it had been assigned for the benefit of itors, it follows that no assignment for the benefit of creditors made by a nonresident could be upheld; nor where the assignor had absconded with intention to defraud his creditors, or left the county of his residence to avoid the service of summons; nor where any other act of his justified an attachment under the statute. See Batten v. Richards, 70 Wis. 272, 35 N. W. 542; Wilson v. Berg, 88 Pa. 167; Batten v. Smith, 62 Wis. 92, 22 N. W. 342. The judgment of the court below will be reversed, with directions to proceed further in accordance with this opinion. All the justices concurring.

(63 Kan. 516)

STATE v. HERBERT. (Supreme Court of Kansas, Division No. 1. Oct. 5, 1901.)

CRIMINAL LAW-EVIDENCE-IDENTITY-PRIVILEGED COMMUNICATIONS-BURGLARY. 1. Where an offense is committed in the darkness, a witness who did not distinguish the features but did hear the voice of the one who committed the offense may testify that the defendant was the offender, and that he recognized him by his voice.

2. Where statements are made to an attorney in regard to a pending litigation when no employment as an attorney is suggested or anticipated, and the relation of attorney and client does not exist, the communications are not privileged.

3. The opening of a window closed only with a wire screen upon which the window sash rested is sufficient to constitute a burglarious "breaking."

(Syllabus by the Court.)

Appeal from district court, Douglas county; S. A. Riggs, Judge.

William Herbert was convicted of burglary, and appeals. Affirmed.

W. W. Nevison, Robert McWilliams, and Barker & Summerfield, for appellant. A. A. Godard, Atty. Gen., W. B. Brownell, and Louis C. Poehler, for the State.

JOHNSTON, J. William Herbert was prosecuted on a charge of burglariously entering the residence of Simon Gilson in the nighttime, with the intent to ravish Helen Louisa Gilson. He was convicted, and now insists that the evidence does not sufficiently connect him with the crime, nor sustain the conviction. The testimony tends to show that Miss Gilson and her mother were sleeping in separate rooms in the second story of the house; that about midnight Miss Gilson awakened, and in the moonlight saw a man at her bedside; that he tried to turn down the bedclothes, and made an assault upon her; that she resisted vigorously, when he struck her with a club, which stunned and severely wounded her; that the mother, hearing the struggle, came to the assistance of her daughter; that the burglar struck the mother several times, breaking her cheek bone and some of her fingers, and then renewed the assault upon the daughter, who, although seriously wounded, with the assistance of her mother, repelled the attack, and defeated his purpose. The burglar then demanded money, and, having secured a pocketbook and a watch, he left the house. While he was in the house there was no artificial light, and for that reason neither mother nor daughter observed his features, and were unable to say whether he was a white or black man. They testified, however, that they recognized his form and clothes, and also identified him as the one who was in the room by his voice. This testimony, in connection with statements made by him after the offense was committed, and of his presence in the vicinity of the Gilson home on that night, are sufficient to uphold the verdict. Considerable complaint is made of the identifying testimony given by the witnesses named. Miss Gilson testified, over objection, that the defendant was the man who made the assault. In view of her means of information, which has already been stated, the testimony was competent. She was subject to cross-examination as to her means of knowledge, and the weight to be given her testimony was for the jury. The light which came through the windows was sufficient to enable her to see the figure, movements, and clothing of the burglar; and a still better means of identification was his voice, which she subsequently recognized. This is the principal and most reliable identifying evidence of crimes committed in the darkness or upon persons who are blind, and in such cases the rule is that a witness may testify that he recognized the accused by his voice. Here the matter of identity did not rest on the voice alone, but was founded on other

personal appearances and peculiarities; and the circumstances and character of the assault would, in the nature of things, make a lasting impression on her, and give her a clear conception of identity. Com. v. Hayes, 138 Mass. 185; People v. Willett, 92 N. Y. 29; State v..Kepper, 65 Iowa, 745, 23 N. W. 304; Price v. State, 35 Tex. Cr. R. 501, 34 S. W. 622; Givens v. State, 35 Tex. Cr. R. 563, 34 S. W. 626; Underhill, Cr. Ev. § 56. E. F. Caldwell, the postmaster at Lawrence, testified in regard to statements made to him by the defendant, and it is contended that they were privileged, and should have been excluded. Caldwell is an attorney, and several years before had acted in that capacity for the defendant. He was not employed by the defendant at this time, nor does it appear that there was an anticipated employment; indeed, the testimony of the defendant makes it clear that he had employed other counsel, in whose ability he had greater confidence, and that he expected that the attorney now employed would accomplish an acquittal, which Caldwell had previously failed to do. To make the communications between them privileged, the relation of attorney and client must exist; and this the testimony fails to establish. It is true that he was a former client of the witness, but that relation had long since ceased, and it does not appear that there was any artifice used in drawing out the statements, or that the defendant was seeking professional advice. There was no suggestion of a retainer, or the payment of a fee, nor was there any suggestion of employment. While the payment of a retainer or fee is the best evidence that the relation of attorney and client exists, such payment is not absolutely essential. If an attorney is consulted in his professional capacity, and he allows the consultation to proceed, and acts as adviser, the fact that no compensation was paid, or that the consultation was ended, and the relation broken, would not remove the seal of secrecy from the communications made. Here, however, it was manifest that the defendant talked with the witness as a neighbor and friend, and was only endeavoring to learn from him what public opinion was as to his connection with the offense. The court ruled correctly in admitting the evidence. The testimony of John Rathbone is complained of, but, the grounds of objection not having been stated to the district court, it cannot be made a basis of an assignment of error. Other objections to testimony are noted, but we find thing in them that is material, or which requires comment.

It is finally contended that the entrance to the house was really through an open window, and did not constitute a "breaking," within the meaning of the statute. It appears that there was a wire screen in the window, and upon which the window rested; that the screen was removed, and thrown to the ground, and through the opening thus

made an entrance was effected. The remoral of the screen so fastened was sufficient to constitute a burglarious "breaking." State v. Powell, 61 Kan. 81, 58 Pac. 968; State v. Moon, 62 Kan. 801, 64 Pac. 609. The judg ment of the district court will be affirmed. All the justices concurring.

(63 Kan. 545)

STATE v. SHEPHERD et al. (Supreme Court of Kansas, Division No. 2. Oct. 5, 1901.)

LARCENY-FELONIOUS INTENT.

1. When defendants, tried upon a charge of grand larceny, admit the taking, but defend upon the ground that the taking was in jest, and with the intent to return the property presently to the owner, and the property sc taken is returned to the owner, they are entitled to a charge from the court defining the term "felonious intent" as used in connection with larceny.

2. "The term 'felonious intent' as used in relation to larceny means to deprive the owner, not temporarily, but permanently, of his property, without color of right or lawful excuse for the act, and to convert it to the taker's use without the consent of the owner." In re Mutchler, 40 Pac. 283, 55 Kan. 164.

(Syllabus by the Court.)

Appeal from district court, Rush county; J. E. Andrews, Judge.

Milton Shepherd and Charles S. Tart were convicted of burglary, and appeal. Reversed.

S. I. Hale and H. Fierce, for appellants. A. A. Godard, Atty. Gen., and H. L. Anderson, for the State.

POLLOCK, J. Appellants were arrested and tried upon the charge of grand larceny in the stealing of a saddle, convicted of petit larceny, and appeal to this court.

The sole claim of error relied upon for reversal by appellants arises upon the charge of the court to the jury, and the refusal to charge as requested by defendants.

It is contended by counsel for appellants that the taking of the saddle stands admitted in the record. The defense relied upon is that it was taken in jest, for a temporary purpose, with the design of returning it to the owner, and that the trial court erred in not charging the jury, as requested by appellants, upon this theory of the defense. There would seem from the briefs filed on behalf of the state to be no contention as to the right of appellants to the charge requested except upon the one ground urged,-that the taking of the saddle does not stand admitted in the record, but was denied by appellants upon the trial,-and, as a consequence, there was no testimony upon which to base such a charge. An examination of the testimony found in the record shows that the appellants admitted upon the trial the taking of the saddle from the horse of the owner, Moran, and the placing of the same upon a horse ridden by one of the appellants, and that the conflict in the testimony arises upon the proposition as to whether the saddle was